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Feb 04, 2016
Shea Diaz is on the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate.
In the United States, poor people and people of color experience higher cancer rates, asthma rates, mortality rates, and overall poorer health than their affluent and white counterparts. The Environmental Justice Movement (EJM) links these health disparities to higher concentrations of environmental pollution sources in these communities. This disproportionate exposure to environmental harms in low-income, minority communities is known as “environmental injustice.” Since the EJM’s inception in the 1960s, empirical evidence of environmental injustice along racial and socioeconomic lines has been produced time and again. Vulnerable populations, however, continue to bear a disproportionate burden of society’s environmental harms, as illustrated in the recent water crises in Flint, Michigan, and St. Joseph, Louisiana.
A commitment to eradicating environmental injustice requires a nuanced understanding of its causes. EJM activists often highlight corporations’ role in creating environmental injustices, arguing that firms actively discriminate against racial minorities when making decisions about where pollution sources will be placed. More recently, however, many in the movement have recognized the causal complexity of environmental injustice.
Disentangling the causes of environmental injustice presents an empirical problem common in social science: it can be nearly impossible to isolate causal variables when it comes to human phenomena. Attempting to address this problem, researchers have developed innovative methodologies to test various theories of causation for environmental injustices. While it is clear that discriminatory siting plays a role, other causes may help explain both the behavior of firms and the disparate environmental harms experienced by low-income populations and minorities: Regulators may enforce environmental laws and regulations unequally, affected communities may lack political power, and market dynamics may drive both businesses and residents to low-cost real estate. It is important to understand the contribution of each of these to environmental injustice because they may call for different policy responses.
This paper surveys the evidence for each of these possible causes of environmental injustice. I conclude that, because empirical research shows that discriminatory siting, unequal regulatory enforcement, and unequal political power are the major culprits for environmental injustice, policymakers should work to level the playing field and allow for meaningful stakeholder participation in siting decisions and increase enforcement efforts in minority and impoverished communities.
Among all the potential explanations for why impoverished people and people of color are more likely to experience environmental harms, the most alarming theory is that corporations actively target these communities because they lack the resources and political capital to resist the siting of environmental hazards in their communities. One piece of evidence frequently cited to support this theory is the “Cerrell Report,” a document produced by a consulting firm, Cerrell Associates, advising the California Waste Management Board on where to site trash incinerators. The report states:
All socioeconomic groupings tend to resent the nearby siting of major facilities, but middle and upper socioeconomic strata possess better resources to effectuate their opposition. Middle and higher socioeconomic strata neighborhoods should not fall within the one-mile and five-mile radius of the proposed cite.
The recommendation that logically follows this report is sinister: polluting firms should target the communities with the least amount of political and financial capital when making siting decisions.
Even though it was produced over thirty years ago, the Cerrell Report continues to be held up as an illustration of dastardly polluters committing environmental injustice. The analysis in the report hinges on the fact that minority and impoverished communities lack the same political power as more affluent and white communities. Consequently, firms in these areas are less likely to be the subject of regulatory scrutiny.
However, intentionally siting high polluting facilities in racial minority and impoverished communities is not the only factor contributing to environmental injustice. As demonstrated in the following sections, facially neutral environmental enforcement principles, unequal enforcement of environmental regulations, and lack of political power each play a role in causing polluters and low-income minorities to end up in the same geographic locales.
While regulatory agencies are frequently blamed for environmental injustice, some have suggested that environmental injustice is an unintended consequence of neutral risk-management strategies. As the theory goes, policymakers seek to place noxious facilities in areas with low population density in order to manage the risk associated with these facilities. While this “makes good sense as a means of minimizing public health risks,” this criterion increases the number of facilities in some rural areas highly correlated with poverty. Thus, the policy may have the unintended consequence of targeting disadvantaged communities “to act as hosts to solid and hazardous waste landfills.” Policymakers should closely examine the principles that guide regulatory siting decisions for their potential to subject vulnerable populations to a disproportionate amount of environmental harm.
