The Lack of Human Agency in The Environmental Justice System  

by Joanna Danias 

Introduction 

In terms of environmental justice, the act of becoming involved in the development, implementation, and enforcement of environmental laws act as an outlet for people to make their beliefs known and influence change in the greater political system. This, on paper, provides all people, no matter what race, color, national origin, or income level, with a sense of human agency when it comes to events and issues that impact their lives. Human agency is defined as the ability to act independently in making life decisions and the removal of this ability to act can be as impactful to the health of people as poisoned air, water, and land. (Clarke, 2003)  

In practice, the systems of government in the United States provides relatively little regarding human agency except for the judicial outlet itself. In terms of resolutions to problems, no matter where the decisions fall, the government provides an excruciatingly long process to address community concerns and rarely if ever provides a resolution that stands the test of time. When it takes decades to address environmental concerns, the ability to make choices for the future become impossible and thus robs entire communities of their human agency. From the founding of our government to the actual enactment of the law, the de jure system provides arbitration and a system of standards but the de facto nature of environmental justice is one of eternal fights, never ending cycles of litigation, and a reality that serves the corporations over the communities shouldering the burden. What this paper intends to do is analyze the historical and philosophical foundation of our government system from the lens of environmental justice, provide case studies on the implications of robbing people of their human agency, and show how the system itself is part of the problem. If justice in terms of the environment includes the health of the people within the confines of pollution or environmental destruction, then the ability, or lack thereof, to address these concerns from an individual and community stand point should be included in the frame of reference of those seeking to make policy changes.   

History of The System  

 When looking at the philosophical foundation of the United States government we turn to the social contract, natural law, labor, and property theories of the 17th century writers of Europe. It is here, where the collective reasoning for maintaining systems of government and the defining of human rights reaches a fever pitch. As the Protestant revolution begins to fall into the memories of European aristocracy a new form of revolution, a secular reformation, begins.   

In the philosophical cannon, Thomas Hobbes begins by providing a basis for the need for government in his book Leviathan. It is his belief that all men, while equal in the state of nature and afforded all in which he can possess, cannot possibly live in peace without a system that protects his possessions from being seized by those with more wit, power, or cunning. (Hobbes, pp. 62-63) It is the state that provides contract law and defines property itself where nature only provides possession. Uninformed about the civilizations of the new world, Hobbes is keenly aware of the massive land grab about to take place by the European builders of empire and valuing his place in the aristocracy, as teacher to William Cavendish the Earl of Devonshire, he looks to provide natural law to rationalize seizing lands as colonies. (Bunce, 2013) “For the savage people in many places of America, except the government of small Families, the concord whereof dependeth on naturall lust, have no government at all; and live at this day in that brutish manner, as I said before. Howsoever, it may be perceived what manner of life there would be, where there were no common Power to feare.” (Hobbes, p. 63) To Hobbes, and many of the burgeoning liberalism movement, government provides the platform for property and without it, land has no primogeniture and no ownership, instead held in the commons.  

 John Locke in his Two Treatises of Government contributes a more labor oriented view of property in which man only owns his body and labor and thus providing this output to land, which is in the commons, inserts value into the property and thus begets a platform for ownership. It was also a convenient way in which to strip ‘first ownership’ or ‘common’ rights from the Native populations already living on the lands of the Carolina’s, where Locke himself was toiling away at their constitution. (Armitage, 2004) “God gave the World to Men in Common; but … it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the Industrious and Rational, (and Labour was to be his Title to it;) not to the Fancy or Covetousness of the Quarrelsome and Contentious” (Locke, p. 34) It is here that the rights of the ‘more industrious’ European-centric agricultural system is written into our political landscape over both the aboriginal land uses and, in defiance of the French, culling the pelts of wild animals through poaching. (Armitage, 2004)  

