現代民主社會下的環境正義

Topic: To Restore Environmental Justice in our modern democratic society

Justice is a contested concept. Some people claim, as does libertarian Robert Nozick, for example, that justice requires absolute respect for property right, even if this results in great inequality between rich and poor.[1] Others, such as the liberal contractarian John Rawls, believe, to the contrary, that justice requires maximum equality compatible with individual incentives needed to promote economic growth.[2]
According to Ronald Dworkin, the concept of Justice, which rests on the uncontroversial claim, championed by and explained well by Will Kymlicka, is to restate the principle of equal consideration of interests, which all human beings are of worthy moral consideration.[3] Unequal treatment of human beings must therefore be justified, and such justification requires recourse to moral consideration or other values.
Further, when the social justice got involved the environmental affairs, there is so-called Environmental Justice emerged. The concept of Environmental Justice includes fair treatments of all races, cultures, incomes and education levels with respect to the development, implementation and enforcement of environmental laws, regulations and policies.[4] Robert Bullard had identified five basic elements of the environmental justice framework in 90s: (1) a right of all individuals to be protected from pollution; (2) a preference for prevention strategies; (3) a shift to polluters and dischargers of the burdens of proof; (4) a definition of discrimination that includes disparate impacts and statistical evidence; and (5) an emphasis on targeted action to redress unequal risk burdens.[5]
However, studies show that poor and minority people are more likely than their white counterparts to live near freeways, sewer treatment plants, municipal and hazardous waste landfills, incinerators, and other noxious facilities. The environmental justice movement claims that such disproportion is due to racism and classism in the sitting of locally undesirable land uses (LULUs) (even including taking property from the poor or minority people to private business or developer[6]), in the enforcement of environmental laws and regulations, and in the remediation of hazardous sites.[7]
The disproportionate location of exposure to toxic pollution in poor minority communities is the result of various development patterns.[8] From the aspect of industry, a company wishing to locate a hazardous waste facility may unconsciously follow a path of least resistance. This approach would target land of relatively low value and minimal zoning restrictions without considering the composition of the local community. On the other side, the poor or the minority people tend to live in areas of lower land values and mixed industrial/residential uses and, as a result, are disproportionately affected by decisions relating to siting hazardous facilities.[9] Hence, there is a trade-offs existing between economic security and environmental degradation. The poor and minority people would like to get job rather than a better environment.[10]
In the very beginning, the environmental movement and advocates for civil rights and social justice were separated. Along with its development, in presenting these challenges, communities have relied upon a number of legal tools, including claims under the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, Section 1983 of the Civil Rights Act of 1871, environmental statutes, and common law tort claims. In addition, the government has issued the Executive Order No. 12,898 and EPA’s interim guidance intended to bring agencies into promoting environmental justice. However, all of these legal tools have their own limitations and have also been relatively unsuccessful, partly for technical legal reasons, and partly because the underlying problem is the political and economic incapacitation of the poor and minority people.
In any event, the starting point is that the government has an obligation to protect the environment, and safety/health of the public. In our modern democratic society, to achieve its goal, the government action, especially administrative agency decision, at least has to meet the requirements of the due process.
All procedural protections are to check the government action. The fundamental values of procedure include: transparency, accountability, and participation.[11] According to Paul Craig, the pluralist conception of “democracy” places stress upon process considerations.[12] It also fosters interest representation with the object of ensuring that those affected groups by agency decision will be able to participate the decision-making process.[13]
However, for those poor and minority communities, on the situation of lacking economic and political strength, how do they substantively participate the process of democracy? How do we increase the strength of economics and politics for the poor or minority people to address the trade-off? What should we do to improve environmental injustice in today’s complex society? According to the development of this movement, although there are many legal tools people can use to assert their own right, most of them do not work well to protect the poor and persons of color. Is there any positive way to overcome the obstacle and achieve the protection?
Hence, we should start from the correction of decision-making procedure to re-build the basic values of due process then to put much weight on the concern addressing the social justice, such as shifting the burden of proof to industries and adopting stricter standard of judicial review on economic inequality for promoting the civil rights. Finally, because of the scientific uncertainty and the approach “err on the side of safety”, we should establish the fundamental and positive environmental policy of adopting Precautionary principle for the modern environmental protection.
Today, the common interests of environmentalists and social justice advocates, through the coalition, are advanced by the environmental justice movement.[14] Therefore, when we face the paradoxes of Race, Law, and Inequality in the society of the United States, environmental injustice can be a good example to show what role scholars can play. Along with the development of environmental justice movement, this paper is trying to propose the positive solutions that not only right the wrongs of the pasts, but also achieve the environmental justice.