Regulators are also guilty, in at least some instances, of applying enforcement initiatives inequitably. Advocates for environmental justice often contend that low-income communities of color experience disproportionate environmental harm because of unequal enforcement of environmental protection laws and regulations in these communities. Some believe that regulatory capture has resulted in lackluster detection and penalty. For example, politicians in the southern United States have been accused of lax enforcement of environmental regulations in order to profit from outside industry relocating to their jurisdictions.
Empirical evidence confirms that low-income areas are not subject to the same level of enforcement as more affluent areas. The role of race, independent of income, in influencing enforcement decisions is less clear. Moreover, the concentration of enforcement efforts in more affluent communities may ultimately be a function of political influence being disproportionately focused in these communities. Regardless, because governmental enforcement provides a powerful incentive for firms to abide by regulations, it merits special attention as a solution to environmental injustice.
Some researchers have found that regulators detect violations at a slower rate and impose lighter penalties on violators in vulnerable communities. Lavelle and Coyle found that the U.S. Environmental Protection Agency (EPA) discriminated against minority communities with respect to cleanup decisions and enforcement of existing environmental laws. The study discovered that financial penalties were around five hundred percent higher for violations affecting predominately white neighborhoods as opposed to predominately minority neighborhoods. They also found it took twenty percent longer for hazardous waste sites in minority communities to be listed on the federal priority system for cleanup.
Other studies provide further support. Mennis similarly found that fewer administrative orders and lower monetary penalties were issued to facilities in high-percent minority areas compared to low-percent minority areas. Hellend establish that penalties for environmental noncompliance vary based on the economic situation of the community surrounding the violator: when the community was deemed “affluent,” a violating plant was more likely to face a shutdown.
The relative lack of environmental enforcement efforts in vulnerable communities likely incentivizes firms to site facilities and be more lax with compliance efforts in low-income communities and communities of color. If the penalties assessed for violating environmental regulations in low-income, minority communities are insubstantial and less than complying with existing laws, they will not deter future violations—they will simply be considered a cost of doing business.
Another way that unequal enforcement occurs is through systematic non-detection of violations. There is evidence that regulators miss violations altogether in these communities by wrongly believing firms are compliant with the law. This phenomenon is known as “compliance bias.”
Empirical evidence shows that industrial facilities cited in low-income neighborhoods are less likely to be monitored and inspected than facilities in more affluence neighborhoods. Dion et al. found that the likelihood of inspection increases with the percentage of employment in the surrounding population, because plants in high employment areas are more “visible.” If low employment is an indicator of poverty or lack of political power, then this study adds support to the EJM’s claim of unequal enforcement in marginalized communities.
When controlling for income, however, the research on compliance bias in racial minority communities is mixed. In 2009, Konisky found that disparities in detection exist for low-income and Hispanic communities, but not in predominantly black communities in particular. Koninsky and Reenock’s 2013 study found that compliance bias is more likely in Hispanic, (but, not in African American, communities.
Some research, however, does support the claim that the percentage of minority residents is a factor in violation detection. Scholz and Wang found inspections to be negatively associated with the percentage of black and Hispanic residents. Konisky and Shario’s 2010 study provides modest evidence for race-based disparities in both inspections and punitive actions taken in response to noncompliant behavior. If enforcement targeting decisions are influenced by a community’s income level, political power, or racial makeup, then facilities will be perversely incentivized to site facilities in the communities in which they can most effectively skirt regulations.
These findings show that there is significant support to EJM’s claim that enforcement is less vigilant in minority and low-income communities. They demonstrate a strong, negative relationship between socioeconomic status and expenditure of enforcement resources. More research is required to clarify the extent of the relationship between race and enforcement decisions. Future research should seek to test this phenomenon by evaluating agencies at different bureaucratic levels and their implementation of a variety of regulatory initiatives.
Political power unquestionably plays a role in a community’s ability to effectively oppose the siting of toxic facilities in their communities. As previously noted, the Cerrell Report advised firms that “middle and upper socioeconomic strata possess better resources to effectuate their opposition.” Indeed, some researchers take it as a given that “which groups hold the political power” is a factor “inherent in land use decisions.” If this is true, low political capital could explain both discriminator siting decisions and poor regulatory enforcement.
