This post is the first in a series about human rights and environmental, climate, and energy justice. The series builds on a forthcoming article, Environmental Justice as Environmental Human Rights, by Member Scholar John H. Knox and co-author Nicole Tronolone.
For over 40 years, the environmental justice movement in the United States has drawn attention to the disproportionate burdens African Americans, Native Americans, and other people of color face from environmental harm. Robert Bullard, Luke Cole, Sheila Foster, Dorceta Taylor, Harriet Washington, and many other scholars have detailed ways that environmental pollution and other types of environmental degradation harm marginalized communities, and advocates have fought environmental discrimination at every level, from local municipalities to the federal government.
Their efforts have met with some success. Politicians, at least in the Democratic Party, regularly pay lip service to these issues and introduce proposals to address them. Nearly 30 years ago, President Bill Clinton issued an executive order directing federal agencies to consider disproportionately high or adverse impacts on “minority populations and low-income populations” and develop agency-wide environmental justice strategies. The Biden administration has created an interagency council and an advisory council on environmental justice, and it has adopted the Justice40 Initiative to try to provide 40 percent of federal investments on climate change and clean energy to disadvantaged communities.
Nevertheless, U.S. law still fails to effectively protect against environmental racism. Many studies document that African Americans, in particular, are at increased risk of cancer, higher rates of respiratory diseases, and increased risk of mortality because of disproportionate exposure to environmental harm.
Although the U.S. environmental laws that regulate pollution and toxic substances are strong in many respects, they are silent on discrimination. Indeed, they may even contribute to such discrimination by focusing their attention on national or regional levels of pollution and ignoring “sacrifice zones” where levels of pollution are so high that they blight residents’ lives. Some of these places have become infamous for their exposure to air pollution (e.g., Cancer Alley in Louisiana), water pollution (e.g., Flint, Michigan), and gas pipelines (e.g., Standing Rock). But they are far from the only places where people of color and low-income communities are subjected to discriminatory environmental harm.
One might expect civil rights laws to provide an answer, but for decades, efforts to bring them to bear on environmental racism have failed. Perhaps the most telling statistic is that of the more than 300 claims of environmental discrimination filed with the U.S. Environmental Protection Agency's (EPA) Office of Civil Rights, the office found discrimination in only one case — and that decision came 25 years after the claim was filed.
Over the same period that advocates have fought for environmental justice in the United States, a parallel process has taken place at the international level. Similarly spurred by creative advocacy, international bodies have brought human rights law to bear on environmental issues. In cases involving everything from agricultural pollution to global climate change, regional tribunals and global human rights bodies have applied a wide range of human rights to environmental issues, which has resulted in a detailed set of norms that can be described as environmental human rights law.
The most successful climate decision yet, the 2019 Urgenda decision by the Dutch Supreme Court, was based squarely on international human rights law. Many more cases are pending, including an advisory opinion on climate change before the International Court of Justice. And in July 2022, the UN General Assembly recognized the human right to a healthy environment for the first time.
Efforts have been made to forge connections between environmental justice in the United States and environmental human rights internationally. Environmental justice scholars have sometimes stressed the relevance of international human rights law to issues of environmental discrimination, and U.S. advocates have occasionally brought claims to international human rights bodies. However, despite these important exceptions, the relationship between efforts to develop environmental justice norms in the United States, on the one hand, and the efforts to develop environmental human rights law internationally, on the other, can be characterized more as one of mutual benign neglect than as a flourishing exchange of ideas.
In an article to be published this January by the Vanderbilt Journal of Transnational Law, Nicole Tronolone and I try to build a stronger bridge between environmental human rights law and the environmental justice movement in the United States. We hope that clarifying their normative connections will lead to further productive development in both areas.
We provide the first systematic evaluation of the U.S. record in light of environmental human rights standards, including those based on authoritative interpretations of treaties to which the United States belongs. We show that although U.S. environmental law is strong in many respects, its failure to take effective steps against environmental racism places it in violation of these international standards — as international bodies are increasingly recognizing.
We recognize that stronger linkages between environmental justice and international human rights law are not a panacea for environmental racism. We are keenly aware that the United States has constructed barriers to the domestic application of international human rights law. Although the sources of environmental human rights norms include treaties binding on the United States, the U.S. government has been careful to join those treaties only under terms that prohibit their direct enforcement by U.S. courts.
