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Toward an Environmental Justice Act

March 02, 2011 By: NCVeditor Category: Devon G. Pena, Ecology, Economy, Politics

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Can Ecological Democracy Trump Partisan Politics and Neoliberalism?

by Devon G. Peña

Over the past two and a half decades, environmental justice activists have tried to address the limits and contradictions of liberal democratic approaches to the protection of our most vulnerable communities. We have danced with the state but have also come to recognize how the existing framework for proactive transformational action is limited by the regulatory apparatus established by former President Bill Clinton through Executive Order 12898.

While E.O. 12898 proved useful to imaginative movement organizations and communities seeking to address the legacies and continued challenges of environmental racism, the status of the framework as an Executive Order also limited prospects for genuinely transformational change. It now seems clear that this is not the best framework to sustain our movement’s political influence, scientific efficacy, and mobilizing capacity. This essay charts the limits and contradictions of Executive Order 12898, summarizes prior efforts at legislating environmental justice, and closes with an analysis of the prospects and possible orientations of a new federal law for environmental justice.

Limits and Contradictions of E.O. 12898

The prelude to the Executive Order involved a sustained national activist campaign that started in 1990 and culminated with the appointment of Dr. Robert D. Bullard and Rev. Benjamin Chavis to serve on the Clinton Transition Team’s Natural Resources Cluster in 1992. These activists paved the way to the formulation of 12898 and the formalization of the role of the National Environmental Justice Advisory Council (NEJAC). Deeohn Ferris played a pivotal role by working to organize national grassroots input channeled to the Clinton-Gore Transition Team.

All of the existing EJ networks played vital roles in this movement for federal action and the “Earth Day Letter” drafted in April 1990 was especially important and influential in setting the stage for the Transition Team. Throughout 1991, the Southwest Network for Environmental and Economic Justice (SNEEJ) staged demonstrations at the EPA as part of its EPA Accountability Project and this greatly augmented the political forces pushing for Clinton’s Executive Order. William Reilly, as Director under the first President Bush, led the EPA’s response to this growing activism by establishing the Office of Environmental Justice. The first NEJAC was convened in 1993 after Clinton stepped into the White House.

Clinton’s Executive Order surely built on these ad hoc accommodations by systematically transforming the organization of the EPA and ultimately redefining the principles that guided subsequent rule-making and actionable policies across all Cabinet-level Departments.  Further development of EJ policies actually limited the movement by imposing a commitment to standard (qua hegemonic) market-steered metrics that remained profoundly wed to a neoliberal regime that tends to make decisions based solely on quantitative cost-benefit analysis, albeit now projected unto layer upon layer of GIS polygons of one sort or another (e.g., cumulative risk polygons).

The administrative culture of the EPA has for too long been governed by leadership plagued by an unstated acquiescence to the rationality of neoliberal behavioral economics and a relapse into a “cult of scientific expertise.” In this ‘insider/expert’ organizational culture, the EPA historically has been unwilling and unable to make wise use of the constantly evolving innovative methods for the interdisciplinary scientific assessment of risks and their impacts on human and ecosystem health and community resilience.

People’s knowledge of the environment and the scientific fields of ethnoecology have been and continue to be marginalized and disqualified especially in decision-making phases. Yet, any understanding of risk communication must first be grounded in an understanding of perceptions of risk. These are widely varying depending on socioeconomic and demographic factors such as class position, gender, age, educational attainment, and ethnicity, race, or national origin. The cultural and ecological knowledge that may underlie a community’s perceptions of risk cannot be understood or mobilized as part of the decision-making process without the integration of qualitative methods ranging from ethnographic inquiries to topistics and cognitive mapping.

It bears noting that the EPA has been unwilling to critically re-examine the ethics underlying these long-entrenched policy worldviews and adherence to reductionist scientific research procedures that marginalize other forms of knowledge and data sources. From the end of Clinton’s last year in office (2001) through the beginning of the Obama Administration (2009), the EPA failed to fully realize the integration of more nuanced and finely-filtered models of cumulative risk into the regulatory practices and guidelines for the conduct of environmental impact studies and other activities related to risk characterization, management [sic], and mitigation.

