Sustainable Development: A Review of International Literature

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CHAPTER 11: ENVIRONMENTAL JUSTICE

Summary

11.1 Despite ongoing controversies about precisely when, how and to whom an environmental injustice can be said to occur, there is general consensus that environmental justice ( EJ) is based on the human right to a healthy and safe environment, a fair share to natural resources, the right not to suffer disproportionately from environmental policies, regulations or laws, and reasonable access to environmental information, combined with participation in environmental decision-making.

11.2 Most commentators pinpoint the United States as the country of origin for EJ, although movements can be traced at varying levels of development in Asia, Africa, Europe and across the Americas. However, due to the long-term nature of both federal involvement in the delivery of EJ and grassroots activist movements and campaigns, examples of good practices are best documented in the US. This chapter, therefore, concentrates on transferable lessons for Scotland from the US experience and is structured differently to the foregoing thematic chapters.

11.3 Environmental justice movements have commonly campaigned around six main issues: poverty, race, institutional change, law and policy, land tenure and management of natural resources, and health and pollution.

The Scottish position

11.4 The First Minister's speech of February 2002, which openly acknowledged for the first time that there had been far too little research in Scotland into the social effects of environmental degradation, has been one of the primary drivers for environmental justice in Scotland. References to EJ have followed in some key policy and consultation documents.

11.5 The Scottish Ministers have also now provided SEPA with guidance on the contribution it can make to sustainable development which stresses that SEPA should address environmental justice issues insofar as its functions permit. Separately, NGO literature has sought to voice environmental justice concerns and also provide research on issues such as good neighbour agreements between communities and business. The arrival of environmental justice to the Scottish policy landscape is relatively recent, in comparison to the US.

Introduction

11.6 The term 'environmental justice' has evolved over the decades and appears to have a range of interpretations. Most commonly, it has been used in the USA to embrace notions of discrimination, equity, denial of benefits and the adverse effects of the environment, initially in relation to people of colour and, more recently, low-income populations. This chapter concentrates on identifying the main theoretical underpinnings of environmental justice as described in key academic texts over the past five years.

11.7 EJ movements can be traced at varying levels of development in Asia, Africa, Europe and across the Americas (Adebowale, forthcoming). However, most commentators would agree that the US is the most advanced in terms of its experience of recognising and addressing environmental injustices (for instance, ESRC, 2001; Agyeman, Bullard and Evans, 2003; Cudworth, 2003). For this reason, the possible transferable lessons that are described in this chapter consist of documented examples from the US.

11.8 In recognition of the extensive, recent Sustainable Development Research Network review of the UK evidence-base for environmental justice, sponsored by Defra (Lucas et al, 2004), this review has purposefully avoided repeating a review of the UK literature. By taking this approach, it aims to offer a broad representation of the literature-base for environmental justice, as both a grassroots movement and a framework to guide policy development and implementation across a broad spectrum of delivery areas relating to the environment.

Concepts and definitions

11.9 An overview review of the literature identifies literally hundreds of different definitions, many contested, but there is a general consensus that EJ essentially consists of:

  • the human right to a healthy and safe environment, combined with a responsibility to maintain it;
  • fair share to natural resources and the right not to suffer disproportionately from environmental policies, regulations or laws;
  • access to environmental information, participation, and decision-making.

11.10 The various terminologies employed in discussions of environmental justice tend to be used interchangeably, for example, environmental (in)equality, environmental (in)equity and environmental (in)justice), but when unpicked they have quite different implications for policy. For example, people may have unequal access to green spaces but this does not necessarily represent an inequity, as this may simply be a reflection of their choice to live in the inner city rather than the countryside. Similarly, inequities may occur from the disproportionate exposure of one sector of the population to an environmental bad, but this may not be an intentional injustice (as this is legally determined) in that it has occurred as an accidental by-product of an activity, rather than from an intention to harm or from negligence to protect those people.

11.11 A further general issue within environmental justice research is the ongoing methodological debate. It would appear that for every study that finds evidence of environmental inequality another will show that the result is due to the data available or unit of analysis employed. It has been equally hard to win legal argument, with numerous cases either failing to prove intentional discrimination, in the first place, or with a favourable decision being turned over at appeal. Often this is because the plaintiffs are unable to gain access to the same level of resource and legal representation as the defendants of such cases, who are often large corporations or state agencies.

