Centering Impact over Intent as a Matter of Life and Death: Necessary Legal Amendment Offered by The Environmental Justice for All Act

Environmental injustice, the unequal distribution of environmental benefits and harms, is a pervasive issue locally, nationally, and internationally. On a global scale, access to and control of fertile land and recreational spaces at large disproportionately belong to wealthy white people, while, in contrast, exposure to pollution and the negative effects of climate change both disproportionately manifest in poor Black and Brown communities [1-3]. This unequal distribution of environmental costs and benefits is not only due to power structures of systemic oppression, such as colonialism, imperialism, and structural racism, but it also further entrenches the socioeconomic marginalization that these power structures of systemic oppression create [4]. One of the starkest examples of environmental injustice globally is the disparate health impacts of industrial siting in Black communities in the United States of America. Black Americans are at a disproportionately high risk of developing non-communicable diseases, such as asthma, cancer, and heart disease, in part, due to much higher exposure rates to point-source toxic pollution [5]. Point-source pollution refers to concentrated pollution that is created by contained infrastructure, such as a factory, a refinery, a sewage plant, or an industrial agricultural enterprise [6]. Due to centuries of socioeconomic marginalization through laws, regulations, and outward discrimination, Black communities are much more likely to experience toxic environmental exposures due to point-source pollution, and therefore more likely to face the negative health effects of these exposures. One of the largest barriers to addressing this inequity, however, is the fact that there is little-to-no legal recourse that can be taken by communities facing the threat of disproportionate exposure. This lack of legal recourse exists due to a requirement set by current anti-discrimination laws in the United States that claimants must prove that the perpetrator of discrimination intended to discriminate. American legal focus on intent over impact in relation to disparate siting of point-source pollution places such a heavy burden of proof on those facing discrimination that perpetrators experience near total impunity. This impunity leads to deeply disparate health impacts and is the cause of discriminatory death on a national scale. Luckily, activists have recognized the necessity to focus on impact over intent for decades, and their campaigns have resulted in the drafting of The Environmental Justice For All Act (EJ4All Act), a bill currently being introduced into the United States Senate. In order to address the deadly health impacts of disparate exposures to point-source pollution, legal recourse for affected communities must be offered by outlawing discriminatory impacts over discriminatory intents, as outlined in The EJ4All Act.

Disproportionate siting of point-source pollution is a major cause of increased morbidity and mortality for Black communities in the United States. In 1983, the U.S. General Accounting Office published Siting Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities and in 1987 the United Church of Christ Commission on Racial Justice published Toxic Waste and Race in the United States, which both unequivocally empirically presented that Black people were much more likely to face direct exposure to toxic pollution from point source facilities than their white counterparts; in fact, race was the largest predictive factor in landfill and toxic waste siting [7,8]. By the 1990s, sociologist Dr. Robert Bullard began empirically highlighting the fact that Black communities had been raising their voices against discriminatory siting for decades due to proven unequal exposures [9]. Further, it has been found that pollution is a major source of disease and death; for example, “in 2015, all forms of pollution combined were responsible for 21% of all deaths from cardiovascular disease, 26% of deaths due to ischaemic heart disease, 23% of deaths due to stroke, 51% of deaths due to chronic obstructive pulmonary disease and 43% of deaths due to lung cancer,” which indicates through being a major cause of non-communicable diseases, pollution is a major cause of mortality [10]. The increased risk of morbidity and mortality as a result of toxic exposures has also been proven through measurably reduced mortality in communities that reduce air pollution, at times even marginally [11]. Therefore, it is of no surprise that Black Americans face severe and measurable health impacts due to the increased likelihood of toxic exposures by point-source pollution siting. For example, Black communities have an increased risk of premature death due to particle pollution, are 30% more likely than their white counterparts to develop asthma, and three times more likely than their white counterparts to die from asthma-related causes, which can be explained by increased toxic exposures [12,13]. Further, Black children suffer lead poisoning, a condition associated with deadly health effects, at twice the rate of their white counterparts in any income bracket, which has been directly linked with lead paint and increased point-source pollution in segregated neighborhoods [14].