Nevertheless, we believe that a clearer understanding that environmental discrimination violates international human rights law would help in advocacy and educational efforts both in the United States and internationally. In particular, U.S. advocates could bring more cases to international human rights bodies which, unlike U.S. courts, have shown their willingness to apply human rights norms to environmental issues. While those bodies can’t issue binding decisions, they can complement and support domestic advocacy by drawing greater attention to cases of environmental injustice.
In short, the quest for environmental justice is also a quest for environmental human rights. The fight is the same fight, and the lessons learned in one arena can help in the other.
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John Knox | October 23, 2023
The quest for environmental justice is also a quest for environmental human rights. The fight is the same fight, and the lessons learned in one arena can help in the other.
Alexandra Klass | October 11, 2023
Under the Federal Power Act, the Federal Energy Regulatory Commission (FERC) has an obligation to maintain national grid reliability and to ensure “just and reasonable” rates for wholesale electricity sales and transmission. Notably, Congress has not granted FERC authority over the siting and permitting of most interstate transmission lines, as it has with interstate natural gas pipelines, leaving that authority over power lines primarily with the states. Even in the absence of congressional action, however, FERC has powerful tools using its existing statutory authority over rates and reliability to incentivize regulated transmission owners and grid planners to build the large-scale regional “macro-grid” the country needs.
Sandy Ma | October 3, 2023
President Biden had ambitious plans, with the 2022 Inflation Reduction Act (IRA) and 2021 Bipartisan Infrastructure Law (BIL), to rebuild America’s aging infrastructure and revitalize our economy by fighting climate change through creating green jobs, reducing our greenhouse gas (GHG) emissions, and championing environmental justice. In the scant few years since the passage of these monumental laws, changes are already taking root. For example, in Maryland, funding is flowing to various sectors of the state — private and public — for grid modernization, transportation planning, funding green banks, and cleaning polluted air, and all of it in the service of environmental justice.
James Goodwin | October 2, 2023
If a tree stands in the forest, and there’s no economist around to tabulate its benefits to humans, do those benefits still exist? For government agencies, the answer has long been, “No.” But the Biden administration is poised to change that.
James Goodwin | September 20, 2023
Last month, the Biden administration rolled out the latest piece of its comprehensive Modernizing Regulatory Review initiative: a proposed guidance on how to account for “ecosystem services” in regulatory analysis. As I explained in my comments, if implemented well, this guidance will reinforce the administration’s broader efforts to reprogram an important step in the rulemaking process known as regulatory analysis so that it provides a fairer and fuller picture of the impacts of planned rules.
Sandy Ma | September 19, 2023
Net zero, or carbon neutral, policies are changing the discussions around reducing greenhouse gas emissions. But, even with the wide adoption of the idea, questions remain. How much does the public understand about net zero? How is the policy defined, and what are its goals? Most significantly, is it addressing climate justice?
Daniel Farber | September 14, 2023
This week, the D.C. Circuit hears three cases challenging the use of federal regulations to push adoption of electric vehicles and to allow California to forge a path toward zero-emission cars. If all three cases go badly, the regulatory system would be disabled from playing a role in this area. This would be a huge setback, though there are reasons to think that it would only delay, rather than prevent, the transition to clean cars.
Daniel Farber | September 12, 2023
In three weeks, the U.S. Supreme Court starts its 2023 Term. There are two blockbuster cases on the docket. In one case, the issue is whether to overrule the Chevron case, which has been foundational to administrative law for the past four decades. In the other, the issue is agency power to sanction violations of the law. Given the Court’s conservative supermajority, there’s a real threat to the power of agencies like the U.S. Environmental Protection Agency (EPA) to issue regulations and enforce the law.
Marcha Chaudry | September 7, 2023
Picture a food system where the responsibility for environmental disasters related to industrial agriculture no longer falls on the shoulders of taxpayers or small-scale farmers. Instead, it places the onus exactly where it should be — on the corporations and industrial operators who are reaping massive profits from the factory farming model. The tide is turning, and it’s high time for these corporations to take responsibility for the system they've created.