Pedersen Environmental Principles and Enviro Justice

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Environmental Principles andEnvironmental Justice

Ole W. Pedersen*

Keywords: Environmental justice, precautionary principle, polluter pays principle, sustainable development.

Abstract: This article offers an analysis of the compatibility between the emerging concept of environmental justice and a number of more well established environmental principles. These include the precautionary principle, the polluter pays principle and sustainable development. The article argues that, for all three principles, a comparison with environmental justice gives rise to confl icts as well as conformity. The main reason for this is the ambiguity and inconsistency of environmental justice and the three principles.

1. INTRODUCTIONOne characteristic of environmental law and policy is the central role that so-called envi-ronmental principles play in the shaping of decisions, formulation of policies and govern-ance in general. These principles are often hard to defi ne and their application frequently varies. Such principles include the precautionary principle, the principle of prevention, the polluter pays principle and sustainable development. These principles form part of both international and domestic environmental law and policy, albeit to varying degrees. For instance, some argue for a right to sustainable development and others assert that the principles of prevention and precaution form part of customary international law. Taken together, these principles have, over the last 30 years, become an essential part of the envi-ronmental lawyer’s vocabulary. More recently, the concept of environmental justice has emerged as a basis for questioning established norms of environmental law and policy in general and, in some instances, the environmental principles in particular.

This paper aims to analyse the congruence between the well-established environmental law principles of precaution, prevention, polluter pays and sustainable development, and environmental justice. While much can be said (and much has been said) about the prin-ciples, the aim of this paper is not to provide a fully fl edged analysis of the principles. Instead, this paper aims to start a debate on the role of environmental justice as a concept and its compatibility with the more well-established norms of environmental policy and law. The reason for this is two-fold. First, in light of the emergence of environmental jus-tice as a concept in the UK and Europe, it is important to attempt to defi ne the bounda-ries and meaning of the concept. Secondly, while environmental justice and its emphasis on fair distribution and processes on the face of it seems benign, it is important to subject the concept to critical scrutiny, given the possible implications of its claims of injustice. An additional point is that, given the pervasiveness of the well-established environmental

* Newcastle University Law School ([email protected]). The author wishes to acknowledge the helpful comments received on earlier versions of this paper by Donald McGillivray, John Paterson, Aylwin Pillai, Chris Rodgers and Anne-Michelle Slater, as well as the two anonymous referees of Environmental Law Review. All mistakes and omissions remain those of the author.

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principles, it equally becomes relevant to question these principles in the name of justice in an attempt to further debate about their longevity.

The outline of the paper is as follows. A brief introduction to the concept of environmen-tal justice is provided in Part 2. In Part 3, the paper analyses the relationship between environmental justice and the precautionary principle. This is followed by an analysis of the compatibility between the principle of prevention and environmental justice in Part 4. In Part 5, similarities and differences between the polluter pays principle and envi-ronmental justice are considered. Part 6 assesses the relationship between sustainable development and environmental justice.

2. ENVIRONMENTAL JUSTICEThe foundations of environmental justice were laid following the civil rights struggles of the United States when African-American communities in the 1970s and 1980s came to perceive the siting of waste facilities and other environmental harms as unjust.1 Early examples of environmental injustice include the siting, in 1979, of a waste facility in a predominantly African-American neighbourhood in Northwood Manor, Houston, only eight years after the siting in the same neighbourhood (when the area was predomin-antly white) had been rejected by local authorities.2 Through local activism, grassroots networks and campaigning, an entire environmental justice movement gradually came about in the US, eventually succeeding in drawing national attention to local struggles. Throughout the 1980s and 1990s, impetus was added to the environmental justice argu-ment when a series of studies, in one way or the other, all seemed to confi rm the instinct of environment-harming facilities being sited in the ‘path of least resistance’.3 On the back of this evidence, campaigners set out to facilitate environmental justice, originally phrased under the heading of ‘environmental racism’, under a wide range of ‘justice’ defi nitions.4

• First, an equal distribution of environmental harms was sought through calls for distributive justice.5 This distributive focus is what may be seen as the historical origin and underpinning of environmental justice. Since then, however, multiple layers have been added to the defi nition of environmental justice.

• Secondly, calls were made for procedural justice, emphasising issues of participation, access to information and justice for minority neighbourhoods, and for decisions to be made in accordance with the concept of ‘free informed

1 See, in general, R. D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (Westview Press: Boulder, Colorado, 2000) and L. W. Cole and S. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (New York University Press: New York, 2001).

2 R. D. Bullard, ‘Environmental Racism and “Invisible” Communities’ (1994) 96 W. Va. L. Rev. 1037 at 1038. The reasons for refusing the 1971 application had, inter alia, been: (1) that the proposed landfi ll would be too close to a school; (2) it would lower the residents’ property values; (3) it would create health hazards from rats, rodents and other vermin; and (4) it would increase truck traffi c and endanger the lives of children walking to school.

3 A. Kaswan, ‘Environmental Justice: Bridging the Gap between Environmental Laws and “Justice”’ (1997) 47 Am UL Rev 221 (1997) and M. B. Gerrard, ‘Refl ections on Environmental Justice’ (2001) 65 Alb L Rev 357.

4 See R. R. Kuehn, ‘A Taxonomy of Environmental Justice’ (2000) 30 Environmental Law Reporter 10681, and R. J. Lazarus, ‘Pursuing “Environmental Justice”: The Distributional Effect of Environmental Protection’ (1993) 87 Northwestern University Law Review 787.

5 See, for instance, Principles of Environmental Justice, Principle 2, Bullard, above n. 1, calling for ‘geographical equity’ at 116 and Executive Order 12898 of 11 February 1994, ‘Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations’.

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consent’.6 This procedural approach is also recognised outside the civil rights origin of environmental justice. Thus, in Europe, the 1998 Aarhus Convention seeks to achieve ‘access to justice’ in environmental matters.7

• Thirdly, as portrayed in the infl uential work of David Schlosberg, environmental justice has been pursued under a heading of ‘recognition’.8 This approach emphasises, in contrast to defi nitions dealing with distribution only, an explicit need for recognition of minority populations and underlying social conditions alongside the distributive and procedural approaches.

• Fourthly, environmental justice campaigners have called for a substantive right for all individuals to be protected from environmental degradation.9 This approach emphasises the equal right of all people to be effectively protected from environmental harms and it echoes calls made in the human rights debates on environmental issues where it is occasionally argued that a substantive human right to a healthy environment is desirable.10

• Fifthly, although this was not a feature of the early environmental justice arguments, some environmental justice groups have started to cast their nets more widely, emphasising ‘productive justice’ which questions the prior reasons and decisions controlling the production of environmental burdens.11 In other words, instead of focusing on the distribution of harm and anthropocentric exposure to such harm, certain environmental justice campaigners take a more holistic approach when challenging decisions that present a potential environmental risk before such decisions are implemented.

• Finally, and in line with the ‘productive justice’ approach, environmental justice calls are increasingly being applied outside anthropocentric social justice settings and to the non-human sphere of the environment and animals. This is done under the heading of ‘ecological justice’, borrowing from environmental ethics, where justice is taken to encompass obligations towards the environment.12

6 See, for instance, Bullard, above n. 1 at 116, calling for ‘procedural equity’; Kaswan, above n. 3, calling for ‘political justice’ at 279; K. Shradder-Frechette, Environmental Justice, Creating Equality, Reclaiming Democracy (Oxford University Press: Oxford, 2002) 27; and L. A. Binder, ‘Religion, Race and Rights: A Rhetorical Overview of Environmental Justice Disputes’ (1999) 6 Wisconsin Environmental Law Journal 1 at 24–27.

7 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1999) 38 ILM 517.

8 D. Schlosberg, Environmental Justice and the New Pluralism: The Challenge of Diversity for Environmentalism (Oxford University Press: Oxford, 1999); D. Schlosberg, ‘Reconceiving Environmental Justice: Global Movements and Political Theories’ (2004) 13(3) Environmental Politics and D. Schlosberg, Defi ning Environmental Justice: Theories, Movements, and Nature (Oxford University Press: Oxford, 2007). See also S. Foster, ‘Justice from the Ground Up’ (1998) 86 Cal L Rev 775.

9 See Bullard, above n. 1 at 122; R. D. Bullard, The Quest for Environmental Justice, Human Rights and the Politics of Pollution (Sierra Club Books: San Francisco, 2005) 25; R. D. Bullard, ‘Levelling the Playing Field through Environmental Justice’ (1999) 23 Vt L Rev 453 at 454, and Bullard, above n. 2 at 1041.

10 See, most recently, S. J. Turner, A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers towards the Environment (Kluwer Law International: Austin, 2009).

11 See R. W. Lake, ‘Volunteers, NIMBYs, and Environmental Justice: Dilemmas of Democratic Practice’ (1996) Antipode 28:2 at 165, and D. Faber, ‘The Struggle for Ecological Democracy and Environmental Justice’ in D. Faber (ed.), The Struggle for Ecological Democracy, Environmental Justice Movements in the United States (Guildford Press: New York, 1998) 15.

12 See, most prominently, D. Schlosberg, Defi ning Environmental Justice, above n. 8.


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In addition to these approaches, calls for environmental justice are increasingly being asserted in settings of space, history, gender, transport, energy, youth activism and hous-ing.13

It is thus evident that environmental justice is a rather broad and wide-reaching concept emphasising multiple notions of justice. One rationale behind this is partly to be found in the original defi nition of the environment adopted by the environmental justice move-ment as being ‘where we live, work and play’, underlining the change of focus compared to conventional environmental groups emphasising nature conservation.14 Coupled with this is the fact that ‘justice’ is hardly a static or easily identifi able concept. Hence, it makes little sense to talk of one defi nition of environmental justice. We are instead forced to accept that the concept of environmental justice is vague, nebulous and can mean many different things to different people. Perhaps that is partly why it has been so successful at the grassroots level. In spite of this success, it may be worth pondering whether this in-built ambiguity does not, at the same time, render the concept meaningless while per-haps depriving the concept of value? Whereas it is tempting to answer such questions in the affi rmative, it must be borne in mind that, as the concept is making its way into the UK, ambiguity is to be expected as differences between the UK and the US in terms of demography, ethnography and social characteristics are obvious.15

Moreover, one central characteristic of environmental justice, and arguably the great-est advantage of the concept, is that, partly as a result of its many defi nitions, it has succeeded in facilitating debates on environmental issues, laws and decisions. In this light, the concept of environmental justice has, notwithstanding problems of defi nition, an important role to play. What is more, it is evident that environmental justice brings to the fore a series of questions and concerns making a comparison with established envi-ronmental norms relevant. It is to this comparison that we will now turn.