Many specific legal, institutional, and social causes of oppression have led to the modern disparate exposures that Black Americans face. In a nation that upheld racial slavery for over two hundred years and then upheld legal segregation for another one hundred years, it would be imprudent to ignore the fact that it is possible that some disparate siting choices have been made in United States history directly due to intentional racist discrimination. Specifically, white Americans, which have historically held the majority of political decision-making power, have been socialized to hold racist beliefs about Black communities that may have manifested in some cases in intentional discrimination [15]. However, what is more likely to have caused the pattern of disparate exposures at large is a less linear cause and effect; the de-jure and de-facto segregation that has stratified Black and white Americans, as well as economic oppression, have led to the concentration of Black communities in lower-income, and therefore often less-regulated, real-estate zones [16]. Put another way, “persistent discrimination in educational opportunities and employment,” as well as historical “mechanisms” of racial segregation such as Jim Crow Laws, Redlining, discriminatory lending and mortgages, and “white flight,” have led to highly segregated and highly disadvantaged communities that are often relatively “politically powerless,” so are sought out by siting committees as the “path of least resistance.”[17,18]

Understanding the gravity of racially disparate health impacts of point-source pollution facility siting, and that these disparate impacts could continue in the absence of intentional discrimination, it becomes clear that discriminatory siting should be illegal regardless of intention. In order for this illegality to exist, however, a tenet of United States anti-discrimination law, that discriminatory intent must be proven, must be replaced with the burden of proving discriminatory impacts; experienced or expected. In other legal terms, a strict liability approach should be adopted in which an action (in this case waste and industrial facility siting) is illegal based on the potential negative outcomes of the action, not whether those negative impacts are knowingly introduced by the perpetrator [19]. The very beginning of the environmental justice movement indicated that the burden of proving discriminatory intent would be a formidable barrier to justice. In 1979, a Texas waste corporation planned to place a garbage dump in a predominantly Black neighborhood, so the residents of the East Houston town brought the matter to court, claiming that their civil rights were violated by what they believed was racially motivated, if not just disparately racially impactful, siting (Bean v. Southwestern Waste Management Corp.)[20]. Despite the fact that the court found that the dump would “affect the entire nature of the community, its land values, its tax base, its aesthetics, the health and safety of its inhabitants,” it also found that the residents could not provide detailed enough information on the discussions surrounding the siting decisions, and thus, could not establish intentional discrimination [21]. The garbage dump was built, and while several court cases since then have temporarily granted environmental justice claims without proof of intentional discrimination, higher courts have consistently ruled that intentionality must be proven [22]. Due to this fact, communities facing disproportionate environmental exposure can only seek injunctive relief through antidiscrimination law if they can find the equivalent of transcripts of the siting decision-makers stating that they plan to racially discriminate. The only other option is for claimants to file criminal or civil (such as a negligence-based tort claim) suits for injury if they have personally been exposed to the pollution in question so long that they have become sick, and can prove the illness as being a direct result of this pollution. Alternatively, claimants could file cases claiming that the polluting facility is not in compliance with other environmental regulations, such as those outlined under statutes like the Clean Air Act or Clean Water Act. However, both of these potential remedies do not address the root problem of disparate impacts; neither of these approaches allows claimants to seek relief for discriminatory pollution. Additionally, both of these approaches place an undue burden on communities facing pollution to prove complex and contestable cases; polluting facilities have a myriad of defenses to claims of illness caused by pollution or being out of numerical compliance with statutes through contesting the means of pollutant measurement.