Research offers some insight into what characteristics make some communities more politically powerful than others. Unsurprisingly, median income is a measure of community influence. Additionally, the percentage of residents who possess a high school diploma and the percentage of residents who are employed are both positively correlated with political power. High voter turnout is also an indicator in some circumstances. Less political power is needed for EJM activists in states that are already aligned with pro-environmental politics, because the political establishment is more familiar with environmental justice arguments and more willing to tackle problems when they arise. These indicators of political power offer regulators a more nuanced way to test for community vulnerability than simply looking at income and minority status. Indeed, some research shows the compliance bias described above can be mitigated by increased political mobilization in affected communities.
Siting facilities on the edges of multiple jurisdictions also creates an additional impediment for residents that oppose a facility. In these situations, multiple communities and local governments must come together to successfully oppose the plant. Gray and Shadbegian found that plants sited in one state but primarily polluting other states emit more pollution than plants that pollute communities in their home state. By siting facilities in such a way as to harm only a minority of each affected jurisdiction, firms minimize the potential for any one community to gain political traction within their local system.
This research suggests that low political capital in affected communities creates an incentive for firms to continue the discriminatory siting practices exemplified by the Cerrell Report. Policy and advocacy efforts should focus on how to ensure that communities lacking political influence are not burdened with a disproportionate amount of society’s environmental pollution.
There is empirical evidence that environmental injustice is caused by many factors, including discriminatory siting, misguided regulatory policy, unequal regulation enforcement, and unequal political power. These factors do not function independently. Low-income and minority communities are often more likely to have less political power, and communities with less political power less likely to have their voices heard by regulators. However, research that establishes each factor’s role in creating incidents of environmental injustice lends credence and actionability to the environmental justice movement. With empirical proof of its causes, policymakers have multiple avenues through which they can combat environmental injustice.
 Lolita D. Gray & Glenn S. Johnson, A Study of Asthma as a Socio-Economic Health Disparity Among Minority Communities, 22 Race, Gender, & Class 337, 337 (2015).
 Diane K. McLaughlin & C. Shannon Stokes, Income Inequality and Mortality in US Counties: Does Minority Racial Concentration Matter?, 92 Am. J. Pub. Health 99, 99 (2002) (“Higher income inequality at the county level was significantly associated with higher total mortality. Higher minority racial concentration also was significantly related to higher mortality and interacted with income inequality.”).
 See, e.g., U.S. Dep’t of Health & Hum. Serv.: Ctr. for Disease Control & Prevention, CDC Health Disparities and Inequalities Report—United States, 2013, 62 Morbidity & Mortality Weekly Rep. 1, 1 (2013).
 Dorceta E. Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility 1 (2014).
 David N. Pellow, Environmental Inequality Formation: Toward a Theory of Environmental Injustice, 43 Am. Behav. Sci. 581, 582 (2002).
 See, e.g., Conner Bailey et al., Environmental Justice and the Professional, in Environmental Justice: Issues, Policies, and Solutions 35 (Bunyan Bryant ed. 1995) (“There is no doubt that risks associated with environmental hazards disproportionately affect minority populations that are least able to defend themselves due to poverty and political powerlessness.”).
 John Eligon, A Question of Environmental Racism in Flint, N.Y. Times, Jan. 21, 2016, at A1 (available at http://www.nytimes.com/2016/01/22/us/a-question-of-environmental-racism-in-flint.html?_r=0).
 Antoaneta Roussi, It’s Not Just a Flint Problem: Other U.S. Cities are Suffering from Toxic Water, Salon, Jan. 25, 2016 (available at http://www.salon.com/2016/01/25/its_not_just_a_flint_problem_other_u_s_cities_are_suffering_from_toxic_water/).
 Robert D. Bullard, Confronting Environmental Racism 18 (1993).
 Gordon Walker, Beyond Distribution and Proximity, 41 Antipode 614, 616 (2009).
 Bullard, supra note 10, at 18.