The role of the State

11.12 Eady (2003) has noted the critical role of the State in preserving environmental rights and in moving US society towards greater environmental justice. The US Environmental Protection Agency ( EPA) has acted as a model for the formulation of regulatory state programmes with formats for enforcement, risk assessment and pollution prevention. According to Eady, these models have been relatively successful in achieving broadly based stakeholder buy-in for environmental justice issues.

11.13 The 1969 National Environmental Protection Act encouraged 'productive and enjoyable harmony between man and his environment; its key aims were to promote efforts to prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the nation; and to establish a Council on Environmental Quality.

11.14 In 1992, in response to calls for further laws on environmental equity, the USEPA created an Office of Environmental Justice. Two years later, President Clinton signed Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations; subsequently, the Republican Bush administration, which took over in 2001, stated that the Order and environmental justice would still be viewed as an important policy area. This led the head of the USEPA to circulate an internal memorandum re-emphasising the Government's:

"… firm commitment to the issue of environmental justice and its integration into all programs, policies, and activities, consistent with existing environmental laws and their implementing regulations" (Executive Order 12898 199)

11.15 More recently, however, there have been criticisms of the EPA's performance in relation to Executive Order 12898. In September 2000, 150 citizens of African-American origin filed a class-action lawsuit against the Agency, charging it with racism, both nationally and in individual offices, such as those in North Carolina and Atlanta (WorkingForChange, 2000).

11.16 In recognition of the limited extent to which environmental justice was being incorporated into the EPA's functions, its own Office of Environmental Justice commissioned the National Academy of Public Administration (2001) to conduct a study of how environmental justice concerns could be incorporated into three of the EPA's permitting regimes). Its principle recommendations focus on leadership, permitting procedures, priority setting and public participation.

11.17 The EPA is currently developing a stand-alone plan to integrate environmental justice considerations into its strategic planning process ( USEPA, 2005). However, only those commitments and activities that contain measurable outcomes, and can be attributed to helping the Agency meet its strategic targets, will be included. This has been heavily criticised by EJ activists, academic and practitioners as effectively weakening and diluting the basic intentions of Title VI of the Civil Rights Act.

A civil right and moral duty

11.18 Interestingly, Eady (2003) finds that, whilst the EPA model has created policy development at state-level, Race Relations Law has been a crucial facilitator. For example, a useful tool for environmental justice within the legal framework has been the use of Title VI of the Civil Rights Act 1964: Non-discrimination in Federally Assisted Programs. This provides that each federal agency must ensure that no person is denied the benefits of, or subjected to, discrimination under any programme or activity receiving federal financial assistance. Section 601 of the Civil Rights Act specifically states that:

"no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. " (Civil Rights Act, 1964, Title VI, Section 601)

11.19 Section 602 of the Act then requires each federal agency which is empowered to administer a federal programme to draw on the provisions of Section 601 by issuing rules, regulations or orders that will be consistent with the objects of the statute. The Legislative History of Title VI of the Civil Rights Act states that it was enacted because of the many examples cited where people of color in the US were denied equal protection and equal benefits under federal assistance programmes related to vocational and technical assistance, public employment services, manpower development and training, and vocational rehabilitation. Specifically, the History states that in every essential of life US citizens are affected by Federal Financial Assistance Programs. Through these programs, medical care, food, employment, education, and welfare are supplied to those in need. For the government, then, to permit the extension of such assistance to be carried on in a racially discriminatory manner is to violate the precepts of democracy and to undermine the foundations of government ( US Department of Justice, Civil Rights Division, 1998).

Environmental racism

11.20 As Kennedy (2004) identifies, EJ has strong roots in the US civil rights movement dating back to the 1960s, where there was a realization that racial discrimination was being compounded by environmental injustices. As such, it is still closely linked to the struggle for Civil Rights by Black, indigenous and Hispanic community groups across the US. This race perspective is a central theme of the US dialogue on the environment and social justice and, thus, a core aim of EJ has been to achieve equitable distribution of environmental risks along 'racial' and social lines (Dorsey, 1998).