In contrast, if claimants could sue perpetrators based on discriminatory impact, all that would be needed to prove their case is demographic data about their communities and the fact that the proposed or existing industrial facility will emit pollutants. The positive outcomes of impact-focused anti discrimination legislation have long been recognized by environmental justice advocates; Robert Bullard along with other grassroots activists and scholars have deemed that one of the five main tenets of the “environmental justice framework,” is that it “would allow disparate impact and statistical weight, as opposed to “intent,” to infer discrimination.”[23] If implemented carefully, outlawing siting with discriminatory impact could prevent governmental zoning and licensing agencies from permitting corporations to build polluting facilities in predominantly Black areas, and this could allow an avenue of legal recourse to communities already facing disproportionate exposures to sue corporations and government agencies which are already causing harm. By shifting the dialogue from intentionality to impacts, those institutions with the most systemic power; public agencies and private corporations, then bear the brunt of acknowledging the fact that systemic oppression has deeply segregated and stratified the United States; acknowledging these historical truths are the first step to meaningful change.

Now understanding the benefits of an impacts-over-intent approach to legally addressing discriminatory sisting, the necessity for legislation to make this approach a reality becomes clear, and luckily this legislation already exists; the EJ4All Act appears to serve as legislation that could formalize protections against the impacts of disproportionate exposure instead of discriminatory perpetrator intent. The EJ4All Act was reintroduced to the United States Senate in 2021, written through a process of extensive stakeholder consultation of direct engagement with frontline communities, environmental justice activists, and grassroots organizations [24,25]. The main tenets of The Act are to prohibit discrimination based on disparate impacts of activities, to require the federal agencies to consider cumulative impacts of permitting which causes synergistic exposures, to facilitate more community involvement in environmental decision-making, and to invest in scientific inquiry and community development which support environmental justice [26]. The tenet of shifting toward a discriminatory impacts approach will function through amending title IV of the Civil Rights Act to include the prohibition of “Discrimination… based on disparate impact,” stating that this type of discrimination is “established… if… a program, policy, practice, or activity…causes a disparate impact on the basis of race color, or national origin.”[27] It is expected that this amendment will function to prevent and remedy further discriminatory siting by requiring the United States government to prohibit the permitting of point-source polluting facilities in predominately marginalized communities, and by allowing communities to sue current perpetrators of disparate polluting effects, allowing injunctive relief.

It is worth noting, however, in order to yield these positive impacts, it will be necessary that The Act defines “impact” as being exposed to pollution itself as opposed to proving disparate health impacts as a result of this exposure. The United States government and corporations have a long history of medical contestation in communities facing disparate exposures; often placing an almost insurmountable burden of proof on affected communities to scientifically prove the direct causation of health impacts [28]. Therefore, defining “impact” as physical health impacts, as opposed to exposure to pollution, could lessen the efficacy of The Act to bring about justice. While this does not seem to be made explicitly clear in The Act as written, its focus on cumulative and synergistic exposures is a positive sign that regulators would adopt a precautionary approach that exposure to pollution is an action with negative impacts. Therefore, it would be preferable that The Act is amended to explicitly define impacts as exposure to the specific pollutants that organizations such as the Clean Air Task Force have proven to cause negative health impacts. However, if The Act is not amended in this way, it will be necessary that federal regulators take initiative to define impact as exposure to specific pollutants in their rule-making.

