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.