3. THE PRECAUTIONARY PRINCIPLE AND ENVIRONMENTAL JUSTICEIn layman’s words, the precautionary principle can be taken to mean ‘better safe than sorry’ or ‘prevention is better than cure’.16 The principle thus assumes action prior to an activity being carried out and before its results are known.17 Despite these simplifi cations of the principle’s remits, its application is far from straightforward. This is underlined by

13 See, in general, J. Sze and J. K. London, ‘Environmental Justice at the Crossroads’ (2008) 2(4) Sociology Compass 1331; G. Walker, ‘Beyond Distribution and Proximity: Exploring the Multiple Spatialities of Environmental Justice’ (2009) 41(4) Antipode 614; K. Bickerstaff and J. Agyeman, ‘Assembling Justice Spaces: The Scalar Politics of Environmental Justice in North-east England’ (2009) 41(4) Antipode 781; S. Buckingham and R. Kulcur, ‘Gendered Geographies of Environmental Justice’ (2009) 41(4) Antipode 659; and G. Walker and H. Bulkeley, ‘Geographies of Environmental Justice’ (2006) 37 Geoforum 655.

14 C. Lee, ‘Developing the Vision of Environmental Justice: A Paradigm for Achieving Healthy and Sustainable Communities’ (1995) 14 Virginia Environmental Law Journal 571 at 571 and Di Chiro, ‘Environmental Justice from the Grassroots: Refl ecting on History, Gender, and Expertise’ in Faber (ed.), above n. 11 at 105.

15 See A.-M. Slater and O. W. Pedersen, ‘Environmental Justice: Lessons on Defi nition and Delivery from Scotland’ (2009) 52(6) Journal of Environmental Planning and Management 797, discussing environmental justice in Scotland.

16 See J. Paterson, ‘Sustainable Development, Sustainable Decisions and the Precautionary Principle’ (2007) 42 Natural Hazards 515 at 517, and D. B. Resnik, ‘Is the Precautionary Principle Unscientifi c?’ (2003) 34 Stud. Hist. Phil. Biol. & Biomed. Sci. 329 at 329.

17 N. de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press: Oxford, 2002) 91.


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the fact that it has found application in a wide range of areas in varying circumstances.18 The precautionary principle can be traced back to the 1970s to what was then the Federal Republic of Germany (FRG), where the principle of vorsorge emerged in clean air legisla-tion before the Bundestag in an attempt to curb damage to the environment as a result of acid rain and smog.19 On the international scene, the principle initially found application in law relating to the protection of the marine environment, particularly in a number of regional instruments and agreements. For instance, the parties within the North Sea Ministerial Conferences made references of a precautionary nature in their 1984 Bremen Ministerial Declaration and specifi c reference to the principle in the 1987 London Minis-terial Declaration.20 More recently, the principle has become a central part of European Union policy relating to the environment, fi nding its way into the Treaty on the Function-ing of the European Union.21

Principle 15 of the Rio Declaration, which embodies the precautionary principle, states that ‘where there are threats of serious or irreversible damage, lack of full scientifi c cer-tainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.22 The main aim of the principle is thus to prevent harm to human health and the environment, where the full effects of a given action are not yet known. As Principle 15 implies, a central trait of the precautionary principle is whether a threat of harm exists. In examining whether a threat exists or not, the concept of risk is central.23 This part of the precautionary principle is arguably the one part with the strongest environmental justice implications.24 Very simplifi ed, the concept of risk can be seen as falling in two parts: risk assessment and risk management.25 Under risk assess-ment, the likely outcome and magnitude of a specifi c action is measured and considered – often based on scientifi c inquiry and data.26 Risk management is the process by which a decision on how to deal with the outcome yielded in the risk assessment is made – often by politicians and governments.27 These processes hold a number of environmental jus-tice implications.

18 E. Fisher, J. Jones and R. V. Schomberg, ‘Implementing the Precautionary Principle: Perspectives and Prospects’ in E. Fisher, J. Jones and R. V. Schomberg (eds), Implementing the Precautionary Principle (Edward Elgar: Cheltenham, 2006), and E. Fisher, Risk Regulation and Administrative Constitutionalism (Hart: Oxford, 2007). See also C. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press: New York, 2005), noting at 120 that ‘[f]or every regulatory tool, there is a corresponding Precautionary Principle’.

19 See, in general, S. Boehmer-Christensen, ‘The Precautionary Principle in Germany – Enabling Government’ in T. O’Riordan and J. Cameron (eds), Interpreting the Precautionary Principle (Cameron May: London, 1994) 35–36.

20 See, in general, de Sadeleer, above n. 17 at 94–95 and M. MacGarvin, ‘Precaution, Science and the Sin of Hubris’ in T. O’Riordan and J. Cameron (eds), above n. 19.

21 TFEU Art. 191(2). For an application of the principle by the courts, see E. Fisher, ‘Is the Precautionary Principle Justiciable?’ (2001) 13(3) Journal of Environmental Law 315, Ireland v United Kingdom (2002) 41 ILM 405 for international application, and Case C-T-13/99 Pfi zer Animal Health SA v Council of the European Union ECR II-3305 for a European application.

22 Rio Declaration on Environment and Development (1992) 31 ILM 874, Principle 15.23 See, in general, F. Warner, ‘What If? Versus If It Ain’t Broke Don’t Fix It’ in T. O’Riordan and J. Cameron

(eds), above n. 19.24 See, for instance, B. Goldman, ‘An Environmental Justice Paradigm for Risk Assessment’ (2000) Human

and Ecological Risk Assessment 6(6) 541, noting at 541 that ‘[I]n a way, environmental justice is a risk analyst’s worst nightmare’.

25 D. T. Hornstein, ‘Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis’ (1992) 92 Columbia Law Review 562 at 570. A third part is sometimes considered to be that of risk communication.

26 P. M. Kannan, ‘The Precautionary Principle: More than a Cameo Appearance in United States Environmental Law?’ (2007) 31 William & Mary Environmental Law & Policy Review (2007) at 410–411.

27 Ibid.


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First and foremost, the process of risk assessment and its reliance on scientifi c methods is often seen by environmental justice campaigners as going against the central focus of environmental justice as these have claimed to rely on notions of ethics, equity and social justice.28 Such differences partly lay behind the call for popular epidemiology raised by some environmental justice activists stressing the evidence and testimony given by local residents, rather than technological evidence from scientists and bureaucrats.29 In this way, the critique of the use of risk assessment by environmental justice campaigners can be seen as following the well-trodden debates on risk and democracy which have tended to fall along instrumental lines.30

Similarly, environmental justice advocates criticise the statistical generalisations of envi-ronmental issues in the risk assessment process.31 Environmental justice activists have, for example, pointed to the ‘70kg white male problem’, which is seen as not taking into account the variability in human susceptibility to certain risks.32 For instance, centrally calculated thresholds of contamination levels in, say, fi sh are sometimes based on an average consumption of a white male, which may not refl ect the varied susceptibility that some minority populations face as a result of their diets being high in fi sh.33 This situa-tion does not, however, hold true for all environmental risks. In the UK, the Environment Agency has a policy of calculating the maximum level of allowable exposure to radioac-tive activity based on the level of exposure faced by the so-called ‘critical group’ – that is, the group which is at greatest risk of exposure.34 Moreover, environmental justice cam-paigners have argued that risk assessment often does not consider the individual’s specifi c situation, which may lead to a different susceptibility. For instance, variations in genetic and medical combinations as a result of race, lifestyles, and socio-demographic features are all factors that can change an individual’s susceptibility to a particular risk, which

28 See E. Gauna, ‘Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice’ (1995) 22 Ecology Law Quarterly 1. See, however, M. D. Adler, ‘Risk Equity: A New Proposal’ (2008) 32 Harvard Environmental Law Review 1, who criticises the environmental justice movement’s criticism of risk assessment for being too simplistic in that it focuses only on differences in social status, thus neglecting differences between individuals of the same social status.

29 See, for instance, P. Novotny, ‘Popular Epidemiology and the Struggle for Community Health in the Environmental Justice Movement’ in D. Faber, above n. 11 at 141–148; D. N. Scott, ‘Confronting Chronic Pollution: A Socio-Legal Analysis of Risk and Precaution’ (2008) 46 Osgoode Hall Law Journal, discussing the use of so-called ‘body burdens’ and ‘bucket brigades’ both relying on local activities; F. Fischer, Citizens, Experts and the Environment (Duke University Press: Durham, 2000), citing Brown who notes that ‘popular epidemiology’ is ‘a process in which lay persons gather statistics and other information and also direct and marshall the knowledge and resources of experts’; and B. Bryant, ‘Pollution Prevention and Participatory Research as a Methodology for Environmental Justice’ (1995) 14 Virginia Environmental Law Journal 589, arguing in favour of participatory research.

30 See Fisher, above n. 18. Here it could be argued that the criticism levelled against authorities and institutions in general by environmental justice campaigners accusing administrations of suffering from an indifference to difference (by e.g. not paying attention to the plight of minority communities and not employing minority employees) is, to some extent, aimed at addressing what Fisher characterises as questions of ‘administrative constitutionalism’.

