Abstract

Excerpted From: Thomas R. Prible, Walking on Hot Coals: Using the Inter-American Human Rights System to Protect Black Communities' Right to a Healthy Environment, 34 Indiana International & Comparative Law Review 379 (2024) (258 Footnotes) (Full Document)

Franky. Julia Gillespie. Cyrus. Twenty-four people with recorded names, and 152 listed simply as “Female age 8” or “Male age 50.” They range from one to sixty years old, and they represent the known enslaved persons associated with Philip Henry Pitts and his brothers, who were cotton planters in the Black Belt region of Alabama. One of his estates, commonly known as Rurill Hill, was home to many of these enslavedAfrican-Americans, who toiled, slept, wept, prayed, and finally died on this property just outside of Uniontown, Alabama. It was a place that, with its cotton fields, slave quarters, and lynching trees, testified loudly to our nation's racist heritage. Ironically, 150 years later, decades after the passage of the Civil Rights Act of 1964 (CRA), it is now the site of Arrowhead Landfill, where a new type of racism echoes the same refrain. Here, Black communities continue to face unequal treatment and disproportionate harm to their health and their lives.

The 2022 water crisis in Jackson, Mississippi, is illustrative of a pattern that is far too common in the United States. While not the focus of this Note, recent events in Jackson, whose population is over 82% Black, would make a worthy case study. Jackson's lack of access to clean water draws comparisons to the Flint water crisis of 2014, which the Environmental Protection Agency (EPA) later acknowledged revealed preferential treatment of Whites and “discriminatory treatment of AfricanAmericans.” These events reveal an appalling trend: as a whole, Black communities experience a far more unclean and dangerous environment than their white counterparts. Unsafe drinking water, typically the result of underfunded and inadequate infrastructure, is pervasive near minority and low-income communities. Toxic polluters are clustered near minority communities, with 80% of the nation's incinerators located in low-income communities. Studies show that race is the strongest predictor of a community's proximity to a polluting facility and, thus, exposure to toxic substances.

Finding relief for these communities is legally complex because of the nuances involved in environmental law and the difficulty of meeting the legal standard for claims of racial discrimination. For one thing, environmental law is heavily regulatory. Before proposing a major federal action, for example, a National Environmental Protection Act (NEPA) report must be written determining whether the proposal will significantly affect the quality of the human environment. If it does, an Environmental Impact Statement (EIS) must be completed--an endeavor that is a massive and costly undertaking. As part of their NEPA report, agencies must include an environmental justice analysis to assess whether vulnerable communities have “equal access to the decision-making process to have a healthy environment in which to live, learn, and work.” The NEPA report is not determinative, however; as long as the agency takes a “hard look” at the environmental impacts, NEPA does not require the agency to act in any particular way. In other words, a NEPA analysis can reveal that an action will have a significant impact on a particular community, and they can still proceed with the project anyway.

When it comes to siting or permitting an industrial facility, even more regulations are heaped on. Most states regulate their own permitting programs in return for receiving federal funds from the EPA. A facility seeking to operate in Alabama, the focal point of this Note, would need permits from the Alabama Department of Environmental Management (ADEM) for any discharge of pollutants into the water or air. Attaining a permit can take years and is very expensive. By the time a facility is open for business, a huge paper trail lies in its wake.

Despite this, the regulatory functions of the Environmental Protection Agency (EPA) have unfortunately done little to protect the poorest citizens, with permits often issuing for practices that expose low-income and minority communities to disproportionate levels of pollutants. Studies have shown a “strategic choice to locate [locally unwanted land uses] in communities with the least social and political power.” Furthermore, while affected residents used to be able to file private complaints demanding judicial relief for the adverse impacts they faced, the Supreme Court has held that there is no private right of action for plaintiffs to accuse recipients of federal funds of racially discriminatory practices if the plaintiffs are alleging that the harm and racial discrimination are a disparate impact of those practices, as opposed to the specific intent on the part of those recipients to racially discriminate. Thus, citizens must rely on the federal government to bring claims on their behalf. Whereas U.S. courts require proof of discriminatory intent to establish claims of racial discrimination, the international bodies of law are broader and more favorable to the claimants.

These problems are exacerbated by the fact that the United States does not recognize a constitutionally protected right to a healthy environment or even constitutional provisions for a healthy environment, as this Note will discuss in detail. In contrast, the Inter-American Commission on Human Rights (IACHR) has recognized a justiciable right to a healthy environment and recently issued a landmark opinion enforcing that right. Under Article 26 of the American Convention, the Court found that Argentina had “violated the rights to cultural identity, to a healthy environment, to adequate food and to water owing to the ineffectiveness of State measures to halt activities that harmed those rights.”

What might it look like if the United States recognized a right to a healthy environment? In lieu of such substantive rights, one must rely on procedural avenues to make environmental justice-related claims. However, those seeking to make an international claim face another obstacle in that the United States refuses to recognize the IACHR as having binding authority. While not binding on U.S. law, the IACHR's rulings on U.S. cases could have a persuasive effect on lawmakers and ultimately lead to meaningful changes.

This Note will discuss the history of environmental racism in the United States and the failure to find legal remedies domestically. This Note will highlight the importance of using international human rights law to adjudicate environmental justice claims and particularly, the role of the Inter-American system in defending the rights of poor and predominantly Black communities. Finally, this Note will focus on the environmental racism that has occurred in Uniontown, Alabama, as a result of coal ash disposal, and address the procedural steps that could bring relief to their citizens and others whose right to a healthy environment has been deprived. Such proceedings could ultimately lead to substantive changes in U.S. law as it relates to environmental justice.

[. . .]

In conclusion, claims of environmental injustice posed by the people of Uniontown--and others similarly situated--can and should be petitioned before the Inter-American Commission of Human Rights, where a higher regard for the human rights is upheld. These claims may involve the right to a healthy environment, the right of access to meaningful information in decision-making, and the protected rights of Afro-descendants. With each case admitted and heard on its merits, the pressure on the United States government and policy makers will increase, creating a greater incentive for the United States to recognize these rights within its own statutory or constitutional law. While the United States may never--for a variety of reasons--fully ratify or recognize the provisions of the IACHR or other international human rights law, it must take steps to adopt these rights and principles within its own policies or statutory regime. In so doing, “liberty and justice for all” may become a real possibility within these borders.

J.D. Candidate, Indiana University Robert H. McKinney School of Law, expected graduation in 2024; B.S. Indiana University, 1999; M.A. University of Colorado, 2002.