11.21 In his recent publication, Bullard (2005), who is generally recognised as the leading US activist-writer on this subject, defines environmental racism as any policy, practice or directive that differentially affects or disadvantages (whether intended or unintended) individuals, groups or communities based on race or colour. It combines with public policies and industry practices which benefit corporations while shifting costs to people of colour. Government, legal, economic, political and military institutions reinforce environmental racism, and it influences local land use, enforcement of environmental regulations, industrial facility-siting and the locations where people of colour live, work and play.

11.22 However, racial discrimination has also been central to EJ campaigns in South Africa, India and South East Asia. Indeed, Martinez Alier (2003) contends that environmental racism was first identified and analysed in India and South East Asia. The environmental justice agenda in India has been intimately linked to the development of an environmental dimension to human rights jurisprudence by the courts, notably the Indian Supreme Court itself (Anderson, 1996; Dias, 1994; Seghal, 2003; Vibhute, 1995).

11.23 In South Africa, where the process of apartheid led to huge divides in the quality of the environment for Blacks and Whites, the issue of race features even more strongly in EJ campaigns than in the US. The environmental justice movement has been a strong part of the call for political change pre- and post-apartheid. The Environmental Justice Networking Forum in South Africa is a strong political and environmental force, which has campaigned on issues of land tenure, ownership of natural resources, environmental health and pollution.

11.24 Stark examples of environmental injustice, in regards to the distribution of land and the placement of dirty industry or toxic sites, have been inherited by the post-apartheid government and made priorities in its environmental protection and social justice programmes. The South African National Environmental Management Act, 107 of 1998 sets out the principles that are to guide government and regulatory institutions in matters affecting the environment. These principles include a requirement to promote both the distributive and procedural elements of environmental justice (Poustie, 2004; Glazewski, 1999; Goolam, 2000).

11.25 Questions of race or ethnicity have also been an aspect of EJ research in the Netherlands, the UK and Romania. For instance, research by Coenen and Halfacre (1999) sought to answer the question 'Does the Netherlands have an environmental justice problem?' The research concluded that environmental racism as conceptualised in the United States was 'largely absent from cities', but that there were pockets of concern.

A grassroots movement

11.26 In their book From the Ground Up, Cole and Foster (2002) compare the USEJ movement to a number of streams converging to form a river. They see the environmental justice movement as encompassing civil rights and environmental racism; the anti-toxics, or environmental health, movement; native American struggles for land, sovereignty and cultural survival; the labour movement for a safer workplace; a group of academics who had begun investigating the disproportionate contamination of certain communities based on race and class; and a few traditional legal and scientific environmentalists.

11.27 Bullard (2001) goes as far as to assert that the environmental justice movement has redefined 'environment' to include where people live, work, play and go to school, as well as how their activities interact with the physical and natural world. As such, it has shifted the way in which scientists, researchers, policy makers, and educators address the environment, from predominantly risk-management to a people-centred and precautionary approach.

11.28 Berger (1997) found that almost all the major grassroots environmental movements in the US were started and led by women, motivated by a desire to improve the quality of their daily lives and the lives of their children, and were shaped by the health or squalor of their neighbourhoods.

Issues and priorities

11.29 Environmental justice movements have commonly campaigned around six main issues: poverty; race; institutional change, law and policy; land tenure and management of natural resources; health; and pollution. This developed out of concerns, backed up by research, that hazardous installations such as toxic waste dumps and polluting factories were mostly sited in areas where most of the population were poor and from ethnic minority groups. As a result, minority neighbourhoods were suffering from the disproportionate impact of industrial and hazardous waste facilities.

11.30 Adebowale (forthcoming) finds that a unifying feature of EJ campaigns, whether in the developed or developing world, is their struggle to change pre-existing inequalities in environmental issues and to gain access to the tools of decision-making to influence the social, economic and political structures in which these inequalities are embedded. The core elements of EJ campaigns which Abedowale identifies are represented in Figure 11.1.

Figure 11.1: Elements of Global Environmental Justice Campaigns

Figure 11.1: Elements of Global Environmental Justice Campaigns

Transferring lessons from the USA

11.31 There are numerous academic, government and non-governmental websites documenting the evidence of environmental inequality and practice examples of initiatives and actions to address environmental injustice in the USA, such as those of the Environmental Justice Resource Center, the Center for Law in the Public Interest; and the Institute of Transportation Studies Website on Environmental Justice. The issues and solutions are usually examined sector by sector, but there is increasing recognition of the cumulative and multiple nature of environmental injustice, that the same communities and most vulnerable repeatedly suffer negative impacts over time and from different sources (see Stevenson, Willis and Walker, 2005, for an overview of the US literature in relation to this).