31 Hornstein, above n. 25 at 626.32 See R. R. Kuehn, ‘The Environmental Justice Implications of Quantitative Risk Assessment’ (1996) U Ill L

Rev 103 at 121.33 See B. E. Hill and N. Targ, ‘Protecting Natural Resources and the Issue of Environmental Justice’ in Kathryn

Mutz (ed.), Environmental Justice and Natural Resources: Concepts, Strategies and Applications (Island Press: Covelo, 2001) 290–293 and C. A. O’Neill, ‘Variable Justice: Environmental Standards, Contaminated Fish, and “Acceptable” Risk to Native Peoples’ (2000) 19 Stanford Environmental Law Journal 3.

34 See http://www.environment-agency.gov.uk/research/library/data/34345.aspx. See also T. W. Simon, ‘In Defense of Risk Assessment: A Reply to the Environmental Justice Movement’s Critique’ (2000) Human and Ecological Risk Assessment 6(6) 555 at 558, arguing that claims of difference in susceptibility are overblown.


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may not form part of the risk assessment because of the general nature of how that risk is assessed.35

Furthermore, environmental justice campaigners complain that traditional risk assess-ment rarely takes into account cumulative exposure to risk. That is, risk assessment will often, because of its relative complexity, only consider one particular risk and one par-ticular outcome, and not a combination of a number of different risks and outcomes.36 This is seen as striking at the centre of the environmental justice problem, as the main argument behind environmental justice is that certain minorities take upon them a dis-proportionate burden of harms as a result of a concentration of polluting facilities. This results in a situation where a community is subject to a number of different risks that individually would be acceptable, and thus perceived as fair, but because of the cumula-tive effect the community sees itself as unfairly treated.37 This problem is further exacer-bated by the fact that, although a risk assessor knows the effects of overexposure to one risk, few may know the effects of so-called pollution mixes. Again, problems like these are partly why environmental justice activists are rarely impressed with scientifi c and statisti-cal generalisations and call for local epidemiology.38

Another environmental justice problem with the application of risk assessment is the forum in which such assessment is carried out. As the exercise of risk assessment is, to a large degree, based on scientifi c methods and empirical evidence, it sometimes remains closed to the communities facing the risk.39 In spite of the complexities and diffi culties entailing a risk assessment exercise, it is often argued that where the assessment is car-ried out in a purely scientifi c setting away from those facing the risk, such an assessment is detrimental to the concept of environmental justice.40 This is highlighted where the risk assessment exercise is not necessarily perceived as objective. Although scientifi c methods are often portrayed as objective and unbiased, the risk assessment procedure is seen as being open to individual and subjective interpretation.41 Such problems are intensifi ed in situations where one party to an environmental justice confl ict has better access to infl uence than the other party. This is, for instance, seen where the mere understand-ing of a risk assessment requires specifi c expertise and substantial resources – some-thing often not available to communities pursuing an environmental justice claim.42 In addition, where the risk assessment is carried out by a government agency, the capture theory (under which the agency and the regulated subject become intertwined and share a common ground) may add to the unfair balance.43

35 Kuehn, above n. 32 at 123–124.36 Ibid. at 117–118. 37 Ibid.38 See above n. 29.39 See T. J. Lowi, ‘Risks and Rights in the History of American Government’ (1990) Daedalus, Fall 17, noting,

at 18, that ‘those speaking the loudest against risk-alleviating policies were among society’s most risk-insulated persons’.

40 De Sadeleer argues that risk assessors need to become more aware of the ‘social dimensions’ of their exercise by creating more room for deliberation and that risk assessment must not be considered a purely scientifi c enterprise to which only experts have access, above n. 17 at 195. See also K. Sexton, ‘Socioeconomic and Racial Disparities in Environmental Health: Is Risk Assessment Part of the Problem or Part of the Solution?’ (2000) Human and Ecological Risk Assessment 6(6) 551 at 571, noting that ‘Interpreting risk assessment to include only “hard” quantifi able (or quantifi ed) factors, and disregarding or marginalizing “soft” non-quantifi able (or not quantifi ed) variables, has tended historically to preclude considerations of pertinent issues, such as social class, ethnicity, race, and culture’.

41 Kuehn, above n. 32 at 134. 42 Ibid. at 130–131.43 Ibid. at 133.


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Similarly, recent work on the precautionary principle has, in light of the principal appli-cation of the principle in administrative settings, highlighted the need for administrative capacity, legitimacy and good risk governance when it comes to applying the precaution-ary principle and communicating the particular risk.44 Equally, in the context of environ-mental justice in the US, where accusations of institutional indifference to the situations of minority populations were and are prevalent, questions of legitimacy and proper com-munication have played a central role.45

The problems of lack of openness and transparency in the risk assessment process can be remedied, however, through the process of risk management. Where risk assessment is based on scientifi c inquiry and methods, risk management has the potential to take place in the public domain and ought to be open to the public. Thus, what may be seen as the ‘democratic’ side of the precautionary principle may facilitate environmental jus-tice objectives where the political responses to certain risks are openly debated through processes involving all interested parties.46 This may be the case on both the domestic as well as the supra-national level; for instance, in its Communication on the precautionary principle the Commission notes that decision-making procedures should be transparent and involve all interested parties.47 Accordingly, in order for the risk management deci-sions to be in line with environmental justice arguments, decisions ought to be taken as openly as possible.48

Finally, one problem with risk assessment is that it is often treated as a solution rather than a tool. Just as politicians are perhaps more likely to weigh short-term benefi ts over long-term ill effects, it can be argued that they are not very likely to dismiss the results of a risk assessment exercise because of public or community concern.49 Under this scenario, the risk assessment becomes the end rather than a method to aid the decision-makers in the risk management situation.50

In spite of the discrepancies between the precautionary principle, its notion of risk, and environmental justice, some areas of compatibility do exist between the two. First, the precautionary principle is generally thought to hold a presumption in favour of protect-ing the environment and human health, which means that the principle generally places the burden of proof on those who carry out an activity that threatens the environment or human health.51 Although the legal, administrative and judicial connotation of such pre-sumptions is unclear and may vary signifi cantly from context to context,52 the question of the onus and burden of proof is often seen as central in environmental justice ques-tions. Such a change in the burden of proof falls in line with calls made by environmental justice campaigners and is similar to the ‘environmental justice framework’ proposed by

44 E. Fisher and R. Harding, ‘The Precautionary Principle and Administrative Constitutionalism: The Development of Frameworks for Applying the Precautionary Principle’ in Fisher et al., above n. 18.

45 L. Pulido, ‘A Critical Review of the Methodology of Environmental Racism Research’ (1996) Antipode, 28:2.46 See L. Auberson-Huang, ‘The Dialogue between Precaution and Risk’, (2002) 20 Nature Biotechnology

1076–1078, terming this process ‘risk-analysis’, whereby risk assessment is integrated with policy concerns, social, cultural, political, and economic issues, considering this an ‘analytic-deliberative process’.

47 Commission of the European Communities, ‘Communication from the Commission on the Precautionary Principle’, COM (2000) 1 at 4.

48 Ibid.49 J. S. Freeman and R. D. Godsil, ‘The Question of Risk: Incorporating Community Perceptions into

Environmental Risk Assessments’ (1994) 21 Fordham Urban Law Journal 547 at 567–568.50 Kuehn, above n. 32 at 128–129.51 De Sadeleer, above n. 17 at 203. See also Kannan, above n. 26 at 422–423. 52 Fisher, above n. 18 at 44, and J. Jones and S. Bronitt, ‘The Burden and Standard of Proof in Environmental

Regulation: The Precautionary Principle in an Australian Administrative Context’ in Fisher et al., above n. 18.


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Robert D. Bullard in an attempt to abate environmental justice problems.53 Furthermore, the principle’s focus on avoiding harm to human beings and the environment has the potential to maintain natural ecosystems – without which less well off populations would be even worse off.54

Similarly, it can be argued that a ‘strong’ adherence to the precautionary principle, rather than the utilisation of risk assessment, will fall in line with environmental justice con-cerns.55 Thus, at least on a theoretical level, where a threat of harm is identifi ed, regard-less of magnitude and likelihood, a ‘strong’ interpretation of the principle would mean that the activity causing the threat should cease, which would then result in no environ-mental injustices occurring. A reliance on such an interpretation would help to avoid future incidents of environmental injustice. However, such ‘strong’ interpretation of the precautionary principle is untenable and does cause serious problems.56 First, it is highly questionable whether the principle can at all be said to be absolute.57 Secondly, an abso-lute adherence to the principle prohibiting any form of activity entailing harm would be futile and put undue restraints on life in general.58

At the same time, it is worth bearing in mind that some of the above identifi ed problems with the precautionary principle and its reliance on risk assessment and management are not per se due to a fault with the principle itself. Instead, many of the environmental justice problems identifi ed as a result of risk assessment and management may be a result of the sometimes misunderstood application of these regimes.59 As already noted, risk assessment is sometimes viewed as an end in itself rather than an instrument designed to help the decision-maker.60 As noted by former head of the US EPA, William Ruckelshaus, ‘[W]e should remember that risk assessment data can be like a captured spy: if you tor-ture it long enough, it will tell you anything you want to know’.61

Another problem is the fact that perceptions of risk often vary regardless of susceptibility and exposure. Although environmental justice activists claim to exercise intuition when relying on popular epidemiology, it is evident that, in some instances, serious differences exist in perceptions of what actually constitutes a risk. This includes, for instance, per-ception of risk associated with nuclear power plants, X-rays, fl ight safety and unhealthy diets.62 However, the stark differences in risk perception between the public and risk assessors should not be dismissed; the challenge for the decision-maker is to strike a

53 See, for instance, Bullard, above n. 1 at 122. 54 R. Attfi eld, ‘The Precautionary Principle and Moral Values’ in T. O’Riordan and J. Cameron (eds), above n.

19 at 159. 55 See, for instance, N. Kibert, ‘Green Justice: A Holistic Approach to Environmental Injustice’ (2001) 17

Journal of Land Use & Environmental Law at 178. 56 This is most prominently highlighted in the work by Cass Sunstein. See C. Sunstein, Laws of Fear: Beyond

the Precautionary Principle (Cambridge University Press: New York, 2005).57 De Sadeleer describes the principle as a ‘directing principle’, being somewhat less binding than more

prescriptive rules, above n. 17, Chapters 5 and 6. See also Attfi eld, above n. 54, arguing (at 160) that the principle is not fundamental or overriding.

