Environmental Justice in Developing Countries

Perspectives from Africa and Asia-Pacific

Rhuks Ako

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781135956257
• Topic: Economics
• Subtopic: Development Economics
• Index: Economics

The evolving environmental justice paradigm is conceptualized differently based on political, economic and historical factors. In developed countries, emphasis is placed on the role of individuals in environmental decision-making and the protection of their access to the prerequisite environmental information and capacity to challenge environmental decisions is the main focus. However, in developing countries, access to land and natural resources are considered integral elements of environmental justice paradigm.

This book focuses on the conceptualization, recognition and protection of environmental justice in developing countries. It explores the situation by engaging an analytical discourse of relevant legal provisions in four case study countries including Nigeria, South Africa, India and Papua New Guinea. The comparative analysis of environmental justice in these countries present a framework within which to appreciate the conceptualization of the environmental justice paradigm

1 Introduction

Scope of the book

Introduction

This chapter provides a broad introduction to the book that engages in the legal discourse on the interpretation, recognition and enforcement of environmental justice from the perspectives of developing countries in Africa and the Asia-Pacific. Environmental justice, both as a normative and practical issue, has developed significantly since its humble beginnings in the United States of America where the movement evolved as a campaign against the uneven distribution of environmental polluting activities and projects. Now, there exists a plethora of literature that attempts to discover and uncover the theoretical and practical exigencies of ‘environmental justice’, albeit from different disciplines, analytical frameworks and theoretical perspectives. This book aims to contribute to the environmental justice discourse, although from a legal perspective. It concentrates on the discussion of relevant principal legal texts and occurrences as well as judicial decisions in Africa and the Asia-Pacific from four case study countries – Nigeria, South Africa, India and Papua New Guinea (PNG). The role of law in the understanding of environmental justice and, indeed, the regulation of society generally cannot be overestimated. To put the book in proper perspective, this chapter defines environmental justice, analyses the theoretical basis for the concept and outlines the book’s scope and structure.

Definition of environmental justice

Environmental justice means different things to different people and as such is defined and applied taking into consideration peculiar communal situations including political, economic, social and historical factors. A few definitions of environmental justice are discussed to reflect how the above factors shape the understanding and application of environmental justice across the world, particularly in developing countries, the subject of this book. In the USA, for instance, environmental justice originated from ethnic minority campaigns against the siting of hazardous waste sites. Therefore, the issue of race is integral to defining environmental justice.¹ Also, fundamental to the definition of environmental justice in the USA is the variety of peoples and cultures that constitute the country that is perhaps the world’s greatest melting pot of peoples from different original national origins. These factors are manifest in the United States Environmental Protection Agency’s (USEPA) definition of environmental justice as ‘the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, culture, education, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies’.² The key terms in the above definition – ‘fair treatment’ and ‘meaningful involvement’ – are further defined by the USEPA with the former meaning that no group of people, including racial, ethnic or socioeconomic groups, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal and commercial operations or the execution of federal, state, local and tribal environmental programs and policies.³ ‘Meaningful involvement’ means that:

(1) potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; (2) the public’s contribution can influence the regulatory agency’s decision; (3) the concerns of all participants involved will be considered in the decision-making process; and (4) the decision-makers seek out and facilitate the involvement of those potentially affected.⁴

Looking beyond the significance of the wide ambit of the USEPA’s definition that is broad enough to cater for the country’s large multi-ethnic society, the definition is also important as the interpretation of the key phrases encapsulate the two broad aims and gains of the early environmental justice movements. First, that the issue of uneven allocation of environmental burdens is addressed such that ethnic minorities do not bear disproportionate burdens and second, that the communities to be impacted by such allocation ought to have been involved in the decision-making processes to determine the siting of waste sites.