Bush II’s policy of benign neglect did nothing to advance the remaking of risk science in the EPA and its hide-bound quantitative and reductionist organizational culture. This was the ultimate and most easily overlooked of the original criticisms made by the environmental justice movement in 1990-92 against racism in the ranks of the EPA itself.

Under Director Lisa Jackson since 2009, the EPA has taken some steps toward rethinking the scientific modeling used in the agency’s risk characterization and management practices. Issues related to structural violence and intergenerational historical trauma, for example, are important new avenues that could help establish a more democratic, participatory, and holistic application of risk science. The re-activating of the Interagency Working Group on Environmental Justice is another positive development since it extends and sustains discussion and coordinated action among all the Cabinet-level Departments.

But therein lays our principal problem with E.O. 12898. The limited discretionary administrative powers of the Executive Order in this case are strictly limited to a politics that can only address the mitigation of environmental harms and risks, regardless of the party in charge. The system is basically designed to try and clean up pollution and other ecological damages after they occur. Industry must have its privilege of profit-making protected; cleaning up and repairing the damage to the air, water, land, people, and all other living organisms is second.

Environmental justice principles call for the prevention of pollution, detoxification and containment at the point of production, rather than mitigation after the fact. There are no externalities in any true cost accounting and we must make a transition to more robust and honest modes of ‘cost-benefit’ analysis that forbid the  ‘discounting’ of the environmental and public health harms caused by private investment decisions. Environmental justice seeks a transition to a non-toxic sustainable industrial ecology in which capital cannot externalize its costs unto people or the environment.

Thus, from the outset E.O. 12898 was incompatible with the sort of ecological politics implied by the Sixth Principle of Environmental Justice. As a movement, by dancing with the neoliberal state, we may have succumbed to two decades of betrayal of this foundational movement principle:

Principle 6 – Environmental Justice demands the cessation of the production of all toxins, hazardous wastes, and radioactive materials, and that all past and current producers be held strictly accountable to the people for detoxification and the containment at the point of production.

Whatever the limits and contradictions of the Executive Order, ultimately the vagaries and pitfalls of partisan politics sabotaged the movement’s ability to sustain momentum and to effect further legal and regulatory changes based on the emerging environmental justice framework for the conduct of risk science. These efforts at ‘non-reformist reforms’ – to borrow a term from Andre Gorz – failed to crystallize even with a progressive group of appointees to the National Environmental Justice Advisory Council (NEJAC). We were interrupted by Bush II.

We learned the lesson of the limits of relying on executive orders the hard way during the two-term Presidency of George W. Bush (2001-2009) when the Environmental Protection Agency (EPA) and other federal agencies were hampered in pursuit of environmental justice goals by an administrative culture of benign neglect. The Bush II administration rationalized its inaction by relying on the empirically unsupported notion that all demographic subgroups are equally affected by toxic wastes, pollution, and other environmental threats. The result was that no special actions were deemed necessary to address the specific problem of environmental racism. In the end, environmental protection for all Americans suffered but was especially acute and damaging to the already ravaged ‘fence-line’ communities comprised predominantly of low-income people of color.

The indisputable conclusion of scientific evidence is that people of color and low-income communities have been and continue to suffer disparate impacts from environmental risks and, conversely, unequal access to so-called environmental amenities (clean air and water, safe homes and schools, access to open space for parks and urban gardens, fresh, safe and culturally appropriate foods, etc.).

But partisan politics too often trump science. GOP administrations are notoriously guilty of dismissing scientific evidence when it fails to support policy objectives which in this case favor corporate interests over the concerns of communities seeking the conjoined objectives of social justice, economic equity, environmental protection and restoration, and ecological democracy.

History of Failed Environmental Justice Legislation

The idea of passing legislation to establish statutory authority to enforce and promote environmental justice precedes by two years Clinton’s signing of E.O. 12898 in March of 1994.  The legendary civil rights activist and Congressman, Rep. John Lewis (D-Georgia), introduced legislation in the House for an environmental justice law in 1992. The proposed legislation was entitled, H.R. 2105 –  Environmental Justice Act of 1992, and had 44 co-sponsors.  Al Gore (D-Tennessee) carried the bill in the Senate.

