Vulnerability, Equality, and Environmental Justice : The Potential and Limits of Law

This chapter explores efforts to address the unequal distribution of polluting facilities and other environmental hazard exposure through civil rights and environmental law. From the very beginning of the environmental justice movement, its advocates brought lawsuits in federal courts challenging the placement of polluting facilities and landfills as racially discriminatory. Almost uniformly these lawsuits failed, in large part due to the underlying shifts in anti discrimination jurisprudence over the last 30 years in which requirements of intent and causation became serious obstacles to proving discrimination. A parallel effort by advocates to incorporate anti discrimination norms into environmental regulation, using President Bill Clinton's Executive Order on environmental justice, met with some success. However, the application of the Order by environmental decision makers revealed how much in tension are the distributive equity aims animating environmental justice challenges and the narrow risk assessment framework that guides environmental regulation. This chapter suggests that one way to align these two frameworks — to better integrate equality norms into environmental decision making — is through the lens of vulnerability. From an equality standpoint, legal theorists have advanced vulnerability as an alternative to the limitations of anti discrimination law and as a more robust conception of the role of the state in protecting vulnerable populations. In the environmental context, social vulnerability analysis and metrics have long been employed to assess and address the ways that some subpopulations are more susceptible to the harms from climate change and environmental hazard events like hurricanes and floods. The use of vulnerability, either as a policy framework or as social science, has not been utilized much in the pollution context to capture the array of factors that shape the susceptibility of certain places and populations to disproportionate environmental hazard exposure. This limitation suggests that a fertile area of research is how to utilize vulnerability metrics in regulatory and legal analysis to better protect these populations and communities