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"Mutable Principles: Environmental Justice, Hazardous Waste Exportation & U.S. Foreign Policy" by Dahlia Sattar

Mutable Principles: Environmental Justice, Hazardous Waste Exportation & U.S. Foreign Policy
by Dahlia Sattar

Between September 1987 and May 1988, five ships loaded with hazardous waste docked in the port of The Republic of Benin. See James Brooke, Waste Dumpers Turning to West Africa, N.Y. TIMES, July 17, 1988. This small West African nation was accustomed to only three or four ships of cargo per year at the time, but became one of many developing nations "ideal," by developed nations' standards, for hazardous waste exportation. Id. The Beninese government, desperate to build the national economy, ignored the long-term consequences of storing untreated hazardous waste, while the exporters saw exponential monetary benefits of exportation. Id. The workers hired to unload the barrels were paid around $2.50 a day; they were unaware of the contents of the barrels and far from knowledgeable about the potential health risks involved. Id. The United States Environmental Protection Agency (EPA) visited the site and acknowledged the hazards and risks alongside other developed nations. Id. A great deal of debate ensued over such incidents of the time; a debate over hazardous waste disposal and the environmental injustices that result both domestically and internationally continues today.

Last year, the White House held its first Forum on Environmental Justice seeking to promote a strong Federal protection from environmental and health hazards for all Americans. Press Release, White House, Environmental Justice Forum, Dec. 16, 2010, http://www.doi.gov/news/pressreleases/Obama-Administration-Convenes-Environmental-Leaders-at-Historic-White-House-Environmental-Justice-Forum-Featuring-Five-Cabinet-Secretaries.cfm. It has been nearly two decades since President Clinton first issued an Executive Order on Environmental Justice requiring all federal agencies to "make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations in the United States." See Executive Order No 12,898, 59 Fed. Reg. 7629 (1994). Environmental Justice "demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias. See The Principles of Environmental Justice, Principle 2, The People of Color Environmental Leadership Summit (Oct. 24-27, 1991, Washington D.C.), available at http://www.ejnet.org/ej/principles.pdf. This is nearly three decades after the environmental justice community establishing organized principles.

At the Forum, Attorney General Holder declared that the Environmental Justice Initiative would address the link between race, economics, employment and environmental sustainability by integrating environmental justice goals in strategic planning. Ilze Sprudz Hirsh, White House Holds First Ever Environmental Justice Forum, THE SHRIVER BRIEF, Dec. 22, 2010, http://www.theshriverbrief.org/2010/12/articles/climate-change/white-house-holds-first-ever-environmental-justice-forum/. Environmental justice concerns, however, transcend borders. They are now a global issue. Environmental organizations worldwide recognize this; exporting hazardous wastes to these nations while developed nations profit from externalizing the costs of pollution, is arguably analogous to disproportionate burdens of pollution placed on minorities and less affluent groups domestically. See Michael J. Kelly, Overcoming Obstacles to the Effective Implementation of International Environmental Agreement, 9 GEO. INTL ENVTL. L. REV. 447, 450 n.19 (1997); Hugh J. Marbug, Note, Hazardous Waste Exportation: The Global Manifestation of Environmental Racism, 28 VAND. J. TRANSNAT'L L. 251, 253 (1995). Environmental justice principles are emphasized in the national agenda, but little research has been conducted as to whether they have informed international forums.

The fact that hazardous waste sites are consistently located among minority and low-income communities throughout the U.S. over the last several decades has not gone ignored. See, e.g., Paul Mohai & Bunyan Bryan, Race, Poverty, and the Environment, 6, 18, EPA J. (Mar./Apr. 1992). Faced by economic and societal changes domestically, an international practice of hazardous waste exportation became a means of forgoing domestic regulation of the industry in the U.S. See RUCHI ANAND, INTERNATIONAL ENVIRONMENTAL JUSTICE: A NORTH-SOUTH DIMENSION 9, 82 (2004). The inherent danger of disposing hazardous waste even when permitted domestically is not outside the purview of the U.S. See Hugh J. Marbug, Note, Hazardous Waste Exportation: The Global Manifestation of Environmental Racism, 28 VAND. J. TRANSNAT'L L. 251 (1995); see Environmental Justice and Proposed Legislation: Hearings before the Subcomm. On Transportation and Hazardous Materials of the House Comm. On Energy and Commerce, FED. NEWS SERV., Nov. 18, 1993 (testimony of Sharon Carr Harrington). Furthermore, the distributive differential of costs and benefits plays an important role in hazardous waste exportation. Developing nations often do not have the technology nor the social, economic and political structures to handle these disposals nor do they have the same environmental prioritization schedule as industrialized nations. See Anand, supra, at 71; see Mark A. Drumbl, Northern Economic Obligation, Southern Moral Entitlement, and International Environmental Governance, 27 COLUM. J. ENVTL. L. 363, 364 (2002). Developing nations are often more concerned with immediate local environmental matters such as safe drinking water or overpopulation as opposed to health risks of hazardous waste imports. Moreover, the costs for attaining the standards proposed in many multilateral agreements appear as a complete economic hurdle. See Drumbl, supra, at 363.