Despite the efforts of Rep. Lewis and his co-sponsors, this act never made it out of committee for a vote on the floor of the Congress. After subcommittee hearings in November 1993, the efforts to bring this important legislation to a vote failed.  Legislative efforts faded after Clinton signed the Executive Order in March of 1994. One of my Washington, D. C. sources suggests that the Republican take-over of the Senate and House after the 1994 mid-term elections, when Republicans picked up 54 seats in the House and 8 in the Senate, blocked further progress on the legislative front during the entire course of Clinton’s two-term Presidency (1993-2001).

In 2005, environmental justice was once again debated on the Hill. The terrain this time was not the introduction of an Environmental Justice Act but rather re-authorization of EPA funding and the debate focused on the so-called Hastings Amendment (named after Rep. Alcee  Hastings, D-Fla). The Hastings Amendment simply required that funds spent at the EPA would not contravene the objectives and standards defined under Executive Order 12898. On May 19, 2005, the Hastings Amendment was approved. How this affected EPA environmental justice action and planning within the second term of Bush II is itself a matter of debate.

The efforts for actual EJ legislation resurfaced again in 2007 through the leadership of members of the Black, Hispanic, and Progressive Congressional Caucuses. Before she was nominated and confirmed to serve as Secretary of Labor for President Obama’s first cabinet, Rep. Hilda Solis (D-California) introduced a bill entitled H.R. 1103 – Environmental Justice Act of 2007. This time, Rep. Solis managed to organize more than fifty co-sponsors but once again the bill never made it to the floor for a vote.

As recently as February 2011, Rep. Jessie Jackson Jr. (D-IL) introduced legislation for an amendment to the Constitution of the United States that would essentially establish environmental rights. H.J. Res. 33 would amend the Constitution of the United States by establishing a “right to a clean, safe, and sustainable environment.” In 2009, for reasons that I have not yet been able to determine, the Congressional Research Service stopped using the term “environmental justice” to allow citizens and concerned persons to track legislation related to this cause.  We must challenge this decision and also re-assert pressure on lawmakers to move forward with EJ legislation during the session of the 113th Congress.

The prospects for a revival of a legislative initiative to pass an act establishing a federal law of environmental justice will certainly depend on the outcome of the 2012 General Election. We should be working now toward a Progressive shift in the composition of the 113th Congress. This will strengthen the prospects for passage of an environmental justice law during a second Obama term should that come to be. Setting our sights on 2013 for the passage of legislation is realistic and urgent. Perhaps the EJ movement needs its own Wisconsin moment?

Even with the current composition of the 112th Session of Congress, we have an estimated 54 to 60 potential co-sponsors in the House and perhaps 20 willing souls in the Senate. What is the tipping point? The addition of thirty to forty net seats gained over and above all recent losses (2009) in the House by progressive or liberal legislators could create the critical mass required to achieve cloture and bring legislation for a successful vote on the floor. These numbers would not guarantee passage.

A safe assumption for the U.S. Congress is that reaching a hundred co-sponsors in the House is a safer bet for passage of any given bill. Research on state legislatures suggests that the higher the number of co-sponsors the greater the likelihood of passage of a bill. The study of state legislatures suggests a bill must include about one-third of the sitting legislators as co-sponsors for passage to become more likely. Given this data, EJ activists have a lot of work left to do before we reach a critical mass of sympathetic legislators, even with a swing back to a more progressive political composition in Congress as a result of the 2012 elections.

Possible Elements of an Environmental Justice Act

Social justice, economic equity, environmental protection and restoration, and ecological democracy are the conjoined principal objectives of the environmental justice movement. Social justice implies that power/knowledge relations are reconfigured in favor of fence-line and other marginalized communities for their exercise of autonomy in determining their economic and environmental fates.

Economic equity implies a massive redistribution of the wealth produced by the multitude through a 99 percent tax rate on the wealthiest .01 percent of our population that controls more than half of all real property assets, dividends, securities, and income. Less than one-one hundredth of one percent controls the wealth we produced, collectively. It is time to take our commonwealth back. The rich owe the poor an ecological debt. It is time to start paying up.

With this re-appropriated commonwealth, civil society can invest in creating the conditions for a paradigm shift from mitigation to prevention of pollution. Even just a decade-long trillion dollar revenue flow from a 99 percent tax on the wealthiest Americans would allow us to fully fund a transition to a real ‘green economy’ that focuses on detoxification of production processes through the application of the methods and materials of current best practice frontiers in industrial ecology and environmental engineering, especially those based on biomimicry.