The assumed patron saint of the French Revolution, Jean-Jacques Rousseau wrote “the first man, having enclosed a piece of ground, besought himself of saying this is mine and found people simple enough to believe him” and then called that man an “imposter”. (Qvortrup, p. 36) However, falling in line with Locke’s labor theory and value, Rousseau continues the line of thinking that property requires labor to give it both value and possession. He writes “…the right of property is the most sacred of all rights of citizenship, and even more important in some respects than liberty itself because it affects the preservation of life” connecting the importance of the government, citizenship, and property. (Rousseau, p. 363) Rousseau balances on the line between the radical French revolutionaries and his beliefs in liberalism by giving the nod to the gluttony of the monarchy and then assimilating the pieces of monarchal private property just broadening it to the population. (Qvortrup, 2003)  

The United States government is both influenced by and coddled together from the philosophies of the 17th century. Most of these contract theories and beliefs of the nature of property come from a philosophy that human labor provides value to land that it does not have before. It is this labor, the property of man, that creates property within the commonwealth of the government. If this is the case, we should see the acts of our political and judicial systems leaning toward providing access, legislation, and weight in the process to those who seek to convert natural land or ‘unused’ land to those who wish to convert it to value. In truth, this is exactly what we see in the process.  

The Biocultural Effects of Racism and the loss of Human Agency  

In the realm of Environmental Justice, it is important to define what has caused the injustice or excessive burdens of those people who seek a voice in the system. While it could be distilled to an economic disadvantage where economic elites, either private or corporate, yield a disproportionate amount of power within the political and judicial systems of the United States; this pathway fails to place importance on the causes of these economic disadvantages. The historical effects of racism, colonialism, anti-immigration sentiment, sexism, and other social-political constructs aimed at creating a second-class citizenry while defining the first-class individual and culture cannot be disregarded in this process. In truth, the effects of these constructs themselves create a pollution that cannot be measured by water quality or cleaned by land remediation.  

The effects of discrimination are not limited to the measurements of economic, political, and social access but instead filters into the human story and thus into human health. It is the systemic disadvantage that removes individual human agency. Human agency is the ability to a person to feel the freedom to make individual choices effecting their life. (Frost & Hoggett, p. 439) The importance of human agency in the environmental justice movement, like many sociopolitical attempts to right unjust aspects of government, is often lost among the hard science of environmentalism and the rigid judicial system.   

Pierre Bourdieu, French sociologist and anthropologist, defined social misery not as the economic disadvantage of distribution but as the holistic lived experience that includes feelings like anger, humiliation, and despair, that accompany the effects of a racialized system. (Frost & Hoggett, p. 439) It is the importance of the lived experience that can be quantified as those within the realm of human suffering within the greater economic system of advantage and disadvantage. Human agency does not start and end with the individual, but acts within a collective, like unions mobilizing for worker rights or communities working together to define what is acceptable in their environment.   

There is plenty of research, like The Hidden Injuries of Class, (Sennett & Cobb, 1972) where white working-class men were constantly withheld recognition, and Social Theory: Psychoanalysis and Racism, (Clarke, 2003) where social definitions of ‘blackness’ effects the inner definition of the self, that study the pre-effects of discrimination on the psychological ‘self’. However, for this paper it is the coping mechanisms after the fact that leads to health-related effects that are quantifiable and thus shapes the entire picture of life within environmental injustice.   

In Cockerham’s ‘Whitehall Studies’ they looked at one work environment but different levels of worker status and found that those in senior administration roles had much better rates of health than those of clerical and junior staff and concluded that ‘the power of class’ created the health disparity. It is the lack of social stressors on self-esteem, status, and the ability to self-direct at work and control one’s environment that increases health on the way up the work place ladder and declines at the bottom most rungs. (Cockerham, 2013) It is the human agency in our lives that provide a baseline measure of holistic health and not the social, political, environmental, or economic factors acting on us. In short, as much as discrimination effects our psychology, agency effects our health. (Frost & Hoggett, p. 455)  