In the UK environmental justice is defined taking into specific consideration the income disparities that create and/or exacerbate ‘environmental inequalities’. The UK Environmental Agency emphasizes the term ‘environmental inequalities’ rather than ‘environmental justice’, which arises ‘where specific communities, such as the most deprived, experience a poorer environmental quality.’⁵ The overriding emphasis on the socio-economic basis of environmental justice in the UK is further evidenced in the Department for Environment, Food and Rural Affairs (DEFRA) funded report Environment and Social Justice: Rapid Research and Evidence Review⁶ that noted:

• Environmental injustice is a real and substantive problem within the UK
• Problems of environmental injustice afflict many of our most deprived communities and socially excluded groups
• Both poor local environmental quality and differential access to environmental goods and services have a detrimental effect on the quality of life experienced by members of those communities and groups
• In some cases, not only are deprived and excluded communities disproportionately exposed to an environmental risk they are also disproportionately vulnerable to its effects.⁷

A significant point that re-emphasizes the overarching attention to income disparity in the UK definition is that procedural issues (including providing support for local communities to be involved in the decisions that affect their local environment) are not considered integral to their definition. Instead, they are considered as part of the solution to resolve the core problem of socio-economic inequities.⁸ It is noteworthy however that the Scottish Executive adopts a dual-pronged definition of environmental justice that emphasizes both socio-economic disparity as well as procedural issues.⁹

Environmental justice is defined differently in developing countries, particularly those rich in environmental resources. In such countries rich in solid minerals, oil, or biodiversity, for instance, access to natural resources and/or benefits therefrom is considered an integral aspect of environmental justice.¹⁰ Beinart and McGregor noting the differences in the conception of environmental justice between developed and developing countries observed that while some environmentalists use the environmental justice platform to emphasize the responsibility to future generations for the well-being of the planet, ‘Africanists’ by contrast, consider issues such as access to resources as the critical issue for communities.¹¹ The challenges for environmental justice in this ‘African’ context include ‘the equitable distribution of environmental amenities, the rectification and retribution of environmental abuses, the restoration of nature, and the fair exchange of resources’.¹² In Obiora’s view, environmental justice is not simply an attack against environmental discrimination, but a movement to rein in and subject corporate and bureaucratic decision-making, as well as relevant market processes, to democratic scrutiny and accountability.¹³

There is support for this view from the South Africa Environmental Justice Networking Forum that defines environmental justice in similar vein thus:

Environmental justice is about social transformation directed towards meeting basic human needs and enhancing our quality of life – economic quality, health care, housing, human rights, environmental protection, and democracy. In linking environmental and social justice issues the environmental justice approach seeks to challenge the abuse of power which results in poor people having to suffer the effects of environmental damage caused by the greed of others.¹⁴

Environmental justice has been defined along similar lines in the Asia-Pacific region where access to environmental resources is also a fundamental issue. The Asian Pacific Environmental Network (APEN) defines environmental justice as the ‘right to a clean and healthy environment in which … communities can live, work, learn, play and thrive’.¹⁵ Environmental justice according to APEN emphasizes accountability, democratic practices, equitable treatment and self-determination. Its principles prioritize public good over profit, cooperation over competition, community and collective action over individualism, and precautionary approaches over unacceptable risks.¹⁶ The definition also underscores the social context in the region where there are numerous cases of alleged corporate malpractices against indigenous communities in the exploitation of both their environmental and human resources.

What can be deduced from the above discussion on the definition of environmental justice is the fluidity of the concept to cover a wide range of issues that is peculiar to societal challenges. In the USA, racial factors are fundamental to the concept while in the UK, socio-economic disparity is the focal challenge. In developing countries, especially in Africa and the Asia-Pacific regions, generally speaking, access to environmental resources is a major challenge. This is by no means suggesting that racial factors and economic disparity highlighted in the USA and UK definitions are not sometimes relevant or prominent in Africa and the Asia-Pacific. Rather the point being made is that these issues are often considered as subtexts of the broader context of access to environmental resources.¹⁷ There is however a consistency in the core ideals of environmental justice that include the reference to disadvantaged groups that should be protected from being denied equal opportunities in the fair distribution of environmental resources and their involvement in environmental decision-making. Walker identifies these recurrent themes that consist of distributive, procedural and recognition elements as the ‘three concepts of justice’.¹⁸ Thus environmental justice may be described as the interaction of these core elements and other peripheral issues (these depending on the peculiar situations of the community in question) to determine the fair allocation of environmental resources. In Tarlock’s words, ‘the overall motive of the concept is to promote and protect equality and fairness in the distribution of environmental adversities.’¹⁹