58 See, in general, Sunstein, above n. 56. One way, however, to avoid this overly restrictive version of the principle would be to apply the version advocated by Resnik when he argues that one should apply the precautionary principle to take reasonable measures to avoid plausible and serious threats. See D. B. Resnik, ‘The Precautionary Principle and Medical Decision Making’ (2004) Journal of Medicine and Philosophy 29(3) 281, emphasis added.

59 Kuehn, above n. 32 at 128. 60 See also Sexton, above n. 40.61 W. D. Ruckelshaus, ‘Risk in a Free Society’ (1984) 14 Envtl L Rep 10.190 at 10.191.62 See, in general, P. Slovic, J. Flynn and M. Layman, ‘Perceived Risk, Trust, and the Politics of Nuclear Waste’

in P. Slovic (ed.), The Perception of Risk (Earthscan: London, 2000).


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fair balance between the two.63 Here, the precautionary principle does itself offer some guidance, as the principle is designed to deal with uncertain risks.64 This is contrasted by purely hypothetical residual risks, which society is bound to live with, and certain risks, which are governed by the principle of prevention.65

It is thus clear that discrepancy, as well as compatibility, exists between the precautionary principle and the concept of environmental justice. The principal cause for discrepancy between the two is the role that risk assessment and risk management play within the pre-cautionary principle. These two parts do, in some instances, lead to confrontation with ideas of public participation, emphasis on social justice, and popular epidemiology – all ideas that are central to environmental justice. On the other hand, the part of the precau-tionary principle that emphasises a change in the burden of proof, notwithstanding the legal ambiguity of such assertions, can form part of the environmental justice advocate’s toolkit.

4. THE PRINCIPLE OF PREVENTION AND ENVIRONMENTAL JUSTICEClosely linked to the precautionary principle is the principle of prevention. From the outset, however, it is evident that the principle of prevention is not easy to defi ne.66 Indeed, it could be argued that there is not one principle of prevention – rather, the principle man-ifests itself through a wide array of different procedures, mechanisms and instruments. In spite of this, the principle has been labelled a ‘beacon of environmental law’ and ‘a sort of golden rule’.67 On the international level, the principle of prevention is closely tied to the obligation of states not to cause harm to the environment of other states, as this has been established by the Trail Smelter decision and elaborated in Principle 21 of the Stock-holm Declaration and Principle 2 of the Rio Declaration.68 The principle of prevention has since found application in numerous international agreements including Article 3 of the UN Framework Convention on Climate Change (UNFCCC),69 Article 2 of the OSPAR Convention,70 Article 4(2) of the Basel Convention,71 and Article 14 of the Convention on Biological Diversity.72 Likewise, Article 191(2) of the Treaty on the Functioning of the EU gives emphasis to preventive action just as secondary EU environmental law relies on the principle.73 In particular, the reference to the principle in Article 191(2) has added impe-tus to the principle, as Member States are thus obliged to take the principle into account

63 See Hornstein, above n. 25, arguing (at 615) that the public’s varying concerns ‘are hardly inconsequential values that should clearly be ignored in any rational calculation of a risk’s social utility’.

64 De Sadeleer, above n. 17 at 156–161.65 Ibid. at 160. De Sadeleer argues that the risk should be considered scientifi cally likely as opposed to

speculation and hypothesis. See also Resnik, above n. 58 at 336, noting that the threats addressed by the precautionary principle must be credible threats.

66 De Sadeleer, above n. 17 at 60.67 Ibid. at 89.68 Trail Smelter Arbitration Tribunal (1939) 33 AJIL 182; Declaration of the United Nations Conference on the

Human Environment (1972) 11 ILM 1416, and Rio Declaration, above n. 19.69 United Nations Framework Convention on Climate Change (1992) ILM 849, Art. 3.70 Convention for the Protection of the Marine Environment of the North-East Atlantic (1993) 32 ILM 1069,

Art. 2.71 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

(1989) 28 ILM 657, Art. 4(2).72 Convention on Biological Diversity (1992) 31 ILM 818, Art. 14.73 See nn. 76–77 below.


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when transposing EU law based on Article 192.74 However, in order to establish some tan-gible defi nition from the many references to the preventive principle and its compatibility with environmental justice, it is necessary to look closer at some of the ways in which the principle has been applied.

Under international law, the duty to prevent harm to the territories of other states mani-fests itself in a duty of due diligence that requires states to introduce policies, legislation and controls aimed at preventing harm and minimising the risk of transboundary harm.75 Thus, in domestic as well as EU law, the extensive range of environmental law and stat-utes can all be seen as a way of ‘implementing’ the principle of prevention.76 One such example is seen in the latest EC Directive on waste, which in Article 1 has as its aim to prevent the production of waste while it places prevention at the top of the waste hierar-chy, just as Article 29 of the Directive imposes waste prevention programme obligations on Member States.77

The principle of prevention is arguably the principle that has the greatest potential to address environmental injustices. In his environmental justice ‘framework’, Bullard places an emphasis on the prevention of pollution before harm occurs. It is argued that instead of having to ‘wait until causation or conclusive “proof” is established’, authorities ought to take action based on prevention.78 As an example of where preventive action is required, Bullard refers to the exposure to lead from leaded paint, which many African-American children have faced as a result of poor standards of housing despite the well known ill effects associated with high blood lead levels.79 On the face of it, the emphasis on prevention seems appropriate and, from a regulatory standpoint, rather uncontrover-sial. However, from a judicial point of view, the approach away from causality and proof may cause diffi culties as an ‘environmental justice framework’ that neglects issues of cau-sality may have a hard time convincing the judiciary that an injustice has taken place.80

At the same time, other problems persist. With reference to the issue of waste, the prin-ciple of rectifi cation at source, which is also recognised in Article 191(2) TFEU, can be seen as being closely linked to prevention. Rectifi cation at source has clear environmental justice implications if some of the early environmental injustice examples from both the US and the UK are recalled. One such example, from the early 1980s in the US, was the dumping of PCB contaminated soil in Warren County, North Carolina. To the dismay of the predominantly African-American community, it was chosen as a burial ground for contaminated soil which had been salvaged from across the state.81 In the UK, one example which is often seen as a case of environmental injustice is the plight of the com-

74 See A. Doyle and T. Carney, ‘Precaution and Prevention: Giving Effect to Article 130r without Direct Effect’ (1999) 8(2) European Environmental Law Review 44.

75 P. Birnie, A. Boyle and C. Redgewell, International Law and the Environment (Oxford University Press: Oxford, 2009) 147–149, and de Sadeleer, above n. 17 at 72.

76 See de Sadeleer, above n. 17 at 70–72, listing a number of domestic examples.77 Directive of the European Parliament and of the Council on waste repealing Directive 2008/98/EC, Arts. 1

and 4.78 See, in general, R. D. Bullard (ed.), Confronting Environmental Racism, Voices from the Grassroots (South

End Press: Boston, MA, 1993) 203–206; R. D. Bullard (ed.), Unequal Protection: Environmental Justice and Communities of Color (Sierra Club Books: San Francisco, 1994) 7–12; Bullard, above n. 1 at 121–125.

79 Ibid.80 The problems that environmental justice plaintiffs have faced in US courts can be seen as an example of

this. 81 R. D. Bullard, ‘Race and Environmental Justice in the United States’ (1993) 18 Yale J Int’l L 319 at 328, and

D. Taylor, ‘Environmentalism and the Politics of Inclusion’ in Bullard (ed.), above n. 78.


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munity of Greengairs in Lanarkshire, Scotland.82 As in Warren County, Greengairs found itself on the receiving end of PCB contaminated soil collected from across the UK, which was the result of unresolved issues with the operator’s licence. The community started a campaign, supported by Friends of the Earth Scotland, in the name of environmental jus-tice. Environmental justice proponents could feasibly argue that a strict adherence to the principle of rectifi cation at source would avoid perceived injustices like those in Warren County and Greengairs – had the waste been dealt with in situ it would not have had to be transported to these communities. On the other hand, where, for instance, certain types of waste are of such a precarious and dangerous nature that they will need special treatment and expertise, and such facilities are located in low-income neighbourhoods, environmental and health considerations point towards transporting such waste to the relevant facilities, although this may be far away from the source.

When the principle of prevention is partly ‘implemented’ through a portfolio of domestic environmental laws, other issues of relevance to environmental justice arise. For instance, the principle carries with it a reliance on cost–benefi t analysis.83 This is witnessed where the principle is qualifi ed, as it often is, by reference to a particular harm being either ‘seri-ous’ or ‘signifi cant’ before action is taken.84 In such cases, the authority deciding whether preventive action is needed will have to weigh the probability of damage against the pos-sible environmental, health and socio-economic benefi ts and costs.85 Often such use of cost–benefi t analysis, and its reliance on willingness to pay principles, is considered to be at odds with environmental justice arguments.86 Such arguments should come as no surprise given the often heated debates taking place in environmental discussion on the role of cost–benefi t analysis.87 As noted by Hsu:

What worries environmental justice advocates about cost–benefi t analysis and the economic way of thinking is that it seems to give license to the tyrannization of minorities, as long as there is an increase in wealth. Thus, cost–benefi t analysis and other economic instruments seem to open the door to the oppression of poor minorities (both in the ethnic and the political sense) for the benefi t of the rich.88

82 K. Dunion, Troublemakers: The Struggle for Environmental Justice in Scotland (Edinburgh University Press: Edinburgh, 2003).

83 It is worth noting at this point that cost–benefi t analysis is not merely relevant to the principle of prevention but equally plays a role under the precautionary principle; see, for instance, Commission of the European Communities, above n. 47, and Sunstein, above n. 56 at 130. Likewise, it can be argued that cost–benefi t analysis raises environmental justice concerns in its own right independent of both the precautionary principle and the principle of prevention. However, due to space constraints, cost–benefi t analysis is here dealt with as part of the principle of prevention.