Pollution from industrial sites

  • Epidemiological studies have so far failed to find categorical evidence of higher rates of disease among people who live near recognised sites contaminated with environmental toxins from manufacturing or materials handling centres. Nevertheless, it has become increasingly clear over the last ten years that poor and minority communities in the USA are more often the hosts of 'dirty' industries than are wealthier or white communities.
  • The first report to systematically document the exact scope, nature, and sources of chemical pollution in the US, was produced by the National Environmental Trust, Physicians for Social Responsibility and Learning Disabilities Association of America in 2001. Using industry data reported annually to the federal government, this report estimates total likely emissions of developmental and neurological toxins in the U.S. and identified geographical hotspots for reported emissions and the most polluting industries.
  • The issue of exposure to toxins has often served to mobilise communities and stimulate grassroots activity. For example, citizens in many poor, black communities around Alabama and the South in recent years have regularly fought companies that have located pollution-spewing industrial plants, hazardous landfills and waste incinerators near homes and schools (Environmental Justice Resource Centre, 2005).

Planning and the built environment

  • Poor racial minorities in urban centres are the most likely victims of power plant toxic plumes, poisonous traffic fumes and lead paint in older rental apartments (Kay, 2005); there has also been widespread use of ex-industrial land to build low-cost housing, land that has not been properly de-contaminated (Son, 2005).
  • In their book Atlanta Mega Sprawl, Bullard et al (1999) found that the burdens of urban sprawl generally tend to fall heaviest on the already disadvantaged.
  • The issue of adequate access to economic and social activities and the inappropriate siting of goods and services are also beginning to emerge as a prominent EJ issue in the US. For example, a 50-state study (Good Jobs First 2005) finds that none coordinate their economic development spending with public transportation and, therefore, cannot determine if their economic development incentives are undermining job access for low-wage workers.
  • An earlier study by the EPA (2003) assessed the relationship between school location, travel choices and the environment.

Transport

  • There is a long tradition of linking EJ with unequal access to transport, starting with the 1960s bus boycotts, arising from the actions of Rosa Parks and the 'freedom riders'.
  • Issues of poor transport are often used to mobilise grassroots EJ activity in the US and there have been numerous successful campaigns, not least the long-standing struggle between the people of Los Angeles and the Metropolitan Transportation Authority (Garcia and Rubin, 2004).
  • A 2003 report prepared by the Civil Rights Project at Harvard University and the Center for Community Change (Sanchez, Stolz and Ma, 2003) systematically identifies the inequitable effects of surface transportation policies in the USA.
  • In policy terms, addressing these injustices is an increasingly important component of transportation policy and planning as demonstrated in Environmental Justice and Transportation: A Citizen's Handbook (Cairns, Greig and Wachs, 2003).
  • The Children's School Bus Exposure Study (Californian Environmental Protection Agency, 2003) characterizes the range of children's exposures to diesel vehicle-related pollutants and other vehicle pollutants during their commutes to school.

Health

  • The relationships between health, social equity, and the physical location of activities have always been a significant part of the environmental justice movement, but are increasingly a focus for the health agenda in the US.
  • In 1998, a paper by Park traced the movement of hazardous wastes in relation to the housing location of Black populations in the US to make the case for environmental racism in this sector.
  • Saha and Mohai (forthcoming) have recently examined historical factors and temporal patterns in discriminatory siting of hazardous waste sites.
  • Numerous epidemiology studies have been undertaken to make the links between respiratory diseases and residents who live in or near hazardous waste sites containing persistent organic pollutants ( POP) (Hatfield, 2003) and lung disease in populations of different ethnic origin (Bryan, 2003).
  • A preliminary study prepared by the American Heart Association is the first to link highway pollution with exercise-induced oxygen starvation, which can bring on a heart attack in people with heart disease (Sternberg, 2002).
  • The urban park movement is building community and diversifying democracy from the ground up by giving people a sense of their own power in deciding the future of their city, their lives, and their children's lives. The movement is making Los Angeles, for example, a greener, more just, and more sustainable community for all. Case studies from grassroots struggles there, in which people of colour have partnered with public interest lawyers, show how people have gained access to parks, beaches, and school playgrounds (Garcia and Flores, 2005).
  • The Center for Law in the Public Interest has published an article to help legal service providers improve human health and the quality of life for traditionally underserved communities through equal access to schools, parks, and green spaces. A recent article published in a special issue on 'Environmental Justice for Children' in the Journal of Poverty Law and Policy provides recommendations to incorporate human health, urban equity, and sustainable regional planning into legal services advocacy (Garcia and Baltodano Flores, 2005).

