This post is the second 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.
Member Scholar John Knox’s insightful article, Environmental Justice as Environmental Human Rights, points to how the United States has fallen short — way short — of meeting international norms of environmental justice. For environmental justice (EJ) advocates in this country, this unwelcome news is not new news. The country’s failure to address the distributional consequences of environmental policy gave rise to the EJ movement decades ago, but, as the article details, Black Americans still suffer disproportionately from environmental exposures.
At one time, and for too long a time, racism led agencies to actively discriminate against Black Americans. As this changed, mainstream environmental groups were slow to take up the EJ cause. More recently, the influence of cost-benefit analysis on environmental policy has led agencies to ignore the distributional consequences of regulatory policies.
A recent Center for Progressive Reform study indicates another reason for the lack of progress. The study, which examined more than 52,000 public comments recently submitted in five climate and energy rulemakings, shows how agencies failed to engage the public in general, and marginalized groups and individuals in particular. There were public comments, but they were mostly anonymous, identical copies generated during mass grassroots campaigns by other interests. As such, the comments likely had (or will have) little influence in the rulemaking process.
The Biden administration has taken a series of steps to address the previous failures by tasking agencies with educating the public about the regulatory process, making regulatory materials more accessible and usable, reaching out to impacted communities, and holding public listening sessions, among other steps.
While these are helpful actions, agencies must do more. When agencies reach out to members of historically marginalized communities, their input will often be in the form of stories about the members’ experiences. Yet, this input will not matter if agencies ignore or devalue it because storytellers have not used the standard technocratic and legal narratives of policymaking.
Professor Knox’s article shows how a focus on international norms can bring more attention to the EJ issue. Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides that “[e]very citizen shall have the right and the opportunity … to take part in the conduct of public affairs, directly or through freely chosen representatives.” This commitment, as he explains, encompasses “the right to participate in environmental decision-making as vital to the ability of individuals and communities to seek to protect their other rights from environmental harm.”
Yet, as Francesca Polletta and John Lee note in the American Sociological Review, the dominant technocratic discourse has become a form of privilege that disadvantages marginalized communities and their stories. Scholars of science and technology (STS) recognize there is a “technical information quandary” since many members of marginalized communities, along with many other people, lack the technical training to participate in policymaking. This makes “access to information … a form of political power” that disfavors those who are unable to use technical information in their favor.
Although stories are often a better way of conveying the disparate treatment of historically marginalized communities, they are devalued, if not excluded, because of a preference for empirical methodologies, the mistaken belief that agencies cannot judge the accuracy of stories using rulemaking procedures, and the understanding that agencies lack a rational methodology to mix technological and legal information with stories about individual and community impacts.
None of those objections justify the failure to listen to stories about the disparate impacts of environmental policies. There is a vast literature about storytelling that demonstrates how to evaluate the relevance and reliability of stories. Moreover, as Liz Fisher and I have written about, agencies have the capacity to accommodate multiple viewpoints and perspectives, whether they are qualitative, quantitative, or both, in rulemaking.
According to conventional expectations, the idea of incorporating stories in rulemaking will seem radical, but it is conventional expectations that have led to the country’s failure to effectively promote environmental justice. International norms highlight this failure. There cannot be a “right to participate” if the best method of participating — storytelling — is devalued or ignored.
Now is the time — past time, really — to build the procedures we need to listen to the environmental justice stories no one hears.