Eventually, industry expansion of chemical usage within consumer products prompted research on the health risks imposed. See John W. Teets, Dennis P. Reis & Danny G. Worrell, RCRA: Resource Conservation and Recovery Act, 3 AMERICAN BAR ASS'N, SECTION OF ENVIRONMENT. These concerns led to the creation of the U.S. Resource Conservation and Recovery Act (RCRA) regulating the appropriate disposal of solid and hazardous waste. Id. at 4. The goal of restoration, rather than simply preservation, influenced the creation of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Id. This presented a clearer picture of just how costly, both economically and socially, efficient and appropriate hazardous waste disposal is. Exportation of hazardous waste soon presented itself as a viable option. See, e.g., F. James Hardley, Hazardous Waste Exports: A Leak in the System of International Legal Controls, 19 ENVTL. L. REP. 10, 171 (1989).

The cost of hazardous waste disposal in the U.S. has risen exponentially over the last several decades, increasing from $10 per metric ton in the 1970s to $2,500 per metric ton by the 1990s. See Andrew Porterfield & David Weir, The Export of U.S. Toxic Wastes, 245 THE NATION 325 (1987). The estimated cost of waste disposal in Africa in the early 1990s was only around $40 per metric ton. John B. Ovink, Transboundary Shipments to Toxic Waste: The Basel and Bamako Conventions: Do Third World Countries Have Choice? DICK. J. INTL. L. 281, 295 (1995); see also Anand, supra, at 65. These numbers coupled with the costs imposed by CERCLA liability, from monetary costs of cleanup to the social costs of one's reputation in the business sector, drove industry toward other options. See Teets et al., supra, at 4. One such opportunity is hazardous waste exportation. The inequities proposed by this economic incentivized option sparked international concern, which ultimately led to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (hereinafter, the Basel Convention. See Zada Lipman, A Dirty Dilemma: The Hazardous Waste Trade, HARVARD INT'L REV., 1, 4, May 6, 2006, http://hir.harvard.edu/environment/a-dirty-dilemma. It effectively imposes a waste trade ban from the Organization for Economic Cooperation and Development (OECD) to non-OECD countries. THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL, UNEP United Nations Environment Programme (1989), available at http://basel.int/ratif/convention.htm. The Convention became binding in 1992, and while 146 countries have ratified it, the U.S. still has not. Id. The Convention focuses on prior informed consent to reach its goals. Id. Under the Convention it is illegal to transport hazardous waste without prior notification and documentation; essentially the recipient and transit countries must be informed of its movements. Id. at 25.

In this past decade, the Convention's focus has been building upon its framework by not only implementing and enforcing the treaty, but through further minimization of actual hazardous waste generation. Id. While the treaty recognizes that a long-term solution to these problems is reduction in generation, it also identifies the problems with its exportation, one of which is that of informed consent. Id. Developing nations may be economically incentivized to import hazardous waste, but a lack of knowledge, technology and actual infrastructure to properly dispose of this waste detracts from such consent, only further emphasizing the burdens. See Mary Critharis, Note, Third World Nations Are Down in the Dumps: The Exportation of Hazardous Waste, 16 BROOK. J. INT'L L. 311, 312 (1990). Thus, the Convention tries to resolve this problem by requiring such informed consent and contemplates reducing the burden through its focus on "environmentally sound management" (ESM). See Basel UNEP, supra. ESM requires an "integrated life-cycle approach," which acknowledges protection of both the environment and human health by regulating waste from storage to final disposal, including preliminary aspects of decision-making. Id.

Environmental justice addresses many relevant questions concerning "differential impacts on diverse populations during decision-making." Anand, supra, at 14; see CHRISTOPHER H. FOREMAN, THE PROMISE AND PERIL OF ENVIRONMENTAL JUSTICE, 126-127 (1998). The movement concerns both procedural justice (concerning the dynamics of the inequitable bargaining powers of people and communities with different level of economic development) and distributive justice (concerning the inequitable distribution of social, economic, and political burdens on people and communities with different levels of development), emphasizing that these injustices are not deemed exclusively detrimental to the environment as a whole, whereby the impact is witnessed by all proportionally. See Anand, supra, at 14. As Ruchi Anand expresses, the contributions of environmental justice and its overall value are not only descriptive, but are influential on policy-oriented prescriptions. Id. at 13. The guidance on environmental justice within the National Environmental Policy Act (NEPA) offers justice strategies, which reflect upon the environmental justice framework. NEPA specifically prescribes that each agency identify and address "disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." Executive Order 12898 and Presidential Memorandum. Environmental Justice: Guidance Under the National Environmental Policy Act (Dec. 10, 1997). These strategies must involve all stakeholders in environmental decision-making, such as assuring public access to environmental information and training to help these communities reduce exposure to environmental health and safety hazards. Anand, supra, at 13-14.