Community Impact Assessment

  • Community Impact Assessment ( CIA) is a requirement of the 1969 National Environmental Protection Act in the US. This came from the Title VI requirement, referred to above, that all federally funded programmes avoid discrimination on the basis of race. CIA is essentially a social assessment of the environmental impacts of major developments such as retail parks and can also be used to guide urban growth strategies.
  • CIA has become a particularly important part of transport planning and all federally funded transport projects demand that a CIA is carried out to assess whether there is a disproportionate negative impact of the project on minority and low-income groups (see, for example, the Community Impact Assessment for Transportation website).
  • Federal and state government agencies play a significant role in providing the data needed for identifying and addressing the community effects of transportation actions. Nevertheless, there are no systematic, government-wide protocols for collecting or disseminating data at all geographical levels. However, in their paper, Lane and Townsend (2005) provide a useful synopsis of the types of community effects that should be considered as part of a CIA, such as publicly available data sources and key analytical techniques, such as GIS mapping, time-series evaluations and asset inventories.
  • Practitioners generally see case studies as providing the most valuable contribution to advancing the "state of the art" related to developing a CIA process. Increasingly, these demonstrate how people experiencing environmental injustices can be empowered through a process of public engagement and participation. These have led to the development of what is now commonly referred to in the US as Context Sensitive Solutions (for example, Lane and Townsend, 2005; Ward, 2005).

Public participation

  • The requirement for public involvement in the CIA process has led to a wide range of literature on the development and application of participation tools, techniques and methodologies (Schreiber, Binger and Church, 2004). Much of the emphasis of this documentation is towards engaging and involving ethnic minority and low-income groups. Mullin (2000) offers a good practical guide to participation in environmental decision-making.
  • The Madison County Council of Governments (2003) developed a number of innovative visualization tools as part of their regional planning efforts, including visual preference surveys, visual graphics surveys, charettes and vision brainstorming sessions.
  • Morris (2004) notes that government guidance is lacking in this respect and offers some particularly useful suggestions for working on public participation exercises with this sector of the population. Most recently the Federal Highways Agency has published some useful guidance on reaching low literacy groups ( PBS and J, 2005).
  • The National Academy of Public Administration (2001) has made recommendations to the EPA to assist in engaging more effectively with disadvantaged communities The National Environmental Policy Commission Report (2001) and the USEPA (2000) review of the Agency's Public Participation Policy and Regulations are also of importance in this respect.
  • Los Angeles is the second largest school district in the United States, with over 900,000 students and over 80,000 employees at over 1,000 schools, serving a diverse student base, with 72% Hispanic, 12% Black, 9% White, and 6% Asian-Pacific Islanders, speaking over 100 different languages. New construction and modernization programmes are creating jobs for local workers and stimulating the Los Angeles economy in a model programme for public works projects. The programme will create 174,000 jobs, $9 billion in wages, and $900 million in local and state taxes. The School District has targeted small businesses and local workers to ensure they receive a fair share of these benefits through programmess that serve as best practice examples for other public works projects around the country. To achieve this goal, Los Angeles Schools District provides ten-week pre-apprenticeship training, and facilitates placement in union apprenticeship training programmes (Centre for Law in the Public Interest, 2005) .

11.32 One thing that is noticeably absent in the us literature is a discussion of environmental justice in relation to exposure to, and the impacts of, 'natural' disasters like flooding, although this is increasingly being recognised as an issue by the UK Environment Agency. It is highly likely that this will rise up the us political agenda following Hurricane Katrina. Indeed, Litman (2005) has recently raised this issue, noting Wolshon's concerns in 2002 about the justice of the New Orleans evacuation plan. Both authors claim that the plan demonstrates that the authorities were both aware of and willing to accept the significant risk to non-car owning residents in the event of a disaster. No free or subsidised transport services were provided for them and the little effort that was made to assist non-car drivers was careless and negligent.