In regards to racial discrimination, the landmark study on allostatic load and birth outcomes of African American women as seen in the documentary Unnatural Causes: When the  

Bough Breaks (Strain, MacLowry, & Strange, 2008) shows that economic status and class does not negate the effects of racism on health outcomes. The research shows that daily challenges of minority women like visibility at work, microaggressions in day to day activities, and loss of control due to diminished social status effect cortisol loads over extended lengths of time and equate to stress on health. (Edwards, Cole, & Knight, 1993) This stress and increased cortisol levels, have led to low birth weights in African American women, even those who live in higher economic classes. Moreover, when compared to African women, these cortisol levels and low birth weights are not seen at the levels in the United States. (Strain, MacLowry, & Strange, 2008) (Edwards, Cole, & Knight, 1993)  

The results of racism and the disadvantaging of certain populations leads to environmental injustice and thus, the system designed to address the concerns of the citizens in those community should provide agency. In practice, the judicial system acts to add to human suffering by allowing cases to linger, eternally, in a state of uncertainty. Without control and the ability to act on one’s own behalf, the basis of all human agency, these communities suffering begins with ecological destruction but ends with an endless cycle of litigation and corporate shell games.   

Case Studies  

 In understanding how our government’s historical roots came from 17th century philosophies combined with the struggles in human agency among the communities sharing undue burdens, we will look at several case studies as they have worked through the system. It is in the application of the law and not in the legislation that works for or against the citizenry of this country. In a just system, the redress of damage and the importance of agency in controlling the use of local resources should show equal footing with those that seek to avoid recompense or strip resources. The system should be efficient and provide timely assistance in mediating environmental issues within the legal framework. If there is anywhere in our government that provides justice, it should be in our legal system and yet, while there are successes for some, the frustratingly slow process, and the ability of those with economic and political capital to game the system puts disadvantaged communities at greater risk than just by pollution alone.   

Quechan Indian Nation

Indian Pass in south eastern California is home to the Quechan Indian Nation and parts are owned by the federal government and managed by the Bureau of Land Management (BLM). In 1987, Glamis Gold Ltd., began purchasing gold mining claims in the area where the Quechan people have been living and sustaining their culture for 10,000 years. Gold mining requires digging up tons of ore and once ground into a fine powder, it is heaped into open-air leach pads where it is sprayed with dilute cyanide. The liquid leaches the gold out of the earth and into a pond where it is reclaimed and the gold recovered. The Quechan Nation objected to this use of the lands on both environmental concerns as well as potential destruction of their cultural sites. (Zarsky, McLeod, & Dzelzitis, pp. 20-21)   

For twenty-two years, Glamis attempted to hurdle a series of oppositions to its plans that included the California Desert Protection Act, tribal legal filings, and community push-back. During this time, BLM spent six years reviewing the project, providing local hearings and several environmental and archaeological reports and despite the 1999 Advisory Council on Historic Preservation’s recommendation that the Department of the Interior take whatever measures to deny the project Glamis remained unmoved off its standing that their claims were grandfathered in before any legislative restrictions. In January 2001, Secretary of Interior Bruce Babbit denied the proposal under an 1872 Mining Law and that was upheld in court two months later. In November of 2001, George W. Bush’s newly appointed interior secretary Gail Norton, rescinded Babbitt’s denial allowing for reconsideration of the project. In 2002, the State of California passed two bills regarding the Quechan-Glamis issue, one for historical preservation and the other mandating backfill and environmental mitigation measures to mining sites. The historical preservation act was vetoed by the governor but the mining act remained. Glamis filed a lawsuit asking for $68 million under NAFTA they were being targeted by the state and thus failed to be treated fairly under the charter’s rules. In 2007, NAFTA tribunal took up the case and two years later rendered a verdict against Glamis. (Glamis Gold Ltd. v The United States of America, 2008) (Zarsky, McLeod, & Dzelzitis, pp. 23-25)  

