April 21, 2021

Earth Day 2021: Environmental Justice is a Human Rights Struggle

Posted by Lavran Johnson JD'22

The United States has an environmental human rights problem. Across the country, communities of color and lower socioeconomic status are disproportionately located close to chemical processing plants, power plants, and other industrial facilities and shoulder the burden of domestic environmental contamination. Air and water quality standards frequently fail to protect these communities, leading to detrimental health impacts and continued contamination. Although the situation is improving, state and federal agencies have historically failed to reduce the cumulative burdens on these communities. Most of our environmental laws provide protective regimes based on available technology and economic feasibility. Although these regimes place limits on pollution, they reflect a presumption that industries have a general right to pollute. Industry’s right to pollute is constrained by environmental law; but we need a shift away from industrial rights and towards a human right to a clean environment.

After years working as an outdoor educator, I came to law school to focus on environmental law, committed to finding ways through policy and litigation to better protect the environments that had enriched my life. It was in the classroom — and not outside — where I started to build the connections that drive my current work. My torts class, where we studied Rob Bilott’s prosecution of DuPont for chemical pollution, helped to shift my focus towards work that would protect both the environment and the individual people who rely on it. Later, International Human Rights Clinic Co-Director Tyler Giannini exposed me to some of the many ways that environmental exploitation and human exploitation are entangled, but it was working over the summer on an administrative complaint to the Environmental Protection Agency that really crystallized my understanding: environmental justice is fundamentally a human rights issue. All people should be protected from pollution that poses a serious and permanent risk to their health, and historical deprivation and prejudice should not be allowed to undermine that basic protection.

This spring, I entered the International Human Rights Clinic hopeful that I could gain a better grasp of how rights are understood and leveraged, but unsure whether I would be able to do environmental work. I’ve been very lucky to work with Bonnie Docherty and three excellent team members to prepare recommendations for the First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW). Bonnie, who is the Associate Director of Armed Conflict and Civilian Protection, has worked for decades to highlight the detrimental effects of weapons on both humans and the environment. The TPNW, which Bonnie and previous clinical students helped to shape, reconceptualizes nuclear disarmament by shifting from a tactical focus—one in which states play their nuclear arsenals off each other to maintain geopolitical order—to a humanitarian focus—one in which states must address the ongoing human suffering caused by the use and testing of nuclear weapons. The TPNW, which requires total disarmament, also creates obligations that respond to the legacy of nuclear weapons use and testing through victim assistance and environmental remediation. In places like the Marshall Islands, where many still suffer the effects of the nuclear testing that happens over 60 years ago, these obligations are critical.

In doing so, the TPNW tackles the sort of work to which I’m committed: centering people’s rights in environmental protection and respect. For example, the TPNW requires governments to remediate the environment in areas where nuclear weapons have been used or tested. This environmental remediation obligation is written in broad terms, giving it great potential but also leaving serious interpretive and diplomatic work to be done. Working to flesh out what the obligation entails has given me a chance to contemplate how the language of environmental human rights can reframe the need to address environmental harms. Cleaning up the environment can be a way to restore justice and autonomy to vulnerable communities suffering from pollution, rather than a resolution of a mere political or economic issue. Radiologically contaminated sites are frequently located close to small, often Indigenous, communities who may, for example, rely on the site for forage or farming, or value it as a traditional meeting place or religious site. Protecting those communities from radiological exposure is important, but it is also important to provide a process that includes communities and allows them to describe their historical relationship to contaminated sites and their needs moving forward. This, in turn, rightly vests communities with power to define and vindicate their own environmental rights. Such a process can provide environmental justice in communities across the United States as well: a process that recognizes environmental protection as more important than industry or geopolitics and a process that I hope to contribute to throughout my career as a lawyer. Environmental protection is a human right; communities should be both protected from environmental impacts and integral to the process of deciding what sorts of protection will best serve their needs.

Lavran Johnson JD’22 is a student in the International Human Rights Clinic at Harvard Law School.

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