Featuring
Jeffery Atik
Loyola Law School, Los Angeles
The issues addressed in this section could be approached through three different types of environmental claims: (1) environmental justice, (2) environmental human rights, and (3) “strong environmental rights,” by which I mean the rights of the natural environment itself. These various framings of environmental issues help us to formulate possible political, legal, and technical solutions appropriate to each. By shifting our perspective on these problems, unexpected solutions may emerge.
Environmental justice issues typically involve the disproportionate exposure of the low-income and minority or indigenous communities to high levels of pollution (e.g., industrial and hazardous waste) or their involuntary displacement due to large-scale projects of economic development. It is hardly surprising that in most political systems the welfare of indigenous and minority groups is undervalued in making environmental use decisions. Claims of environmental justice are derived from the principle of equality — that people deserve equal treatment regardless of race or social status. Demanding equality in this context means redistributing (though perhaps not eliminating) environmental burdens.
In contrast, the focus of an environmental human rights analysis is not on the distribution of environmental harms and benefits, but rather whether the environmental harm exceeds a minimum acceptable threshold that is deemed to violate the rights of the affected people. Environmental human rights include the right to clean air and water, or more generally the right to a safe environment. These rights may be invoked to promote direct environmental action, since rights discourse elevates the status of the problem to a higher level of urgency.
Other human rights may — in a particular context — be asserted to preserve environmental quality. For example, indigenous groups might assert cultural human rights, such as access to religious sites; or economic human rights, such as hunting or fishing rights, in order to effectively gain control of ancestral land use. An affected group might also claim violations of the right to life or health to eliminate the presence of particular environmental harms.
Environmental rights, however, may also be conceptually liberated from an anthropocentric anchor. Thus, we could speak of a river’s right to a flow of clean water or a rain forest’s right to survive. When invoking these strong environmental rights, humans intervene as stewards of the environment as opposed to victims of environmental harm.
The concept of environmental justice originated in the United States, where it arose out of the claims of poor and minority groups — groups that traditionally have limited influence upon environmental policy. In their stories of the negative effects of policy measures on specific subgroups found within a particular national context, each of the three case studies presented here can be read as a call for environmental justice. Each of these sub-groups — the Maya-Achí in Guatemala, the Marsh Arabs in Iraq, and the Amungme and Kamoro peoples in Papua — is described as “indigenous” in the sense that they all have, according to the U.N. definition, “a historical continuity with pre-invasion and pre-colonial societies that developed on their territories” and “consider themselves distinct from other sectors of the societies now prevailing in those territories.” Further, each group possesses insufficient political power to avoid devastating changes to its way-of-life through environmental destruction.
Yet equality arguments — such as calls for environmental justice — have important limitations. The essence of the environmental justice claim is that a particular group is bearing a disproportionate burden. The asserted injustice may in turn be remedied by redistributing the burden. But redistribution alone may do little to rectify environmental havoc. For example, the environmental justice movement took root in the United States, where poor and minority communities are disproportionately housed near environmental hazards. Toxic exposure is but another kind of discrimination suffered by these groups, and relocation is rarely a complete solution. While some would gladly move to a cleaner area, U.S. history — like the history of so many places around the world—is rife with examples of minority and indigenous communities being displaced against their will in the name of development and progress. Indigenous peoples are even more rooted to place than other disadvantaged groups are. Relocation is a particularly inadequate solution, for example, to the Amungme and Kamoro people; indeed, their forced relocation is the essence of the harm they suffer.
An environmental justice claim is inadequate to demand the full range of reparations sought by the Amungme and Kamoro. Many of their claims against Indonesia and Freeport McMoRan better fit traditional human rights paradigms. Similarly, when advanced as an environmental justice claim, the Maya-Achí displaced by the Chixoy Dam are reduced to demanding adequate compensation, thus shifting the burdens from one part of Guatemalan society to another. But compensation will not restore the flooded lands or permit Don Cristóbal’s grandchildren to escape a future life in a crowded new city. In and of itself, environmental justice does not demand any reduction in environmental harm — only that this harm be fairly distributed.
A human rights approach may promise more redress. For example, in their advocacy the Maya-Achí have asserted their cultural rights — such as access to their now immersed traditional sacred places. And they have asserted their economic rights to livelihood, and in doing so make the compelling argument that their traditional practices are more sustainable. Asserting human rights claims may require the more satisfactory remedy of environmental restoration (in this case, decommissioning the Chixoy Dam) as opposed to mere compensation.
The ecocentric version of environmental rights — though perhaps fanciful — promises the greatest possible avoidance of environmental harm. Imagine a claim advanced on behalf of the land flooded by the Chixoy Dam or on behalf of the decapitated mountain revered by the Amungme. Here the legal claim would not depend on harm to — or even the presence of — the Maya-Achí or the Amungme. Yet the absence of identifiable human victims undermines the appeal of such an argument, and it is difficult to imagine such a claim holding up in court.
The case of the Marsh Arabs appears even more sinister and problematic from both environmental justice and human rights perspectives. Here the displaced people were targeted on political grounds, as opposed to being accidental victims of unjust development. The lives of the Marsh Arabs were destroyed—as were those of the Maya-Achí and the Amungme and Kamoro — but in the case of the Marsh Arabs, to pose an environmental justice claim would understate the reprehensiveness of the offense. If draining the marshes has no defensible purpose, the characterizations by Nadeem Kazmi and Stuart Leiderman of “environmental warfare” and “genocide” appear warranted. The avoidance of genocide is a core human rights value — and there is well-developed law on this point. A tragic problem arises when the Marsh Arabs pass into being a “lost people” (like Don Cristóbal’s fear for his grandchildren); when the Marsh Arabs no longer exist, there is no human rights-based argument for restoration of the marshes.
In the United States, where there is a robust tradition of minority rights, the advancement of environmental justice claims might effectively serve the broader collective. Environmental justice advocacy might reduce the “gap” in environmental quality between favored and disfavored group, and in the process improve the overall environment. As demonstrated in an essay by Aimée Christensen (available on Dialogue Online), under the current Bush administration the national environmental strategy is dominated by politics, not rights. Given that politics has failed to reflect the nation’s broad popular support for environmental protection, the courts may be the best, last hope.
Yet much of the judicial heroics Christensen applauds are based on environmental legislation that can be repealed, and not on durable rights. Environmental justice claims (anchored to the equal protection clause of the U.S. Constitution) might be effective in particular contexts where there is a “convenient” disadvantaged group sited nearby. Yet the Bush policies extend beyond such circumstances, and have undermined the protections for disproportionately affected groups. The recognition of environmental human rights in U.S. law would permit a defense against policies that adversely affect the wider population, but here too there is a problem of underinclusiveness: Where, for example, are the human rights holders affected by drilling in the Arctic Wilderness? Not all environmental claims may be translated into human rights terms. Ultimately, to resist the Bush administration’s anti-environmental juggernaut, strong environmental rights that are triggered by the simple instance of environmental degradation are needed. Such rights would not depend on the identification of affected groups (as would environmental justice claims), nor even on generalized harm to the population (as would environmental human rights); rather the mere fact of environmental destruction would be sufficient.
There are situations where human and environmental goals can be coherently pursued, and in these cases alliances are attractive. But there are also tensions between and among environmental justice, human rights, and environmental rights claims; and differences among the ultimate moral good to be advanced (equality, human dignity, or the environment) assure rivalry and at times direct conflict. For those who hold a more nuanced, if less coherent, set of values (respecting both human and environmental concerns), an eclectic, à la carte choice of the most effective category of legal claims may be most promising.