The Scottish position

11.33 One of the principal milestones towards the adoption of an environmental justice agenda in Scotland was the First Minister Jack McConnell's speech delivered in February 2002. He stressed that social and environmental justice was an important theme of his administration and indicated that,

"… the reality is that the people who have the most urgent environmental concerns in Scotland are those who daily cope with the consequences of a poor quality of life, and live in a rotten environment - close to industrial pollution, plagued by vehicle emissions, streets filled by litter and walls covered in graffiti. This is true for Scotland and also true elsewhere in the world. These are circumstances which would not be acceptable to better off communities in our society, and those who have to endure such environments in which to bring up a family, or grow old themselves are being denied environmental justice. "

He acknowledged there had been far too little research in Scotland into the social effects of environmental degradation. Key points in the speech were the following themes:

  • Industries which discharge into the environment cohabited with communities, and were interdependent on each other - for workers and for work.
  • Improved relations between a community and industry should be encouraged with industries striving to be good neighbours, and aiming to engage with local communities to address their concerns and promote better mutual understanding.
  • A thorough and honest appraisal of environmental performance could be the spur to further improvements - this could be achieved in part by more Scottish businesses publishing Corporate Social Responsibility Reports.
  • Environmental reporting and a concerted effort to reduce emissions and resource use would improve openness and accountability to stakeholders - not just shareholders.
  • The cumulative experience of communities growing up in the shadow of old traditional industry impacts on life chances and future opportunities.
  • There needs to be more openness in dealing with complaints so that people who want to raise issues can know who should be dealing with it and organisations should work together to deal with genuine concerns.
  • It would only be possible to accurately assess the effectiveness of current powers when communities could fully understand the impact and activities of SEPA, local authorities and others, or the reasons why no action seemed possible or appropriate.

11.34 The environmental justice focus was very much on disadvantaged low-income communities suffering from pollution, with the First Minister's speech concerned mainly with the procedural side of environmental justice. The need to address environmental inequalities was recognised and support expressed for addressing greater levels of engagement with communities. The First Minister outlined the Executive's record and plans on other aspects of the Executive's sustainable development policy, for example, improving public transport and housing stock and increasing recycling rates, all of which may indirectly impact on environmental justice. The First Minister's speech did appear to provide a considerable degree of high-level political leadership for environmental justice which has not been so apparent in other parts of the UK.

11.35 References to environmental justice have followed in some important policy and consultation documents ( e.g. Scottish Executive 2002c, 2003, 2003a (the Partnership Agreement); Scottish Executive Development Department, 2001, 2003, 2004, and 2005). Many proposals contained in these papers have the potential to address EJ issues, such as more stringent enforcement of environmental law (see below) or enhanced participatory measures proposed for the planning system. Overall, measures to promote procedural environmental justice have tended to predominate, as is the case, for example, in the planning consultation papers referred to above.

11.36 As a result of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in an Environmental Matters (1998) ("the Aarhus Convention") and the EC directives implementing the Convention's obligations, it is apparent that measures to enhance such engagement by means of, for example, improving access to information and public participation mechanisms have been given greater consideration than measures to address 'distributive justice' aspects (that is the physical redistribution of environmental goods and bads). These include Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC ( OJ L 41, 14.02. 2003, p 26) and Directive 2003/35/ EC, providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC ( OJ L156, 25.6.03, p 17).

11.37 There is recognition of the need to address the more substantive distributive environmental justice concerns. For example, the Policy and Financial Management Review of SEPA intimates that enforcement, the role of and links between the planning system and the environmental law system, consistent regulation, and regulation targeted towards risk are possible measures (Scottish Executive, 2003). Although, a variety of measures have subsequently been taken to enhance environmental law enforcement, including making available higher maximum penalties on summary conviction (Antisocial Behaviour (Scotland) Act 2004) and the establishment of a network of specialist fiscal procurators, these are not specifically targeted at low income or worst off neighbourhoods.

