118 Pages Posted: 12 Aug 2007
One of the most important developments in environmental law over the last three decades has been the emergence of the environmental justice movement, a movement that has challenged the unequal distribution of undesirable land uses in poor and minority communities. The movement's claims for injustice are varied and interconnected - encompassing unfair treatment, unfair distribution, and the systemic history and patterns of inequality that have led to current disparities. While some have suggested that government action should address only those disparities caused by unfair treatment, Professor Kaswan argues that distributive inequalities deserve regulatory attention even if they were not caused by discriminatory treatment.
Most existing studies suggest that undesirable land uses are unequally distributed based upon race and class and, consequently, that we have distributive injustice. Some authors, however, have suggested that these disparities may not be unjust: the differences in distribution may be explained by communities' differing preferences for the land uses in question. Professor Kaswan argues that this argument embodies a competing vision of distributive justice, one she calls the "community preferences model." Under this model, the critical issue is not the physically equal division of allegedly undesirable land uses, but the extent to which communities are equally satisfied with surrounding land uses. Some advocates of this model have suggested that the market in land use distribution works, that communities are equally satisfied, and that government intervention to improve distributional outcomes is therefore unnecessary and possibly counterproductive.
Professor Kaswan argues that, even if one were to adopt the community preferences model of distributive justice, we nonetheless have a distributive justice problem. She reviews relevant aspects of the siting process - objective factors, political decisions, and the special role of public participation provisions - and concludes that the land use siting process does not serve to meet community preferences equally. While advocates of the community preferences model have argued that post-siting housing market dynamics could rectify disparities in preference satisfaction, since those who did not like new land uses could move away from them and those who do like land uses could move toward them, Professor Kaswan argues that the housing market is neither fluid nor equitable enough to overcome the disparities created in the land use siting process. Thus, she argues that the "market" does not achieve equity, and that government efforts to address distributive injustice are appropriate regardless of one's model of distributive justice.
Keywords: distributive justice, environmental justice, neoclassical economics, land use, facility siting
JEL Classification: D30, D63, K00, K32, O18, Q2
Suggested Citation: Suggested Citation
Kaswan, Alice, Distributive Justice and the Environment. North Carolina Law Review, Vol. 81, No. 3, 2003. Available at SSRN: https://ssrn.com/abstract=1006268