Environmental Justice, Torts and Causation

Abstract

Study after study affirms that low-income, minority communities bear a disproportionate burden of pollution. The Environmental Protection Agency (EPA) has acknowledged that polluting industries and hazardous waste dumps are most often located in predominantly poor minority communities.

Although greater awareness and study are welcome changes, the resulting intellectual ferment has left a good deal of confusion regarding the subject and boundaries of this phenomenon. Further clarification may require much more study and practice. Certainly, the implications of the environmental justice problem are largely unexplored. Environmental racism is about more than the siting of industrial facilities, and the disposal of hazardous wastes, in or near minority or poor communities, and the disproportionate burden carried by those communities in terms of adverse health and environmental impacts. In most cases, facilities will not be moved. This means that residents of these toxic communities will continue to bear a greater burden of the health, economic and other quality of life risks and burdens associated with pollution.

Environmental justice then requires an ability to vindicate personal injury and property damage claims, especially those arising from the proximity of minority communities to hazardous facilities. Claims for cancer, neurological problems, medical monitoring, cancerphobia, environmental restoration, and nuisance are to be expected. Although private law actions in conjunction with political action can be highly effective in this regard, serious hurdles exist to the full vindication of rights on behalf of minority communities. For our purposes here, I want to address these special private law hurdles confronted by people of color.