The Glamis-Indian Pass case study is rare in that it provided a final resolution after twenty-two years of legal and legislative back and forth. In those years, the Quechen Indian Nation had no ability to make future plans, living under the stress of probably destruction of over 55 cultural and archaeological sites, and the threat of losing already endangered desert species. The Native American community itself had to fund their case in the legal system, taking important money that could be spent on reservation needs and poured it into protecting itself from cultural collapse. (Strain, MacLowry, & Strange, 2008)  

Zuni Nation

For 1500 years the Zuni Nation and other tribes have made pilgrimages to the Zuni Salt Lake, also known as ‘The Sanctuary’, to visit with their dead and procure salt for religious ceremonies. In 1985, BLM granted permission to the Salt River Project (SRP) utility to explore for coal within the site. In 1996, SRP was granted permit to build Fence Lake Coal Mine 11 miles from the Zuni Salt Lake where it would use water from an aquifer that feeds the lake itself. The Zuni Nation began opposition to SRP from day one, funneling millions of dollars perusing all avenues to stop the project. They pushed for a hydrological assessment that eventually showed that use of the aquifer by SRP would impact the lake. Due to community backlash, congressional pushback, and environmental groups becoming involved, the approval sat until October of 2001 when they were denied their permit by the Department of the Interior. (Zarsky, McLeod, & Dzelzitis, pp. 46-48)   

In May of 2002, under the direction of the Bush administration’s Secretary of the Interior Gale Norton, the denial was reversed under six conditions to be handled by SRP and BLM and included water monitoring, to exclude certain water sources, and consult with the Zuni Nation on protection of The Sanctuary. The community of supporters and the Zuni Nation increased its visibility in the media while also legally challenging New Mexico’s approval of the project. Public pressure to stop the project reached a fever pitch in 2003 when SRP announced that it was dropping the plans for the mine and relinquish all permits due to an admission that the project was not financially attractive anymore thus ending the twenty-year dispute. Two months later, BLM announced an auction to the rights to explore for oil and gas on 125,000 acres east of The Sanctuary beginning the process for the Zuni people all over again. (Zarsky, McLeod, & Dzelzitis, pp. 48-51)  

 he never-ending cycle of siting permits, studies, legal motions, tribunals, activism, and funding for defense of their land is another example of a lack of attention to the human agency in these communities. The fact that, depending on which presidential administration is in office, means completely different approaches by both the government, the corporations, and by the burdened communities in their fights to claim rights is frustratingly unjust. In both the Zuni Salt Lake and the Indian Pass case studies we can see how the importance of creating value from underutilized land appears to take precedent over common use, cultural primogeniture, or environmental impact which again harkens to the Locke’s labor theory on property and value. (Locke, 1988) The justice in the system tends to look more like soldiering public support and financial backing over legislation and judicial review.   

Chester, Pennsylvania

In 1992 citizens of Chester, Pennsylvania gathered together and formed the Chester Residents Concerned for Quality Living to push back against the use of most of its river front land for waste processing in many forms, an oil refinery, and several industrial polluters. In 1993, The Public Interest Law Center took control of legal actions and filed one of many actions against the company Thermal Pure which was operating a facility that processed infectious waste. In 1995 the Commonwealth of Pennsylvania court revoked Thermal Pure’s permit forcing the plant to close, but a higher court overturned that ruling using an obscure “Kings Bench” rule, reauthorizing Thermal Pure’s operation. Thermal pure continued to push through 300 tons of infectious waste daily until 1999 when the plant closed. (TPILC, 2016)   

