Four ways to make environmental decision-making more just
1) Make the decision process more democratic. Decisions affecting public health and the environment are often made without input from impacted communities. For example, government agency approval of a proposed project is often based on the results of a risk assessment, which is normally conducted by expert consultants hired by polluting companies or by government agency professionals. Communities rarely have the resources to participate in these technical studies, and therefore have limited participation —if any—in the decision-making process.
One way of making environmental decisions more democratic is for agencies to provide funds to affected communities so they can hire their own experts to independently analyze a proposed project and develop community-based alternatives. Some governmental programs provide examples of what a more democratic approach to environmental decision-making might look like (e.g., EPA’s Technical Assistance Grants for communities affected by Superfund sites). However, such programs are limited and don’t address pollution prevention. Opportunities for meaningful and enhanced public participation must be provided before agency decisions are made. Communities have a right to know about the potential effects of a proposed activity before approval. Agencies should conduct extensive public outreach to facilitate community participation early in the process. Technical assistance should be provided for independent community review of proposed projects and alternatives. Finally, this process must ensure that public input can actually affect the outcome.
2) Use a more holistic approach. Instead of looking only at the risks of a proposed activity, officials should be urged to explore and analyze a full range of alternatives, including not taking any action. Decision makers should consider both the risks and benefits of the full range of options, allowing serious consideration of the alternatives developed by affected communities. This method of environmental analysis has been called “alternatives assessment,” and is used in a more limited way to analyze governmentsponsored projects under the National Environmental Protection Act (NEPA). Environmentalists have advocated that a more comprehensive and democratic form of alternatives assessment should become a fundamental part of all types of environmental decisionmaking, including permitting of industrial facilities, building of new freeways, and development of new consumer and industrial products. As in the NEPA context, environmental justice advocates can insist on being a part of the process throughout, and communities could develop and submit their own alternatives to a proposed activity.
Unfortunately, environmental decisions made under other laws do not normally allow for this form of community input. Even the NEPA process is not a panacea, since there is no requirement that the chosen alternative be based upon the needs and desires of affected communities. Therefore, to replace the current risk assessment and environmental decisionmaking paradigms with a process that is more just, community groups will need to pursue a long-range strategy of obtaining broad changes to most of our national and state environmental laws.
3) Use the principle of precaution. The Precautionary Principle says that where there is a threat of harm to human health or the environment, we should act to prevent it, even if causation is not conclusively established. The Precautionary Principle seeks to minimize harm by exploring a full range of alternatives for a well-informed decision.
Important qualitative and semi-quantitative information about the potential adverse impacts of an activity is often available and could be used to make environmental decisions more comprehensive, more democratic and more health-protective. This is especially the case if one considers risk assessment not as a stand-alone decision-making process, but as one component of a comprehensive alternatives assessment. The use of the Precautionary Principle in this context would ensure that environmental decisions are made using the widest range of information available, while still allowing for a consideration of quantitative risk information. In this way, communities can advocate for the lowest level risk option.
4) Incorporate cumulative impacts. Project approval is often based on a narrowly conceived approach to risk management, with a singular focus on incremental risk. In reality, however, individuals are exposed to risks from a wide variety of substances from multiple sources of pollution, the cumulative impacts of which are ignored in decision-making. Under the risk assessment paradigm, individual health risks are determined to be within an “acceptable” range. Yet risks from multiple substances or clusters of sources together may easily exceed the range of “acceptability.” When added to existing risks, the incremental risk from a new source may create an unacceptable health burden in a community. Environmental justice advocates have long argued that agencies shift from traditional risk assessment towards a more comprehensive evaluation of cumulative impacts.
Some form of cumulative impacts evaluation is conducted in a number of environmental settings. For example, NEPA and other similar laws require cumulative impacts analysis of proposed federal actions, including past, present and likely future impacts, recognizing that actions may seem to have relatively minor impacts that become collectively significant over time. Under the Clean Air Act, area-wide assessments for specific pollutants are commonly prepared for planning purposes. In the Clean Water Act context, for example, when a waterway is over-polluted, the area must identify a “control strategy” sufficient to achieve reductions to meet water standards.
In the permitting context, agencies should identify “hot spots” where health risks can be limited with the goal of risk reduction. Agencies should evaluate the total health risk in an affected area before allowing additional pollution. This can be done through an area-wide grid or parcel study, on a caseby- case basis, or by conducting modeling and estimating risk for common source scenarios using existing data. Emissions from all types of sources should be used to estimate risk. When an agency lacks regulatory authority over a pollution source in the area, it should collaborate with the appropriate agency to collect data and explore options to reduce risks. To begin incorporating cumulative impacts into risk assessment, agencies should consider the additive effects from all pollutants at a facility and consider effects of other pollutants in the affected area. Risk reductions and/or local “offsets” should be required.
Agencies respond that they have limited resources and lack guidance in this regard. Tools and data exist to conduct these studies. Until a full budget for a comprehensive program is available, fees should be charged to project proponents for a full impact evaluation. However, lowering “acceptable” levels of risk may require grassroots political power as much as scientific evidence of harm.
Adapted in part from recommendations prepared for the Environmental Justice Air Quality Coalition by the Environmental Law and Justice Clinic at Golden Gate University School of Law in San Francisco.