84 The principle can in some instances be applied as an absolute norm – for example, where certain substances are outlawed entirely based on the harm they cause.

85 De Sadeleer, above n. 17 at 80–81.86 See P. Wenz, ‘Just Garbage’ in L. Westra, and P. Wenz (eds), Faces of Environmental Racism: Confronting

Issues of Global Justice (Rowman & Littlefi eld: Lanham, Md, 1995); P. Wenz, ‘Does Environmentalism Promote Injustice for the Poor?’ in R. Sandler and P. C. Pezzullo (eds), Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement (MIT Press: Cambridge, Mass., 2007); E. Gauna, ‘An Essay on Environmental Justice: The Past, the Present, and Back to the Future’ (2002) 42 Natural Resources Journal 701 at 710–712; C. Rechtschaffen, ‘Advancing Environmental Justice Norms’ (2003) 37 University of California Davis Law Review 95 at 104; and T. Yang, ‘Balancing Interests and Maximizing Rights in Environmental Justice’ (1999) 23 Vermont Law Review 529 at 542.

87 See, in general, M. Sagoff, The Economy of the Earth: Philosophy, Law and the Environment (Cambridge University Press: Cambridge, 2008).

88 S. Hsu, ‘On the Role of Cost–benefi t Analysis in Environmental Law: A Book Review of Frank Ackerman and Lisa Heinzerling’s Priceless: On Knowing the Price of Everything and the Value of Nothing’ (2005) 35 Envtl L 135 at 171.


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Often, however, the reality is less clear-cut and less simple and discussions on and criti-cism of the use of cost–benefi t analysis are often somewhat entrenched and partisan.89 Here it is worth recalling, as was the case with the precautionary principle, that cost–ben-efi t analysis, and its reliance on monetisation and ranking, is a process tool, or a metric, not a fi nal resolution.90 Moreover, it is important to bear in mind that what cost–benefi t analysis ranks is not necessarily harm itself but risk of harm; many environmental jus-tice studies assume an uncritical causal link between risk and harm.91 Of course, here environmental justice advocates may equally assert that one problem is the fact that the risk to a small minority group is ranked lower than the risk facing a larger group (what may be termed the ‘scale problem’).92 Indeed, where such assumptions are deemed to be unfair and/or inappropriate, it may even be possible to address these through cost–benefi t analysis. Cass Sunstein has, for instance, argued that it is possible to adjust any cost–ben-efi t analysis so that it takes into account distributive problems.93 Thus, it could very well be that cost–benefi t analysis can actually work in favour of an environmental justice argu-ment. Where environmental decision-making includes information on who and which social group benefi ts and/or receives the burden, such cost–benefi t analysis can, through deliberation, lead to increased transparency and actually facilitate more informed deci-sions.94 In this way, cost–benefi t analysis could possibly facilitate environmental justice.

Another point worth making in relation to cost–benefi t analysis and environmental jus-tice is that the use of such weighing of benefi ts and costs is likely to play an increasingly prominent role in policy-making in light of scarce resources.95 Thus, critics of cost–ben-efi t analysis are arguably better off trying to address the shortfalls of cost–benefi t analysis instead of seeking its eradication.96 One such argument could, for instance, be the usage of ‘number per life saved’ numbers instead of willingness to pay.97 Or, as noted above, pursue the inclusion of distributive impacts as part of the cost–benefi t equation.98

Thus, like the precautionary principle, the principle of prevention can be seen as giving raise to both confl ict and conformity with a concept of environmental justice. Again, this is perhaps not surprising given the multiple ways in which both the principle of preven-tion and environmental justice manifest themselves.

89 F. Ackerman and L. Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (The New Press: New York, 2004).

90 Hsu, above n. 88 at 144.91 Ibid. at 157–158.92 Ibid. at 160.93 C. Sunstein, ‘Lives, Life-years, and Willingness to Pay’ (2004) 104 Columbia Law Review 205 at 213, ‘The

Arithmetic of Arsenic’ (2002) 90 Geo LJ 2225 at 2260, ‘Selective Fatalism’ (1998) 27 J Legal Stud 799 at 812, and R. H. Pildes and C. Sunstein, ‘Reinventing the Regulatory State’ (1995) 62 U Chi L Rev 1 at 46–47.

94 C. Sunstein, ‘Cognition and Cost–benefi t’ (2000) 29 J Legal Stud 1059 at 1092–1093, and Hsu, above n. 88 at 171–172.

95 See C. Sunstein, The Cost–Benefi t State: The Future of Regulatory Protection (American Bar Association: Chicago, 2002). This book, however, deals only with the use of cost–benefi t analysis in the US. See also O. W. Pedersen, ‘Benefi ts and Costs of the Environment: Copenhagen Consensus 2008’ (2008) Journal of Environmental Law 20(3).

96 See, in general, R. I. Revesz and M. A. Livermore, Retaking Rationality: How Cost–Benefi t Analysis Can Better Protect the Environment and Our Health (Oxford University Press: New York, 2008).

97 Sunstein, above n. 95 at 9.98 See, for instance, Executive Order 12866 Regulatory Planning and Review of 30 September 1993, 58

Fed. Reg. No. 190 735, directing agencies to take into account ‘cost of enforcement and compliance (to the government, regulated entities, and the public), fl exibility, distributive impacts and equity’ at 5. See also M. D. Adler and E. A. Posner, New Foundations of Cost–Benefi t Analysis (Harvard University Press: Cambridge, Mass., 2006) 131.


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5. THE POLLUTER PAYS PRINCIPLE AND ENVIRONMENTAL JUSTICEWhereas the precautionary principle grew out of national law, the polluter pays principle emanates from the international sphere. The polluter pays principle saw light in 1972 when the Organisation for Economic Co-operation and Development (OECD) issued a number of recommendations on international economic aspects of environmental poli-cies.99 In its recommendations, the OECD argued, ‘[P]ublic measures are thus necessary to reduce pollution and to reach a better allocation of resources by ensuring that prices of goods depending on the quality and/or quantity of environmental resources refl ect more closely their relative scarcity and economic agents concerned react accordingly’.100 The Recommendation further noted that the polluter pays principle is to be used for the ‘allocating [of] costs of pollution prevention and control measures to encourage rational use of scarce environmental resources’ as well as to ‘avoid distortions in international trade and investment’.101 Thus, the polluter pays principle started out as a principle of economic thinking aimed at avoiding economically irrational distortions of the market, rather than a principle aimed at curbing environmental harm for the sake of the environ-ment. This is further underlined by the OECD Recommendation, which notes that any measures under the principle should not be accompanied by subsidies that would create signifi cant distortions in international trade and investment.102

Following the OECD Recommendation, the principle gained prominence in other inter-national settings. In 1973, the polluter pays principle made it into the First Environmen-tal Action Programme of the EC and has since reappeared in all of its following pro-grammes.103 The principle also appeared in Recommendation 75/436/Euratom, ECSC, EEC of March 1975, specifying the application of the principle in order to ‘avoid distor-tions in trade and competition incompatible with the proper functioning of the common market’.104 The polluter pays principle has since then found application in a number of EC directives and Article 191(2) TFEU.105 On the international level, the polluter pays principle has, inter alia, found application in Principle 16 of the Rio Declaration,106 the OSPAR Convention107 and the Baltic Sea Convention.108

In addition to being a principle of cost allocation, the polluter pays principle has been used as a principle of rectifi cation and liability, in line with principles of tort and delict.

99 OECD, ‘Environment and Economics Guiding Principles Concerning International Economic Aspects of Environmental Policies’, Recommendation of May 1972, C(72) 128.

100 OECD Recommendation, above n. 99 at A(a) 2. 101 Ibid., A(a) 4.102 Ibid.103 De Sadeleer, above n. 17 at 29.104 75/436/Euratom, ECSC, EEC: Council Recommendation of 3 March 1975 regarding cost allocation and

action by public authorities on environmental matters. The Recommendation lists two exceptions where the application of the principle may be limited: (a) where its immediate application is likely to lead to serious economic disturbances or may give rise to greater social costs, and (b) where, in the context of other policies, investment affecting the environment benefi ts from aid intended to solve certain problems. Similarly, the 1972 OECD Recommendation notes that the principle should be the objective of all Member States but that ‘there may be exceptions or special arrangements’ allowing for a less strict adherence to the principle.

105 TFEU Art. 191(2). 106 Rio Declaration, above n. 22.107 OSPAR Convention, above n. 70, Art. 2(2).108 Baltic Sea Convention, Art. 3(4). De Sadeleer, above n. 17 at 23, argues that a distinction should be made

between those international agreements that refer to the principle in their preambular provisions and those that refer to the principle in their substantive provisions.


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This is, for instance, seen in a 1989 Recommendation adopted by the OECD Council on the application of the polluter pays principle.109 The Recommendation notes that ‘[I]n matters of accidental pollution risks, the Polluter-Pays Principle implies that the operator of a hazardous installation should bear the cost’.110 Similarly, and more recently, Direc-tive 2004/35 on environmental liability draws on the polluter pays principle.111

However, a number of general problems with the interpretation of the polluter pays prin-ciple exist. Some of these problems may, at the same time, lead to diffi culties in relation to a concept of environmental justice. First, a general problem with the polluter pays principle is to identify who the polluter actually is. Although this might seem obvious, this question is also relevant to environmental justice and the norms of ethics and social justice inherent in the concept of environmental justice.112 The polluter pays principle arguably works most effectively where the costs of pollution prevention associated with certain goods are passed on to the consumer in order to create market-driven incentives to change shopping patterns which harm the environment.113 Ideally this would then lead to those products and goods that pollute the environment becoming more expensive and pollution-free products becoming more price-competitive in the long run. However, such ideals are not necessarily refl ected in real life and it remains the situation that most environmentally-friendly products are more expensive to produce, and thus more expen-sive to buy, which in turn puts them out of reach for some fi nancially less well off social groups, leaving them unable to get out of the shopping and consumption patterns that harm their environments and arguably raising environmental justice concerns.114

Similarly, ways of implementing the polluter pays principle can lead to confrontation with environmental justice. De Sadeleer argues that the principle can be implemented either through regulatory standards prohibiting or limiting the damage associated with the activity, or through taxation refl ecting the economic value gained through the pollut-ing activity.115 Whereas the use of regulatory standards is, in an environmental justice setting, relatively harmless, the use of taxation might not be. Although a tax on activities harming the environment can be designed to work progressively and is aimed at chang-ing behaviour, thus making itself superfl uous with time, taxes often hit the least well off the hardest.116 An example could be a carbon tax imposed equally on all households, rich as well as poor, aimed at taxing household energy use (without necessarily compensating poor households), which would work regressively as poor households already pay signifi -cantly more per unit of energy than do rich households.117 Again, this would seem to be at odds with concerns of environmental justice, holding that the least well off already take upon themselves an unfair burden of problems associated with the environment.