Chester residents continued by suing Pennsylvania’s EPA under the Civil Rights Act Title VI but failed to meet the two-pronged test in which they had to show intent of the state to discriminate while they did provide ample evidence that Chester’s environmental risks were ‘unacceptably high’. (CRCQL v Sief, 1997) The CRCQL sued Soil Remediation Services (SRS), a company that imported toxic soil to be incinerated, but before it went to court, SRS lost its PADEP air permit when it expired. Within a year, a proposed pet crematory permit was withdrawn after much public education and pushback from residents and Cherokee Biotechnology planned plant, which sought to use the site to perform bioremediation on contaminated soil, was not given a permit by the PADEP. (Sicotte, pp. 134-136) From its origination to the current day, the citizens of Chester have continued to fight inplace polluters as well as fend off dozens of new companies seeking to pollute within the town. They have little funding and even less political capital to arm themselves but with the help of environmental lawyers and researchers from the Environmental Background Center, they have managed to get several permits revoked, stricter air and water pollution requirements on existing facilities, and force DECLORA, a sewage treatment plant, to provide $200,000 to the township for lead abatement program. However, even up until 2014 waste incinerators continued to work in Chester, including Covanta, a company contracted with New York City that has burned over 2.7 million tons of trash between 2004-2013. (Sicotte, pp. 134-136)  

The question must be asked, what would Chester look like today if it had not become a waste magnet in 1992? The residents and their taxes supposedly paid to schools, police, and local services have become just a fund for the municipality to fight off the tsunami of waste facilities that seek to set up shop on its shores. For twenty-five years, the township could have been funding programs to clean up their river front and entice retailers to move into the area, residents could have seen property values rise to the levels of the towns surrounding, children could have been more worried about tests at school than tests for lead poisoning, however they have had to shoulder disproportionate burdens from cities like Philadelphia and New York City without any recompense for their troubles. Most importantly, though, a generation of people within that town have had no ability to predict the future for themselves and has had no absolute say in outside corporations using their town’s resources.  

Year after year, the state government has allowed Chester to be the garbage magnet of the Philadelphia area, forcing the mostly minority residents to shoulder a disproportionate amount of economic and environmental burdens. Where is their ability to make choices for themselves and their community? Chester, out of all the case studies, provides ample evidence that the judicial system is tilted in favor of the land use over the land conservation. It also provides a twenty-five-year timeline where community action and legal filings were near constant and reminding residents that they must fight tooth and nail to even get a place at the judicial or political table, let alone win battles on the merits.   

Conclusion  

To look at environmental justice from just the perspective of siting, remediation, and the effects of pollution and ecological damage does not consider the human aspect of the story. The act of being able to cope within the framework of a system that creates a class structure, either by race, ethnicity, or economic status, requires the need for human agency. Without the ability to act and make choices, research shows, causes measurable changes in our health through biological stress mechanisms. The act of racism itself, has burdened the health of groups just through the stresses of living in a place that systemically removes one’s ability choose for oneself.   

The legal framework for those seeking to address environmental concerns is built on a philosophical framework that weighs land use over land conservation and is based in the 17th century rationalization to abscond with the lands of millions of native people in the Americas. It is this system which communities like Chester, The Zuni Nation, and Quechan Nation have attempted to employ their coping mechanism of human agency to prevent further harm to their people and land. In their attempts to stand with equal footing among those who want to utilize their local resources, these groups have seen first-hand how the system can be gamed with financial and legal force as well as the time delays that have held them in captivity for over two decades. The lesson for those who shoulder the burdens of environmental discrimination is that it takes absolutely no chemical release to do bodily harm to a community; all one has to do is create a system that appears to provide justice and instead provide a revolving door of frustrations and denials.   

Works Cited  

Armitage, D. (2004). “John Locke, Carolina, and the ‘Two Treatises of Government.’”. Political Theory, 32(5), pp 602-627. Retrieved from http://www.jstor.org/stable/4148117  

Bunce, R. (2013). Thomas Hobbes (Major Conservative and Libertarian Thinkers). London: Bloomsbury Publishing.  

Clarke, S. (2003). Social Theory: Psychoanalysis and Racism. Basingstroke.  

Cockerham, W. C. (2013). Social Causes of Health and Disease. Oxford: Polity Press.  