 Cerrell Associates, Inc., Political Difficulties Facing Waste-to-Energy Conversion Plant Siting 43 (1984) (available at http://www.ejnet.org/ej/cerrell.pdf).
 An Environmental Justice Network presentation in Washington, D.C. on November 12, 2015 made much of this report.
 Contrast this idea with the characterization of the causes of environmental injustice as either racism or market dynamics. See Yushim Kim et al., Residential Choice Constraints and Environmental Justice, Soc. Sci. Q. 40, 41 (2013) (citing Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990)).
 Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. Law 1, 21 (1995).
 Bailey, supra note 7, at 37.
 Bullard, supra note 10, at 17 (“Agencies at all levels of government, including the federal EPA, have done a poor job protecting people of color from the ravages of pollution and industrial encroachment.”).
 Beverly Wright, Environmental Equity Justice Centers: A Response to Inequity, in Environmental Justice: Issues, Policies, and Solutions 63 (Bullard 1995) (“[G]overnment agencies responsible for regulating industry are seen as inappropriately biased in favor or particular industry risk management policies or approaches.”).
 Robert D. Bullard & Glenn S. Johnson, Environmental Justice: Grassroots Activism and Its Impact on Public Policy Decision Making, 56 J. Soc. Issues 555, 565 (2000).
 Wayne B Gray & Ronald J. Shadbegian, ‘Optimal’ pollution abatement—whose benefits matter, and how much?, 47 J. Envtl. Econ. & Mgmt. 510, 514 (2004) (“[T]he main motivation for controlling pollution emissions in the US is government regulation of pollution, especially for the air and water pollutants…”).
 Marianne Lavelle & Marcia Coyle, Unequal Protection: the Racial Divide in Environmental Law, 21 Nat. L. J. supplement (1992).
 Jeremy L. Mennis, The Distribution and Enforcement of Air Polluting Facilities in New Jersey, 57 Prof. Geographer 411–22 (2005).
 Eric Hellend, The Enforcement of Pollution Control Laws: Inspections, Violations, and Self-Reporting, 80 Rev. Econ. & Stat. 141, 152 (1998).
 David M. Koninsky & Christopher Reenock, Compliance Bias and Environmental (In)Justice, 75 J. Pol. 506, 507 (2013).
 Catherine Dion et al., Monitoring of Pollution Regulation: Do Local Conditions Matter?, 13 J. Reg. Econ. 5, 15. (1998).
 David M. Koninsky, Inequities in Enforcement? Environmental Justice and Government Performance, 28 J. Pol’y Anal. & Mgmt. 102-21. (2009)
 Koninsky & Reenock, supra note 29, at 507.
 John T. Scholz & Cheng-Lung Wang, Cooptation or Transformation? Local Policy Networks and Federal Regulatory Enforcement, 50 Am J. Pol. Sci. 81, 93 (2006).
 David M. Konisky & Tyler S. Schario, Examining Environmental Justice in Facility-Level Regulatory Enforcement, 91 Soc. Sci. Q. 835-55 (2010).
 Cerrell Associates, supra note 13.
 Patricia E. Salkin. Intersection between Environmenal Justica and Land Use Planning at 3. American Planning Association Planning & Environmental Law. May 2006 Volume 58 No. 5. First page is 3.
 H. Sigman, The pace of progress at Superfund sites: policy goals and interest group influence, J. Law Econ. 44 (2001) 315–344.
 Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 Ecology L. Q. 1, 23 (1997).
 W. Kip Viscusi & James T. Hamilton, Are Risk Regulators Rtional? Evidence from Hazardous Waste Cleanup Decisions, 89 Amer. Econ. Rev. 1010, 1010-1027 (1999); James T. Hamilton, Testing for Environmental Racism: Prejudice, Profits, and Political Power?, 14 J. Pol’y Anal. & Mgmt. 107, 107-132 (1995).
 Viscusi & Hamilton, supra note 41; Gray & Shadbegian, supra note 23, at 531-32.
 Koninsky & Reenock, supra note 29.
 Gray & Shadbegian, supra note 23, at 531-32.