The United States faces an environmental justice crisis in the increased morbidity and mortality experienced by Black Americans due to the disproportionate siting of point-source polluting facilities. A large cause of this issue is the fact that siting commissions may only face legal consequences for polluting predominantly Black neighborhoods if it can be proven that their intention was to be racially discriminatory. Environmental justice advocates have long called on the United States government to outlaw siting with discriminatory polluting impacts, which would discourage future discriminatory siting, and allow legal recourse for communities currently experiencing disproportionate pollution. The EJ4All Act, currently introduced as a bill to the United States Senate, aims to among other important tasks, amend the Civil Rights Act to protect marginalized Americans from acts with disparate impacts, lifting the requirement that claimants must prove discriminatory intent on the part of perpetrators, which long provided impunity for discriminatory polluters. The EJ4All Act represents an opportunity for America to usher in a new age of corporate and government responsibility which does not further entrench the socioeconomic barriers that have historically burdened Black communities. However, The EJ4All Act is by no means sure to pass into law; a robust movement of constituents in favor of The Act will need to convince their representatives to fight for this legislation. Groups such as EarthJustice and the Southern Environmental Law Center host platforms for constituents to reach out directly to their representatives to ask them to support The Act, and many grassroots organizations have and will continue to hold demonstrations and meetings to press for The Act [29]. Passing the Environmental Justice For All Act will require all those in favor of environmental justice to make their voices heard; this is no easy feat, but undoubtedly necessary in the pursuit of justice and healthy communities.

Bibliography

1. Landrigan, Philip J, Richard Fuller, Nereus J R Acosta, Olusoji Adeyi, Robert Arnold, Niladri Basu, Abdoulaye Bibi Baldé, et al. 2018. “The Lancet Commission on Pollution and Health.” The Lancet (British Edition) 391 (10119): 462–512. https://doi.org/10.1016/S0140-6736(17)32345-0.

2. Patnaik, Aneesh, et al. “Racial Disparities and Climate Change.” Princeton Student Climate Initiative, August 15, 2020. https://psci.princeton.edu/tips/2020/8/15/racial-disparities-and-climate-change.

3. Wolch, Jennifer R., Jason Byrne, and Joshua P. Newell. 2014. “Urban Green Space, Public Health, and Environmental Justice: The Challenge of Making Cities ‘just Green Enough’.” Landscape and Urban Planning 125: 234–44. https://doi.org/10.1016/j.landurbplan.2014.01.017.

4. Mathiarasan, Sahana, and Anke Huls. 2021. “Impact of Environmental Injustice on Children's Health-Interaction Between Air Pollution and Socioeconomic Status.” International Journal of Environmental Research and Public Health 18 (2): 795. https://doi.org/10.3390/ijerph18020795.

5. Jbaily, Abdulrahman, Xiaodan Zhou, Jie Liu, Ting-Hwan Lee, Leila Kamareddine, Stéphane Verguet, and Francesca Dominici. 2022. “Air Pollution Exposure Disparities Across US Population and Income Groups.” Nature (London) 601 (7892): 228–33. https://doi.org/10.1038/s41586-021-04190-y. See also: Preventing noncommunicable diseases (NCDs) by reducing environmental risk factors. Geneva: World Health Organization; 2017 (WHO/FWC/EPE/17.1). Licence: CC BY-NC-SA 3.0 IGO.: https://apps.who.int/iris/bitstream/handle/10665/258796/WHO-FWC-EPE-17.01-eng.pdf;jsessionid=3EC9CC9C474DE3C346B8BB5719E72F5C?sequence=1

6. National Geographic. “Point Source and Nonpoint Sources of Pollution.” Accessed April 28, 2023. https://education.nationalgeographic.org/resource/point-source-and-nonpoint-sources-pollution.

7. United States. General Accounting Office. 1983. Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities : Report. Washington, D.C.: The Office.

8. United Church of Christ. Commission for Racial Justice. 1987. Toxic Wastes and Race in the United States : a National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites. New York, N.Y.: Public Data Access : Inquiries to the Commission.

9. Bullard, Robert D. 1990. Dumping in Dixie : Race, Class, and Environmental Quality. Boulder, Colo: Westview Press.

10. Landrigan, 2018. Pp. 471.

11. Connolly, Rachel, Gregory Pierce, Julien Gattaciecca, and Yifang Zhu. 2020. “Estimating Mortality Impacts from Vehicle Emission Reduction Efforts: The Tune In and Tune Up Program in the San Joaquin Valley.” Transportation Research. Part D, Transport and Environment 78: 102190. https://doi.org/10.1016/j.trd.2019.11.019.