CRCQL v Sief, 97-1125 (UNITED STATES COURT OF APPEALS December 1997).  

Edwards, C., Cole, O., & Knight, E. J. (1993). Psychosocial Stress as a Possible Mediator of Maternal Immune-Response and Infant Low-Birth-Weight in African-American Women is Racism a Factor? Faseb Journal, 7(3).  

Frost, L., & Hoggett, P. (2008, November). Human agency and social suffering. Critical Social Policy, 28(4), 438-460.  

Glamis Gold Ltd. v The United States of America (UNCITRAL June 08, 2008).  

Hobbes, T. (1651). Leviathan, or, The matter, forme, and power of a common wealth, ecclesiasticall and civil. London: Printed for Andrew Crooke, 1651.  

Locke, J. (1988). Two Treatises of Government. (P. Laslett, Ed.) Cambridge: Cambridge University Press.  

Qvortrup, M. (2003). The political philosophy of Jean-Jacques Rousseau: The impossibility of reason. Manchester: Manchester University Press.  

Rousseau, J.-J. (1959). Oeuvres completes (Pleiade Edition ed., Vol. Vol. III). (B. G. Raymond, Ed.)  

Sennett, R., & Cobb, J. (1972). The hidden injuries of class (1st ed. ed.). New York, New York: Knopf.  

Sicotte, D. (2016). From Workshop to Waste Magnet: Environmental Inequality in the Philadelphia Region. Rutgers University Press. doi:0813574226, 9780813574226  

Strain, T. H., MacLowry, R., & Strange, E. (2008). Unnatural Causes: When the Bough Breaks. PBS.  

TPILC. (2016). Environmental Racism in Chester. Retrieved from The Public Interest Law Center: http://www.pilcop.org/chester-2/  

Zarsky, L., McLeod, C., & Dzelzitis, R. (2006). Is Nothing Sacred? La Honda: Sacred Land Film Project. Retrieved from http://www.sacredland.org/  

Additional Resources  

Bernhard, M. C., Evans, M. B., Kent, S. T., Johnson, E., Threadgill, S. L., Tyson, S., … Gohlke, J. M. (2013). Identifying environmental health priorities in underserved populations: a study of rural versus urban communities. Public Health, 127(11), 994–1004. https://doi.org/10.1016/j.puhe.2013.08.005  

 Bonneville Power Administration: History. (n.d.). Retrieved March 3, 2017, from http://www.nwcouncil.org/history/bpahistory/  

 Cohen, B. R. (2005). Escaping the False Binary of Nature and Culture Through Connection:   

Richard White’s The Organic Machine: The Remaking of the Columbia River. Organization & Environment, 18(4), 445–457. https://doi.org/10.1177/1086026605281188  

Oregonian/OregonLive, K. H. | T. (n.d.). Latest fishing clash between Oregon, Native American tribes is dispute dismissed. Retrieved March 3, 2017, from http://www.oregonlive.com/clackamascounty/index.ssf/2014/08/latest_clash_in_tribestate_fis.html  

Oregonian/OregonLive, M. H. | T. (n.d.). Columbia River tribes one step away from housing at Bonneville Dam after U.S. Senate approves bill. Retrieved March 3, 2017, from http://www.oregonlive.com/politics/index.ssf/2016/12/bill_to_build_tribal_housing_f.html  

Tsosie, R. A. (1996). Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge (SSRN Scholarly Paper No. ID 1401579). Rochester, NY: Social Science Research Network. Retrieved from https://papers.ssrn.com/abstract=1401579  

Waples, R. S., Zabel, R. W., Scheuerell, M. D., & Sanderson, B. L. (2008). Evolutionary responses by native species to major anthropogenic changes to their ecosystems: Pacific salmon in the Columbia River hydropower system. Molecular Ecology, 17(1), 84–96. https://doi.org/10.1111/j.1365294X.2007.03510.x