11.38 Both the distributive and procedural elements are encompassed by the way in which the Executive has defined its understanding of environmental justice:

  • the 'distributive justice' concern that no social group, especially if already deprived in other socio-economic respects, should suffer a disproportionate burden of negative environmental impacts;
  • the 'procedural justice' concern that all communities should have access to the information and mechanisms to allow them to participate fully in decisions affecting their environment (Finnie, 2003; Fairburn et al, 2005; Poustie 2004).

A weakness of this definition is that it does not specifically address promotion of access to environmental goods. (Obviously some public authorities such as local authorities are in a better position to facilitate such access than others.)

11.39 Subsequent research has been commissioned by SNIFFER and SEPA on whether there is evidence of distributive environmental inequity in Scotland (Fairburn et al, 2005) and on whether SEPA can legitimately address environmental justice issues through its current regulatory framework, in terms of permitting regimes, enforcement and associated rights to information and participation (Poustie, 2004). It should be noted that although research similar to that conducted by Fairburn et al (2005) has already been conducted in England and Wales (for instance, Friends of the Earth 1999 and 2003; Walker and Mitchell, 2003), the Environment Agency had only just begun to undertake research similar to that undertaken for SEPA at the time of writing of this report and thus Scotland is just ahead of England in this respect.

11.40 Fairburn et al importantly identified that there was a geographical correlation between disadvantaged communities and derelict land, poor air quality, poor water quality and the location of significant industrial installations in Scotland. The findings were less conclusive in relation to the siting of waste facilities. Nevertheless, the findings from this study are significant, providing the first systematic confirmation of distributive environmental justice problems in Scotland. Poustie (2004) sought to address not simply the procedural dimension of environmental justice but also the distributive elements, namely whether SEPA could actually use its permitting and enforcement powers to address substantively environmental justice issues, and concluded that it could. He also addressed the relationship between human rights provisions in the European Convention on Human Rights.

11.41 Poustie has argued that, internationally, the clearest comparative lessons for SEPA as to what it might do to address both distributive and procedural environmental justice concerns within its legislative framework comes from the USEPA and reports by the US National Academy for Public Administration (2001), which provides a detailed account of how the US agency can address environmental justice work through its legislative framework. Poustie also contends that India provides an indication of the possible links between human rights provisions and environmental justice, although the context obviously differs considerably from Scotland.

11.42 It is probably fair to say that the focus of EJ research in Scotland has been relatively limited to date in comparison with, for example the US, and has focused principally on the effect of pollution on communities, tending to ignore issues such as transport. However, the research programme is certainly growing and in some respects is in advance of the research programme elsewhere in the UK, as explained above. Published recently, Public Attitudes and Environmental Justice in Scotland (Scottish Executive 2005j) is based on a representative sample of the populations and looks at what people actually regard as the major, and potentially the greatest, environmental problems in their neighbourhoods. Importantly, this research, which was undertaken to inform government policy on EJ, investigated how concerns about one's environment might have a wider impact on health and quality of life. In 2005, the Executive also commissioned research to investigate effective methods for providing accessible environmental information to the public, which will be published in early 2006, and has recently commissioned a study looking at the social impacts of flooding.

11.43 The Scottish Ministers have also now provided SEPA with guidance on the contribution it can make to sustainable development, stressing that SEPA should address environmental justice issues insofar as its functions permit (Scottish Executive, 2004). This is significant and stands in contrast to the equivalent guidance for the Environment Agency in England and Wales, which makes no such reference (Defra, 2002).

11.44 Separately, NGO literature has been influential in promoting the environmental justice agenda (see Dunion, 2003) and has furnished detailed research on issues such as good neighbour agreements between communities and business (Friends of the Earth Scotland 2000, 2004). Indeed, it is notable that Friends of the Earth Scotland adopt an approach to campaigning which is markedly more oriented towards social and environmental justice than their sister organisation south of the border.

11.45 The potential role of the land-use planning system to address both the substantive and distributive and the procedural environmental justice issues is starting to be better explored through research, for example, research on the interaction of planning and environmental law, and many of the measures proposed as part of the modernisation of the planning system have the potential to address distributive and procedural environmental justice. However, it should be noted that one key procedural mechanism which, it had been argued, would further environmental justice, a third party right of appeal, has been rejected by the Executive (Scottish Executive, 2005i).