109 Recommendation of the Council concerning the Application of the Polluter-Pays Principle to Accidental Pollution, C (89) 88 of 7 July 1989.

110 Ibid. at 4.111 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental

liability with regard to the prevention and remedying of environmental damage, Art. 1.112 See above n. 28.113 S. E. Gaines, ‘The Polluter Pays Principle: From Economic Equity to Environmental Ethos’ (1991) 26 Texas

International Law Journal 463 at 472–473. 114 See E. Fisher, ‘Sustainable Development and Environmental Justice: Same Planet, Different Worlds?’ (2003)

26 SPG Environs Envtl. L. & Pol’y J. 201 for a similar argument. 115 De Sadeleer, above n. 17 at 21. 116 See H. C. Bugge, ‘The Polluter Pays Principle: Dilemmas of Justice in National and International Contexts’

in J. Ebbesson and P. Okowa (eds), Environmental Law and Justice in Context (Cambridge University Press: Cambridge, 2009).

117 See, for instance, P. Ekins and S. Dresner, ‘Green Taxes and Charges: Reducing their Impact on Low-Income Households’ (Joseph Rowntree Foundation, 2004).


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Another problem of defi ning the scope of the polluter pays principle is to do with the cost that the polluter, once he has been identifi ed, has to pay. Here it might be appropriate to distinguish between the principle defi ned in a strict sense and the principle defi ned in a wider sense.118 In the former, the principle is designed only to bring the pollution to a level accepted by authorities and is thus limited to partial internalisation; in the latter, the principle is designed also to allocate social damages associated with the pollution.119 This distinction runs, to some extent, parallel with the one made between the principle’s economic and legal interpretation.120 Whereas the original aim of the principle was to avoid distortion of international trade and investment, which would argue in favour of limited or narrow internalisation, it can be argued that the principle’s shift in focus now also to include issues of liability argues in favour of a broader and complete internalisa-tion of costs associated with a polluting activity.121 From an environmental justice point of view, the latter argument of complete internalisation would be the preferable option, as this would seem to include social costs resulting from the polluting activity rather than just the strictly monetary costs of pollution prevention and control.

Additionally, an environmental justice problem with the polluter pays principle is the principle’s original focus on trade and investment and thus its ‘free market spirit’. First and foremost, environmental justice activists attack the spirit of the free market, which is to some extent seen as leading to the problems of the environmental injustice communi-ties.122 This is, for instance, seen in the stance taken by environmental justice campaign-ers against what they call the ‘path of least resistance’.123 Furthermore, in order to tackle environmental justice problems, government action is often seen as not only necessary but vital – something that does not necessarily go down well with the historical free-mar-ket ideals in the polluter pays principle. Secondly, the principle’s opposition to subsidies and aid can be seen as being at odds with environmental justice. This is mainly in the situation where environmental justice arguments are applied to the international setting. Here, mechanisms of transfer of aid, technology and assistance – transfers that can be justifi ed on environmental justice grounds – can be seen as being in violation of the pol-luter pays principle, as the principle ostensibly opposes government aid and subsidies.124

Similarly, notions of differentiated responsibility, as developed under international envi-ronmental law, represent a prima facie violation of the polluter pays principle.125 It may be argued that this infringement of the polluter pays principle would take place where the principle is interpreted as an absolute principle. Such absolute assertions, however, would appear to be unfounded.126 The recommendations produced by, for instance, the OECD and the EU do allow for exceptions. This underlines the argument that the principle is not absolute and deviations from the principle on social, economic or environmental grounds

118 De Sadeleer, above n. 17 at 42. 119 Ibid. See also J. Pezzey, ‘Market Mechanisms of Pollution Control: “Polluter Pays”, Economic and Practical

Aspects’ in R. Kerry Tuner (ed.), Sustainable Environmental Management: Principles and Practice (Belhaven Press: Boulder Co., 1988), who calls this ‘standard PPP’ and ‘extended PPP’.

120 Gaines, above n. 113 at 470.121 See, in general, de Sadeleer, above n. 17 at 42–43.122 See, in general, D. Faber, ‘The Political Ecology of American Capitalism: New Challenges for the

Environmental Justice Movement’ in Faber (ed.), above n. 11. See also Kuehn, above n. 32 at 207.123 See above n. 3.124 See, however, U. Kettlewell, ‘The Answer to Global Pollution? A Critical Examination of Problems and

Potential of the Polluter-Pays Principle’ (1992) 3 Colo. J. Int’l Envtl. & Pol’y 429 at 477, asserting that the polluter pays principle does not operate very well in the international setting and is mainly a principle applicable in closed systems of domestic law and policy.

125 See below, Part 6.126 See Gaines, above n. 113 at 477.


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are justifi able.127 Thus, the prima facie violation of the polluter pays principle through transfer of aid, technology and assistance turns out to be permissible just the same.

However, in spite of the discrepancies between the polluter pays principle and environ-mental justice, some common ground does exist. This is most obvious where the polluter pays principle is utilised as a principle of liability. Here, the principle can be seen as an answer to the calls made by environmental justice campaigners for a more equitable dis-tribution of the harms and burdens associated with polluting activities. This function of the principle can be termed the distributive side of the principle, which is considered to be a cornerstone of environmental justice.128 This is particularly the case where the costs that the polluter has to bear are taken to encompass social costs rather than just the costs of pollution prevention.

Thus, the polluter pays principle, like the precautionary and preventive principles, gives rise to confrontation as well as reconciliation with a concept of environmental justice. The main problems with the polluter pays principle, from an environmental justice point of view, are the principle’s focus on free-market ideals, which on an ideological level goes against certain aspects of environmental justice, and the ways in which the principle is best implemented – through taxes which have the potential to hit the already hard-done-by populations the hardest. However, at the same time, the principle can be utilised to achieve central environmental justice goals – mainly of a fairer distribution of harms and costs from polluting activities, where it operates as a rule of liability.

6. SUSTAINABLE DEVELOPMENT AND ENVIRONMENTAL JUSTICEThe most infl uential principle and most recognised concept of environmental regulation and policy-making is without doubt that of sustainable development. Although the wide use and recognition of sustainable development would imply that the concept is easily defi ned, it is clear that, for sustainable development, with recognition comes ambiguity.129 Sustainable development was referred to in the 1985 ASEAN Agreement on the Conserva-tion of Nature and Natural Resources.130 Prior to that, the World Conservation Strategy gave credence to the term ‘sustainable development’ when it was published in 1980.131 However, it was not until the publishing of Our Common Future, by the World Commis-sion on Environment and Development (WCED) in 1987, that the term ‘sustainable devel-opment’ gained full recognition outside the area of conservation.132 More prominently, the principle is now found in Article 11 TFEU under which the Union must ‘promote

127 Ibid. 128 See de Sadeleer, above n. 17 at 29.129 R. E. Saunier and R. A. Meganck note that ‘there are literally hundreds of defi nitions of sustainable

development’ in their Dictionary and Introduction to Global Environmental Governance (Earthscan: London, 2007) 242.

130 ASEAN Agreement on the Conservation of Nature and Natural Resources, Preamble. 131 International Union for Conservation of Nature and Natural Resources (IUCN) with advice from UNEP and

WWF, 1980. 132 The World Commission on Environment and Development, Our Common Future (Oxford University Press:

New York, 1987). Sustainable development is defi ned by the WCED (at 43) as: ‘Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains two key concepts:• the concept of “needs”, in particular the essential needs of the world’s poor, to which overriding priority

should be given; and• the idea of limitations imposed by the state of technology and social organization on the environment’s

ability to meet present and future needs.’


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sustainable development’.133 Broadly speaking, the debate on the compatibility between environmental justice and sustainable development is divided into two camps: one argu-ing that a nexus and similarities exist between the two concepts; the other arguing that the two concepts are incompatible. As a general observation, it can be argued that the camp arguing against compatibility is mainly grounded in theoretical thinking, whereas the camp supporting an argument of co-existence partly rests on more pragmatic argu-ments.

Andrew Dobson emerges as the most credible advocate for the argument against compat-ibility between sustainable development and environmental justice. Dobson argues that, on the theoretical level, the two concepts are incompatible and notes that while the two concepts ‘will cross at important points, they by no means always travel the same road, and they may not even always head in the same normative direction as far as distribu-tive issues are concerned’.134 This assumption rests on an interpretation of sustainable development that emphasises environmental sustainability rather than development.135 Dobson sees sustainable development as merely one conception of the broader environ-mental sustainability, while criticising the WCED defi nition for being too eclectic and vague.136 When emphasising environmental values and sustainability over concerns for human development and well-being, it is perhaps not surprising that Dobson reaches the conclusion that the two concepts are incompatible. Thus, Dobson’s argument of incom-patibility is best interpreted in light of his dismissal of the defi nition of sustainable devel-opment developed by the WCED. It is by now well established that this defi nition is widely considered to encompass three main strands. These are: (i) economic development; (ii) environmental protection and conservation; and (iii) human equity.137 Therefore, where such a defi nition is partly insuffi cient to environmental justice activists, as it places equity concerns on an equal footing with the environment and economic development, it is equally unacceptable to Dobson, who would like to see the environmental concerns gain-ing the upper hand. Such differences are perhaps more stark where sustainable develop-ment is interpreted as emphasising ecological sustainability. Bosselmann, for instance, sees the social equity side of sustainable development as being secondary to ecological ‘sustainability’.138 Such approaches seem diffi cult to align with a concept of environmen-tal justice focusing on equality. But, on the other hand, an environmental justice defi ni-tion which entails notions of eco-justice, as noted above, arguably accommodates such differences.

