Overview of the Environmental Justice Movement from Legal Perspective in Our Modern Democratic Society Wen-Hsiang Kung S.J.D. Candidate, Graduate Student Associate Indiana University School of Law – Bloomington

Framework Introduction The Environmental Justice Movement-- Current Situation and Challenges Legal Tools in Addressing the Problems and Their Limitations Where the Movement Should Go--Proposal for the Solution Conclusion

Definition of Environmental Justice (EPA): Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Current situation: Economic and Political Incapacitation Trade-Offs -- Economic Security & Environmental Degradation

Legal Tools in Addressing the Problems and Their Limitations The Equal Protection Clause of Constitutional Law Title VI of the Civil Rights Act of 1964 Section 1983 of the Civil Rights Act of 1871 The Environmental Statutes Common Law Tort Claims Government’s Order (Executive Order No. 12,898) & Guidance (EPA’s interim guidance )

The Equal Protection Clause of Constitutional Law The Burden of Proof for Plaintiff: disparate impact (by a particular decision the agency made), a legal right (be harmed), discriminatory intent (most difficult to prove) Washington (1976); Arlington Heights (1977)

The Environmental Laws Citizen Suit Provisions (Citizen Enforcement) Limitations: specific period notice; exhausted administrative remedies; standing & ripeness Standing ( Article Ⅲ, §2 of the Constitution )--to prove: injury in fact; causation; redressability NEPA -- To assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings However– No right of action -- back to APA (§ 706): great discretion for agencies (Standards of judicial review: arbitrary & capricious)

Common law--Tort Claims Nuisance Claims (for example): Burdens of Proof—overloaded to plaintiffs right be harmed; intentional & unreasonable invasion Other Problems with Tort Law: retrospective; harms -- already occurred; high standard of proof of causation of the individual plaintiff’s harm

What We Should Do-- Correction of Decision-Making Procedure--to re- build the basic values of due process: (Alfred Aman) Transparency, Accountability, and Participation Addressing the Social Justice-- shifting the burden of proof to industries, adopting stricter standard of judicial review on economic inequality -- promoting the civil rights Adopting Precautionary Principle-- because of the scientific uncertainty and the approach “err on the side of safety”

Where the Movement Should Go --Proposal for the solution Making the Process of Decision-Making More Accountable Making the Process of Decision-Making More Transparent Re-define the Standard of Judicial Review to “Economic Discrimination” Employing the Precautionary Principle and Shifting the Burden of Proof

Making the Process of Decision-Making More Accountable--RA The Risk Assessment (RA)--a technical procedure (not the sole criterion)--to restore public confidence in the agency Critique--environmental justice is not about probabilities, statistical lives, acceptable level exposure, and substituting science for democratic decision making… The guidelines --considering impacted subpopulations, “hot spot” of multiple exposure, and highly exposed persons… (John S. Applegate)

Making the Process of Decision-Making More Transparent -- emphasizing the public participation The Theories of Public Participation: (Aman) “Red Light” theory -- fair representation “Green Light” theory -- fair implementation Procedural Justice-- full representation; effective participation--right to know; obligation to explain (El Pueblo Para el Aire y Agua Limpio v. County of Kings, Cal. Super. Ct. Dec. 30, 1991) Participatory Justice-- “self-determination”, “respect for diverse cultural perspectives” (the First National People of Color Environmental Leadership Summit, 1991 )

Employing the Precautionary Principle Limitations of Tort law-- retrospective; a harm already occurred; high standard of proof of causation Environmental regulation-- a response to key failings of the tort system-- forward looking; prevention of harm before it occurs; anticipatory (the degree of certainty of causation must be relaxed to permit prediction in advance of actual harm) Ethyl Corp. (1976) (When one is endangered, harm is threatened ; no actual injury need ever occur. … A statute allowing for regulation in the face of danger is, necessarily, a precautionary statute. )

Environmental Justice & Precautionary Principle Environmental Justice- Environmental Justice-- not just about fairly distributing pollution risks (all people are harmed equally), but -- preventing environmental risks from being produced in the first place (no one is harmed at all) Precautionary Principle: scientific uncertainty- -“err on the side of safety” Reserve Mining (1975) (also, emphasized in international environmental law --Rio Principle 15)

Conclusion From Legal Perspective: The government-- Accountable and Transparent (in decision-making); Adopting the precautionary principle and Shifting the burden of proof (environmental law and policy); Re-define the standard of judicial review to “economic discrimination” (judicial review) The industry (the risk-creator)--Burdens to provide the needed information The public--Enhancing the meaningful and effective participation (right to know)