Domestic legislation is only one side of the battle. The U.S. acknowledges the obstacles of implementing the Strategic Plan of the Basel Convention and incorporation of Environmental Justice principles. See U.S. Comments on the Basel Convention's Current Strategic Plan and on the Development of a New Strategic Framework 1, USEPA, http://www.epa.gov/oia/. The government emphasized that the Secretariat and the Basel Convention Regional Centres (BCRSs) must continue working with national governments in raising awareness of the human health and environmental risks of methods of hazardous waste disposal among local communities. See U.S. Comments on the Basel Convention's Current Strategic Plan and on the Development of a New Strategic Framework 1, 2 USEPA, http://www.epa.gov/oia/. This suggests support of equal participation, a core of the environmental justice framework, by ensuring public awareness through participation. See The Principles of Environmental Justice, Principle 7, The People of Color Environmental Leadership Summit (Oct. 24-27, 1991, Washington ,D.C.). The U.S. example, however, suggests that as the scarcity of natural resources continues to increase, these capacity-building efforts must focus more on the recycling market and the growing economic incentives. Comments Strategic Plan, supra, at 2. The U.S. specifically notes that the Convention should provide incentives for environmentally sound reuse, refurbishment, re-manufacturing, and recycling. The government promotes enhancing national capacities tackling illegal traffic in hazardous and other waste in order to support an environmentally sound recycling market. Id. This offers at least an effort by the U.S. to implement some environmental justice concepts of ensuring ESM, but based on strategies that appear to be most efficient by U.S. calculation. These strategies are particularly appealing to the U.S. as they both reflect environmental justice initiatives and can perhaps translate well to the international forum.

The government further emphasizes that the U.S. EPA promoted a recycler certification system domestically, which has potential on the international front. Id. This voluntary system certifies participants in conformity with the Responsible Recycler practices "to create a market mechanism that enables 'responsible' recyclers to differentiate themselves from the 'sham' recyclers." The focus of these programs is on protection of human health and the environment through "environmental management systems, 'third party' auditors and certifying bodies" in order to encourage adoption of ESM practices. The U.S. has its own methodology in terms of reaching this end result. The other element of this certification program is to serve as an alternative to the import/export ban of the Ban Amendment of the Basel Convention. See Comments Strategic Plan, supra, at 2.

The U.S. takes issue with the Ban Amendment, which essentially bans the export of all hazardous waste from developed to developing nations. See U.S. Comments on the Developments and Obstacles in the Implementation of the Basel Convention Strategic Plan, 3, available at http://archive.basel.int/stratplan/dev-obst/comments/us-e.pdf. While attempting to promote environmental justice concepts, the country hesitates incorporation of the elements that may be promoted by the Ban Amendment through recognition of developing nations' concerns and burdens as the less-affluent nations with lower bargaining power. The U.S. instead stresses that the Ban Amendment fails to recognize that a number of the countries that traditionally could not accept hazardous waste imports may now have the "technical capacity" for disposal and furthermore, that "recycling operations and waste management bring jobs." U.S. Comments on the Developments and Obstacles in the Implementation of the Basel Convention Strategic Plan, 3, available at http://archive.basel.int/stratplan/dev-obst/comments/us-e.pdf. Another U.S. approach is the certification of facilities as environmentally sound for a period of time. Id. at 4. The government notes that the Ban Amendment may not incorporate the environmental justice norms perceived of in the U.S. because it does not account for the changes in a nation's infrastructure that would enable it to become an importer. This, however, could be the U.S. manipulating domestic environmental justice principles in the international arena by accounting for market considerations that may otherwise be opposed to U.S. practices.

The U.S. hesitates in implementing a ban because it could be economically detrimental without securing the same environmental justice principles within the U.S. or even suggesting that these principles are not necessarily applicable in the international arena, as the sheer environment of international policy and law is different. Either way, the actions of the U.S. opposing the Ban Amendment and exporting to developing countries, without a clear understanding of whether these nations actually have the capability to dispose of it safely, suggests that U.S. efforts may be more of a political determination than an actual venture of enforcing domestic environmental justice principles across borders.

Dahlia Sattar is a 2012 graduate of Lewis and Clark Law School. She is pursuing a career in environmental and business law, having a Bachelor's of Science in business management and economics. After having worked with non-profit groups such as the NY/NJ Baykeeper, government interest with the Department of Environmental Quality of Oregon and private practice in various aspects of business law, she aspires to one-day bridge the gap between these interests, promoting a healthy discussion of environmental issues. She is an avid runner and traveler.

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This page contains a single entry from the blog posted on May 15, 2012 2:36 PM.

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