Apart from the differences between environmental justice and sustainable development in the weight attached to equity, the two concepts also differ in geographical scope. Whereas environmental justice started out by focusing on local issues and struggles, sustainable development emerged from the setting of international diplomacy.139 In addition, envi-ronmental justice came about mainly thanks to a bottom-up approach, unlike sustain-

133 Art. 11 TFEU.134 A. Dobson, Justice and the Environment Conceptions of Environmental Sustainability and Dimensions of

Social Justice (Oxford University Press: Oxford, 1998) 26.135 Ibid. at 58–61.136 Ibid. 137 J. B. Ruhl, ‘The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, then

Competition, then Confl ict’ (1998) 9 Duke Envtl. L. & Pol’y F. 161 at 180.138 K. Bosselmann, The Principle of Sustainability: Transforming Law and Governance (Ashgate: Aldershot,

2008). See also A. Ross, ‘Modern Interpretations of Sustainable Development’ (2009) 36(1) Journal of Law and Society, both relying on the Earth Charter.

139 See Dobson, above n. 134 at 16.


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able development, which was largely developed through a top-down structure.140 This difference is highlighted by the fact that sustainable development often varies from the local to the international setting, which in itself may have environmental justice implica-tions. For instance, international or regional agreements deciding on the allocation of natural resources, based on assumptions of sustainable development, can easily have serious distributive effects at the local level, which could make it a matter of environmen-tal justice.141 Similarly, where strong local opposition to certain facilities, a trademark of environmental justice, simply leads to the disputed facility being sited in another neigh-bourhood, the local opposition appears to have done little for the cause of sustainable development and its long-term focus. However, the opposite situation may easily occur – for instance, where local knowledge, know-how and work are utilised to preserve habitats or animals in a sustainable manner.142

Although the two concepts can be said to vary in geographical scope, there are indications that this is starting to change. In this light, it may be asserted that sustainable develop-ment is the broader of the two concepts.143 This assertion has led some to argue that, in the long run, sustainable development will ‘get the better of’ environmental justice as sustainable development is more adaptive and less ideological.144 Not only has sustain-able development found application at national as well as regional and local levels, but environmental justice is increasingly being applied to the international scene. This is particularly clear in the area of climate change, where arguments of ‘climate justice’ play a role in the debate as to which countries ought to shoulder responsibilities.145

Finally, as with the precautionary and polluter pays principles, it is possible that a strong adherence to sustainable products and solutions may lead to results that confl ict with ideas of environmental justice. It has been argued that the broad focus on environmen-tally friendly solutions in the name of sustainable development – for instance, in the production of housing and commodities – will lead to situations where sustainability only reinforces already existing patterns of social inconsistencies.146 This is seen where sustainable commodities or housing are too expensive for the less well off social groups, who in turn become caught in an environmentally damaging pattern of consumption.

On the other hand, and in spite of the various theoretical incompatibilities and differ-ences in scope, some obvious areas of consensus do exist between environmental jus-tice and sustainable development. First, it might be argued that they depend on each other to the degree that one is not possible without the other. This assumption rests on the notion that sustainable development is, generally speaking, the overarching policy of which environmental justice might be seen as being a part. This is, for example, seen in the campaigning for environmental justice in the UK, where Friends of the Earth Scot-land (FoES) argue that sustainable development is not attainable without environmental

140 See also J. Agyeman, R. D. Bullard and B. Evans, ‘Exploring the Nexus: Bringing Together Sustainability, Environmental Justice and Equity’ (2002) 6(1) Space & Polity 77 at 88.

141 See, for example, Donald T. Hornstein, ‘Environmental Sustainability and Environmental Justice at the International Level: Traces of Tension and Traces of Synergy’ (1998) 9 Duke Envtl. L. & Pol’y F. 291 at 297–298.

142 Ibid. 143 Ruhl, above n. 137 at 163 and 171.144 Ibid. at 165–166. Ruhl argues that in that process sustainable development will have adopted some of the

key issues from environmental justice.145 See below n. 182.146 Fisher, above n. 114 at 202–203.


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justice.147 This assertion is to some extent backed by the emergence of the concept of ‘just sustainability’.148 ‘Just sustainability’ rests on a defi nition of sustainable develop-ment which is different from the one put forward by WCED, as sustainable development is defi ned as ‘the need to ensure a better quality of life for all, now and into the future, in a just and equitable manner, whilst living within the limits of supporting ecosystems’, with-out being seen as a rigid and absolute paradigm.149 Thus, ‘just sustainability’ emphasises the interdependence of social justice, economic well-being and environmental steward-ship, while focusing on the creation of sustainable communities able to facilitate global changes.150 A central focus of the concept is on proactive agendas that aim to address environmental questions early on rather than, as in the case of some of the early environ-mental justice struggles, focusing only on reactive questions of siting.151 Under the head-ing ‘just sustainability’ it is argued that the approach taken by, inter alia, FoES is evidence of the compatibility between environmental justice and sustainable development.152

While caution should be exercised when emphasising the importance of a campaign slogan of an NGO, it is evident that Agyeman, Bullard and Evans have a good point when they argue that ‘there are encouraging signs that this constructive dialogue is emerg-ing [between the two camps of environmental justice and sustainable development], and it is our contention that this is both essential and overdue’.153 Likewise, although such approaches are non-legal and taken in a social science context, they have strong merit in discussions on the compatibility between sustainable development and environmental justice, given the interdisciplinary and exceptionally broad nature of both concepts.

When sustainable development is interpreted in the way it is by Agyeman et al. – that is, with a focus on improving social living conditions – the room for co-existence between sustainable development and environmental justice becomes evident.154 This interpreta-tion, however, may not be all that far away from the ‘original’ defi nition developed by the WCED in 1987. For instance, it has been argued that the many subsequent interpretations of sustainable development have overemphasised the meaning of economic growth and in that process left behind other central aspects of the WCED Report.155 Langhelle argues that, although the economic message in WCED is important, it is not the only message in the Report.156 He convincingly argues that the defi nition of sustainable development developed in WCED is in fact one leaning towards a socio-economic ideal, with the con-cept of ‘needs’ at its core. The striving to fulfi l the needs of all mankind’s development is the overarching goal, only restricted by the (rather large) caveat that the development has

147 See E. Scandrett, K. Dunion and G. McBride, ‘The Campaign for Environmental Justice in Scotland’ (2000) Local Environment 5(4) 467–474. However, the correctness of such assertions is at best doubtful as it is diffi cult to see, at least on a theoretical level, why sustainable development should not be possible without social justice. Again, this depends on the interpretation of sustainable development, but where it is taken to mean environmental sustainability it can be argued that, for instance, dictators and despots can pursue, and have throughout history pursued, aims of environmental preservation without adhering to norms of social justice. See Dobson, above n. 134 at 5.

148 See J. Agyeman and B. Evans, ‘“Just Sustainability”: The Emerging Discourse of Environmental Justice in Britain’ (2004) 170(2) The Geographical Journal 155.

149 J. Agyeman, Sustainable Communities and the Challenge of Environmental Justice (New York University Press: New York, 2005) 6.

150 Ibid. at 89.151 Ibid. at 3.152 See also Agyeman, Bullard and Evans, above n. 140 at 77. 153 Ibid. at 88.154 Ibid. at 80–81.155 See O. Langhelle, ‘Sustainable Development: Exploring the Ethics of Our Common Future’ (1999) 20

International Political Science Review 129. 156 Ibid. at 130.


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to be sustainable.157 Thus, a notion of social justice is seen as ‘built-in’ to the defi nition of sustainable development.158 Obviously such interpretations of sustainable development can be criticised for being too anthropocentric and for not taking account of the envi-ronment.159 However, to this it might be argued that the WCED defi nition of sustainable development calls for conservation of development, not for the conservation of the envi-ronment, meaning that environmental considerations are in place, but they are not the overarching aims of sustainable development.160

Alongside these arguments of common ground, it is worth also noting the more practi-cal similarities between sustainable development and environmental justice. From the outset, environmental justice has been shown to be about procedural aspects as well as distributive ideas. These procedural aspects include public participation, access to infor-mation and access to justice, and are familiar aspects of sustainable development. For instance, Agenda 21, the action plan for the national implementation of sustainable devel-opment, holds specifi c recommendations on these measures.161 Agenda 21 declares that states should promote public participation,162 access to environmental information,163 and secure access to redress procedures for environmental decisions.164 In addition, Agenda 21 holds specifi c chapters on the importance of the inclusion of women, indig-enous groups and communities, and NGOs,165 as well as the promotion of local Agenda 21 as a strategy for sustainable development at the local level.166 These chapters all encap-sulate aspects that are equally important to environmental justice. Similarly, the Johan-nesburg Declaration on Sustainable Development touches upon some of the common themes between sustainable development and environmental justice when it recognises the need for an ‘equitable ... society’ while ‘reinforcing ... social development and environ-mental protection – at the local, national, regional and global levels’.167

In addition, support for the importance of these procedural mechanisms can be found in the discussion on the legal status of sustainable development in international law. Although it is doubtful whether states are under any obligations under international law to adhere to a principle of sustainable development when carrying out development, it has been argued that certain procedural obligations curbing various aspects of develop-ment do arise.168 These mainly relate to carrying out environmental impact assessments

157 Ibid. at 132–133.158 Ibid. at 139. See also O. Langhelle, ‘Sustainable Development and Social Justice: Expanding the Rawlsian

Framework of Global Justice’ (2000) 9 Environmental Values 295. 159 See, for example, A. Ross, ‘Is the Environment Getting Squeezed out of Sustainable Development?’ (2003)

Public Law 249 (with reference to the UK); and D. Wirth, ‘The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa’ (1995) 29 Georgia Law Review 599 (in general).