12. American Lung Association. “Disparities in the Impact of Air Pollution.” Accessed April 28, 2023. https://www.lung.org/clean-air/outdoors/who-is-at-risk/disparities

13. Office of Health and Human Services. “Asthma and African Americans - The Office of Minority Health.” Accessed April 28, 2023. https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=15.

14. Dr. Robert Bullard, director, Environmental Justice Resource Center, “Testimony of Robert D. Bullard, Ph.D.,” written statement delivered to the U.S. Commission on Civil Rights, Washington, DC, Jan. 11, 2002, pp. 3–4

15. “Socialization and Racism: The White Experience” within Impacts of Racism on White Americans (1981,) is one of hundreds of sociological accounts of the socialization of white supremacy in the United States. Additionally, the Civil Rights Act was itself passed as a direct response to the pervasive instance of anti-Black discrimination by white Americans.

16. United States Commission on Civil Rights. “Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice,” 2003. https://www.usccr.gov/files/pubs/envjust/ej0104.pdf. Chapter 2: What is Environmental Justice?

17. Brulle, RJ, and DN Pellow. 2006. “Environmental Justice: Human Health and Environmental Inequalities.” Annual Review of Public Health 27 (1): 103–24. https://doi.org/10.1146/annurev.publhealth.27.021405.102124. Pp. 109.

18. Saha, Robin, and Paul Mohai. 2005. “Historical Context and Hazardous Waste Facility Siting: Understanding Temporal Patterns in Michigan.” Social Problems (Berkeley, Calif.) 52 (4): 618–48. https://doi.org/10.1525/sp.2005.52.4.618.

19. LII / Legal Information Institute. “Strict Liability: Cornell Law School.” Accessed May 3, 2023. https://www.law.cornell.edu/wex/strict_liability.

20. United States Commission on Civil Rights, 2003. Pp. 13.

21. Ibid.

22. Ibid.

23. Bullard, Robert D. “Environmental Justice in the 21st Century: Race Still Matters.” Phylon (1960-) 49, no. 3/4 (2001): 151–71. https://doi.org/10.2307/3132626. Pp. 154.

24. Grijalva, Raúl M. “A. Donald McEachin Environmental Justice for All ACT- Factsheet.” The Office of Ranking Member, Sen. Raúl M. Grijalva (D-Ariz), March 2023. https://democrats-naturalresources.house.gov/imo/media/doc/2023.03%20Fact%20Sheet_EJ%20for%20All%20Act.pdf.

25. Adams, Alison E., Anne Saville, and Thomas E. Shriver. 2023. “Race, Toxic Exposures, and Environmental Health: The Contestation of Lupus Among Farmworkers.” Journal of Health and Social Behavior 64 (1): 136–51. https://doi.org/10.1177/00221465221132787.

26. Ibid.

27. Duckworth, Tammy (D-IL). S.872 - Environmental Justice For All Act, § Sec. 4: Prohibited Descrimination (March 18, 2021). https://www.congress.gov/bill/117th-congress/senate-bill/872/text#toc-H1FD0D37EAD70432FA69EDEBAB79E2A67.

28. Brown, Phil. 2007. “Citizen-Science Alliances and Health Social Movements: Contested Illnesses and Challenges to the Dominant Epidemiological Paradigm.” In Toxic Exposures, 1.Columbia University Press. https://doi.org/10.7312/brow12948.7.

29. Earthjustice. “It’s Time to Pass the Environmental Justice for All Act.” Accessed May 3, 2023. https://earthjustice.org/action/pass-the-environmental-justice-for-all-act. See also: Southern Environmental Law Center. “Environmental Justice for All Act Gets New Life,” May 2, 2023. https://www.southernenvironment.org/news/environmental-justice-for-all-act-aiming-to-fix-decades-of-injustice-gets-new-life/.