We can produce electric cars, yes. But we can also manufacture all the components that go into an electric car without destroying the environment, harming workers’ health, or polluting surrounding communities. The technology of industrial ecology is available but the political will to impose this on capitalists is lacking and that will not change without our own Wisconsin moment.

Environmental protection and restoration are not just rights but obligations. Many indigenous cultures see their primary human right as residing in the collective ability to fulfill their obligations to take care of and restore the ecological integrity of the Earth. Ecological democracy means that the government of the people and by the people shall not allow the Earth to perish due to greed and self-centered individualistic irresponsibility. Self-governance and autonomy of communities in working to fulfill the obligation to care for each other and the Earth are mutually interwoven. These are the ethics of environmental justice and they must be reflected in any efforts to establish an environmental justice law for the United States. An Environmental Justice Act would fulfill these principles by integrating the following elements:

1) Not individual rights but collective obligations. This reflects the basic principle that environmental protection is not just an individual right but a collective obligation of human communities to take care of the Earth and each other.

2) Prevention not mitigation. Environmental protection must be based on prevention rather than mitigation of environmental risks and harms.

3) No externalities; no discounting. Environmental protection means an end to the neoliberal regime that discounts as externalities damage to public health and ecosystem integrity. There can be no state of exception – no suspension of the rule of law when it comes to environmental protection. Environmental security is the optimum form of national security.

4) Integrated cumulative risk science. Environmental regulation is based on an integrated cumulative risk science that includes qualitative data and ethnoecological knowledge including recognition of the compounding factors of structural violence and intergenerational historical trauma. This will involve a shift from a system that seeks to attain minimally acceptable risk towards one that privileges the goal of optimum avoidable risk.

5) Ecological democracy. Environmental regulation and ecosystem management are place and community-based and privilege the social and biological reproduction of human and non-human organisms over all economic prerogatives including the quest for profit.

6) Sustain the three forms of equity. Environmental justice must encompass and sustain inter-group, inter-species, and inter-generational equity.

7) Restoration of the commons. Environmental justice requires the restoration of the the social commons against the entrenchment of solely individualistic private property rights. The social welfare is valued over personal economic gain.

8.) Ecosystem integrity over economic gains. Environmental justice requires an end to the pricing of ecosystems and cultures in a market of tradeable development damage permits. All development must be compatible with local cultural values and ecosystem integrity.

9) Wealth redistribution for reparations. A progressive tax structure, based on a 99 percent rate for the .01 percent of the wealthiest individuals will be used to repair the damage to environment and develop the science of sustainable industrial ecology that prevents future degradation.

10) Biomimicry. All production systems must be based on technologies that mimic natural ecosystems and have restorative or regenerative impacts.

11) Native sovereignty. Environmental justice means all First Nation peoples have sovereignty in their own forms of governance, law, and social organization.

These elements could be integrated into a far-reaching law for environmental justice that values human health and ecosystem integrity and resilience over all other considerations. Such an act would establish a long-term framework not just for addressing the centuries of environmental injustice but the basis for a truly ‘green jobs’ economic transition based on human solidarity and resilience.

Such an Act would be based on the established Constitutional principle that privileges the protection and securing of the common good and general welfare. The advocates of private property have had their turn and the results have been utter deprivation of the multitude of the people and degradation of the Earth as our life support system. The time for a paradigm shift has arrived: A new environmental justice law would be a critical pivot upon which we can stake our claims to a transition to a just and sustainable solidarity economy and a rejection of the unjust and unsustainable predatory economy that has dominated the planet for the past five hundred years.

Devon G. Peña, Ph.D., is a lifelong activist in the environmental justice and resilient agriculture movements, and is Professor of American Ethnic Studies, Anthropology, and Environmental Studies at the University of Washington in Seattle. His influential books include Mexican Americans and the Environment: Tierra y Vida (University of Arizona Press, 2005) and the edited volume Chicano Culture, Ecology, Politics: Subversive Kin (University of Arizona Press, 1998). Dr. Peña is the founding editor of the Environmental & Food Justice blog, and is a Contributing Author for New Clear Vision.

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