Dr Salvatore Casabona, EU Centre Visiting Fellow
20 Sep 2013
HSS Meeting Room 2 (HSS-03-83), NTU Yunnan Garden Campus
The EU Centre’s Visiting Fellow Associate Professor Salvatore Casabona delivered the seminar titled “Environmental (in) Justice: have people the power?” at the NTU College of Humanities, Arts and Social Sciences on 20 September 2013. The seminar was organised by the NTU Public Policy and Global Affairs Programme. For a printable version of this seminar report, please click here.
For Prof Salvatore Casabona, the idea of environmental justice is multi-disciplinary in nature; it can relate to the distribution of costs between different communities on issues of water resources, as well as to global north-south debates on greenhouse gas emissions and climate change. When countries negotiate on a global polluting standard, they also invoke the principle of environmental justice. All these considerations have to be factored into a strategy for a regulatory approach on the environment.
In unpacking the meaning of the terms “environmental” and “justice”, Prof Casabona highlighted how problematic they were. What counts for the environment could encompass anything from the protection of ecosystems, or endangered animal species or human health. The variety of meanings here are so vast, and this has been reflected in different framings of environmental law around the world. The element of scientific uncertainty also compounds the definitional problem, when such cases are presented before courts – the kind of scientific research necessary to prove a case of breach against an environmental law can be so unrealistically extensive. For instance if an industrial plant pollutes a river, the welfare of humans, plants and the environment at large could all be potentially affected – but to determine each their level of disruption could be a rather impossible task, if it is to be ascertained exactly how much damages the polluter in question has to pay out.
“Justice” is an equally problematic term. The philosopher John Rawls perhaps gave the best definition of justice as the equal distribution of social goods. But when applied to environmental law, this could potentially encompass so many areas – the equal distribution of profits, sacrifices, costs, and even of risks of the development of societies. The question is, how do courts get to a fair decision?
For Prof Casabona, the framing of the idea of environmental justice is therefore inherently incorrect. The expression was first employed in 1994, by the Clinton administration in the US. The US legal experience in environmental justice has included landmark cases like the 2001 US Supreme Court case South Camden Citizens in Action v. New Jersey Department of Environmental Protection, in which the element of racial discrimination against a societal minority was even combined with a case of environmental pollution. While it has been vital to uphold minority rights, this case showed how the scope of enforcing environmental justice in the courts can encompass just about any other areas of law, which can potentially engender the unreasonable “not in my backyard (NIMBY) syndrome”.
European and EU jurisdictions, as Prof Casabona explained, pay more attention to the element of access – that is, the access to justice and to information. This is undergirded by international agreements such as the 1992 Rio Convention, which in general provides for more participation and input of stakeholders with regards to policies and issues impacting the environment, compared to what the US court rulings provide. Giving proof in court of the occurrence of pollution is a very expensive procedure, which individuals are unlikely to be able to afford. This is where full access to environmental associations like Greenpeace is important, if at least to defray legal expenses. The full access to information is equally important, as a preventive, preemptive measure; for instance when a factory is established in a community’s backyard, residents should be made aware of the potential effects of the factory’s activities.
In the other words, Prof Casabona was calling for a form of participatory co-regulation, in which citizens, local communities, business and other stakeholders must be involved in the law making processes. This is crucial not only for the regulator to hear different points of view, but also as a preventive, preemptive measure as discussed above.
Compared to taking legal action to uphold principles of environmental justice, the co-regulatory approach is much less likely to be fraught with definitional ambiguities and make for expensive, complex and open-ended court rulings.
In conclusion, Prof Casabona emphasised that we already live in a polluted global environment. The question therefore is one of measure – how much pollution is to be considered too harmful? A rights-based approach as afforded by environmental justice has been costly and technically unfeasible at times, whereas a form of market-based approach geared towards the redistribution of fiscal benefits, damages and support in any given environmental community may be a better way to achieve the same aims.