Undoubtedly, environmental justice has evolved from its rather humble beginnings as an intra-national struggle by deprived Americans to challenge alleged inequalities. It is now a framework that the relationships between governments and their citizens, corporate entities and their stakeholders including inter-generational concerns are being examined. Environmental justice has since become an attractive global concept because of its compatibility with the contemporary sustainable development paradigm that promotes environmental sustainability and public participation in the development process. One may in fact argue that environmental justice is not just compatible with the sustainable development paradigm but is also an integral part of it as the former straddles two of the latter’s three elements, that is, environmental and social elements. While the environmental element emphasizes that economic development initiatives must take cognizance of environmental issues, the social element reaffirms the importance of public participation in the development process. Indeed public participation is central to both environmental justice and sustainable development.²⁰ The public participation element that has become entrenched in environmental protection is a remarkable development given the failures of the erstwhile environmental protection regime. As Bullard argues, the mainstream environmental law has failed mankind as it exploits the ‘vulnerability of economically and politically disenfranchised communities’ that are often subjected to environmentally unjust decisions and actions.²¹ Public participation thus plays a vital role in integrating people and/or communities that lack economic and political power and would have otherwise suffered from environmental injustice into the environmental decision-making processes. The following section constructs the environmental justice framework, with emphasis on the Absence of Political and Economic Power model, to analyse the recognition and practice of environmental justice, both substantively and procedurally, in developing countries.

Theoretical foundations of environmental justice

Rawls’ distributive conception of justice is the dominant (or default) position²² to begin discussions on the theoretical foundations of environmental justice that draws from three broad categories of justice: distributional justice, procedural justice and entitlements.²³ Briefly, distributional justice refers to the distribution of harms (and benefits) over a population and may be applied across groups within society and across time (inter-generational equity). Procedural justice focuses on the process through which environmental decisions are made – provided these decisions are made through a fair and open process, they may be considered just regardless of their distributional impact. Entitlements approaches seek to ensure that individuals (and communities) have effective access to and control over environmental goods and services necessary to their well-being.²⁴

Rawls develops his principles of distributive justice based on the ‘Original Position’ where every person decides principles of justice from behind a ‘veil of ignorance’.²⁵ The ‘veil of ignorance’ is described as a position where no one knows their place in society, their class position or social status, nor does anyone know their fortune in the distribution of natural assets and abilities, intelligence, strength and the like. A central claim in this proposition is that those in the ‘Original Position’ would all adopt a maximum strategy after satisfying requirements for basic liberties, which would maximize the position of the least well-off. In essence, ignorance of the above-stated details about oneself will lead to distributive principles that are fair to all. A couple of points may be deduced from this position. First is Rawls’ projection that ‘the fundamental idea in the concept of justice is fairness’²⁶ and second, is the emphasis placed on distribution as the major determinant factor in defining ‘justice’.²⁷ The latter point has attracted criticism from environmental justice theorists who argue for a bivalent environmental justice theory that includes ‘recognition’.²⁸

Young, for instance, argues that that although distributional issues are essential components of socia...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Table of cases
• Table of statutes
• Acknowledgements
• List of abbreviations
• 1. Introduction: scope of the book
• 2. Environmental justice: international and regional instruments
• 3. Nigeria
• 4. South Africa
• 5. India
• 6. Papua New Guinea
• 7. The comparative discourse
• 8. Conclusion
• Notes
• Bibliography
• Index