160 Langhelle, above n. 155 at 134.161 The UN Programme for Action from Rio, ‘Agenda 21: Programme of Action for Sustainable Development’

(1992). The principle of public participation was also reaffi rmed as part of sustainable development in the ‘New Delhi Declaration of Principles of International Law Relating to Sustainable Development’ by the International Law Association in April 2002, Resolution 3/2002, and in the ‘Johannesburg Principles on the Role of Law and Sustainable Development’ by the Global Judges Symposium on Sustainable Development and the Role of Law in August 2002; see (2003) 15 Journal of Environmental Law 107.

162 Agenda 21, above n. 161, para. 7.3.163 Ibid., para. 8.4.164 Ibid., para. 8.7.165 Ibid., Chapters 24, 26 and 27.166 Ibid., para. 28.3.167 Johannesburg Principles, above n. 161.168 See A. Boyle and D. Freestone, ‘Introduction’ in A. Boyle and D. Freestone (eds), International Law and

Sustainable Development, Past Achievements and Future Challenges (Oxford University Press: Oxford, 1999) 16–17.


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(EIAs) and to facilitate public participation in relation to decisions harming the environ-ment. In particular, the latter procedure of public participation is integral to environmen-tal justice, which further supports an argument of common ground between sustainable development and environmental justice.

Another more practical argument supporting the co-existence between environmental justice and sustainable development is the fact that, at policy level, evidence of the merg-ing of the two concepts is starting to develop. This trend is taking place in the UK, where the UK Government and the devolved administrations combine policy objectives of sus-tainable development and environmental justice and thus, to some extent, fall in line with the approach taken by, for instance, FoES.169 This combination is seen in the strategies for sustainable development at the central level, where the UK Government recognises the problem of environmental inequalities,170 and at the devolved level, where the Welsh strategy for sustainable development notes that it is based on social justice.171 The North-ern Irish strategy notes that sustainable development in Northern Ireland must support environmental justice.172 In Scotland, the Scottish Executive (now the Scottish Govern-ment), under the previous administration, dedicated an entire chapter to environmental justice within its sustainable development strategy (although the change in regime at Holyrood has since largely rendered this approach and strategy extraneous).173 Although political initiatives like these are perhaps not necessarily defi nite confi rmation that the two concepts share a common ground, it is a clear indication that, at least on a political level, the two concepts are seen as intertwined.

The links between sustainable development and environmental justice are perhaps best highlighted through the concept of common but differentiated responsibility (CBDR) – a concept strongly linked to sustainable development. CBDR rests on the assumption that the application of equivalent environmental standards between developing and devel-oped countries is inappropriate because of differences in the level of development and capacities to deal with environmental problems. CBDR played an important role in, inter alia, the making of the 1992 UNFCCC174 and its 1997 Kyoto Protocol.175 Article 3 of the UNFCCC states that parties should protect the climate system on ‘the basis of equity and in accordance with their common but differentiated responsibilities’.176 In this process, the developed countries are to take the lead, and the ‘special needs and circumstances of developing countries’ and those that are ‘particularly vulnerable’ should be given special consideration.177 In addition, the Convention is rich in provisions laying down rules for the transfer of technical and fi nancial assistance from developed to developing coun-tries.178 Most importantly, the Kyoto Protocol does not explicitly create any new obliga-

169 See also J. Agyeman and T. Evans, ‘Toward Just Sustainability in Urban Communities: Building Equity Rights with Sustainable Solutions’ (2003) 590 ANNALS; AAPSS, November 35, referring to similar trends at community level in the US.

170 HM Government, ‘Securing the Future – Delivering UK Sustainable Development Strategy’ (2005) 134. 171 Welsh Assembly Government, ‘Sustainable Development Action Plan’ (2004) 49.172 Northern Ireland Government, ‘First Steps Towards Sustainability’ (2006) 6, and S. Turner, ‘Laying the

Foundations for a Sustainable Northern Ireland: The Review of Environmental Governance’ (2007) 58(4) Northern Ireland Legal Quarterly 446–450.

173 Scottish Executive, ‘Choosing Our Future’ (2006) 40. See, however, Sustainable Development Commission Scotland, Sustainable Development: A Review of Progress by the Scottish Government (2008) 12.

174 United Nations Framework Convention on Climate Change, above n. 69. 175 Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998) 37 ILM 32. See

also L. Rajamani, Differential Treatment in International Environmental Law (Oxford University Press: Oxford, 2006) 179–191.

176 UNFCCC, above n. 69, Art. 3 and 3(b).177 Ibid., Art. 3(b).178 Ibid., Art. 4(3), 4(4), 4(5) and 4(8)–(10).


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tions for developing countries and plainly excludes them from its core obligations.179 The fact that the Protocol explicitly excludes developing countries from primary obligations is, in itself, a signifi cant indication of the importance attached to the notion of differenti-ated responsibility.180

This strong emphasis throughout the Convention and Protocol on differential treatment of developed countries vis-à-vis developing countries implies noteworthy considerations of fairness and equity.181 Whether this then amounts to a central notion of ‘climate justice’ is perhaps less certain; Brunnée argues that the notion of differentiated responsibility in the climate regime plays an important role in framing a debate about ‘climate justice’, but does not currently constitute a global principle of ‘climate justice’.182 The argument is, inter alia, based on the fact that, in order for an internationally shared principle of ‘climate justice’ to emerge, a common understanding of such a principle must exist.183

From the foregoing analysis it is thus clear that the two concepts of environmental justice and sustainable development differ in some areas, while at the same time sharing some common ground. Although this appears to be self-contradictory, the verdict on whether the concepts are confl icting or consistent greatly depends upon the interpretation chosen of the two principles, in particular that of sustainable development. Similarly, the great variety in interpretations is no doubt down to the broad acceptance that sustainable development has received, which arguably is attributable to the relative vagueness of the concept. In this light, it can be argued that the two concepts have to a great degree benefi ted from each other: environmental justice has benefi ted from the broad political acceptance that sustainable development has enjoyed and sustainable development has benefi ted from the relative intensity and force of the environmental justice argument.184 Furthermore, it can be argued that where one reaches the conclusion that the two con-cepts can co-exist, they may supplement each other.

7. CONCLUSIONThis paper has intended to analyse the compatibility between the concept of environmen-tal justice and the infl uential environmental principles of the precaution, prevention, the polluter pays and sustainable development. The overall fi ndings indicate that the four principles give rise to confl ict as well as consensus. As for the precautionary principle, it was revealed that a reliance on risk assessment and risk management can lead to confl ict with norms of public participation, involvement and popular epidemiology. On the other hand, the part of the precautionary principle that argues in favour of reversing the burden of proof (notwithstanding the uncertain legal signifi cance this has) so that the polluter will have to show that the activities are not harmful strikes a chord with environmental justice arguments.

179 Ibid., Art. 10(1). See also D. French, ‘1997 Kyoto Protocol to the 1992 UN Framework Convention on Climate Change’ (1998) 10(2) Journal of Environmental Law 229–231.

180 Rajamani, above n. 175 at 194. 181 T. M. Franck, Fairness in International Law and Institutions (Clarendon: Oxford, 1995) 380–386. See also

D. Shelton, ‘Equity’ in D. Bodansky, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press: Oxford, 2007) 650, and K. Mickelson, ‘Competing Narratives of Justice in North-South Environmental Relations: The Case of Ozone Layer Depletion’ in Ebbesson and Okowa (eds), above n. 116, for wider discussions on CBDR.

182 J. Brunnée, ‘Climate Change, Global Environmental Justice and International Law’ in Ebbesson and Okowa (eds), above n. 116, emphasis added.

183 Ibid.184 Ruhl, above n. 137 at 178.


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Likewise, it was found that for the principle of prevention congruence and differences exist. These mainly related to the use of cost–benefi t analysis by authorities when assess-ing the need for action. One point worth noting here, however, is that much of the envi-ronmental justice criticism levied at both risk assessment and cost–benefi t analysis stems partly from the principles being applied inappropriately. Thus, such misunderstandings are easily addressed.

As for the polluter pays principle, it was argued that the principle’s initial focus on a ‘free market’ approach could lead to ideological disputes with environmental justice activists. However, the part of the polluter pays principle that allows for full cost allocation of social costs as a way of establishing the polluter’s liability, resonates well with environ-mental justice considerations.

As for the concept of sustainable development, it was argued that, on a theoretical level, the two concepts may not necessarily share a common basis. Although such arguments very much depend upon the approach taken to sustainable development, it was argued that the two concepts share numerous considerations. Both concepts emphasise pro-cedural mechanisms as ways of achieving their respective goals. At the same time, an argument of consensus is supported by the fact that a linking of the two is already, and increasingly, taking place.

Thus, it is evident that, for the infl uential principles of environmental law and policy-making, the relationship with environmental justice is one of diversity and variation, as well as accordance and agreement. This conclusion is perhaps not surprising, as none of the principles or environmental justice can be said to be either absolute or supreme, just as it may be argued that to a great degree the principles seem to overlap one another. Most importantly, though, environmental justice as a concept provides a framework for the probing of established environmental law and policy norms and concepts. It is sub-mitted that such a contribution is very welcome. On the other hand, the inherent vague-ness of, and many different approaches to, environmental justice may lead to some ques-tioning its utility and relevance. The same can be said for some of the environmental principles. Here, however, it is clear that ambiguity has far from eliminated neither the infl uence of environmental justice nor that of the environmental principles. One will only have to look to the US to witness the strong infl uence exercised by the environmental justice movement and to the pervasiveness of the principle of sustainable development to acknowledge their respective authority.

Although such vagueness is perhaps frustrating, it is inevitable in light of the interdiscipli-nary and broad nature of both environmental justice and, for instance, sustainable devel-opment. In light of this, one point remains to be made. As the concept of environmental justice is emerging in the UK and is starting to demand attention from policy-makers and lawyers alike, it is important to constantly and critically assess calls made for environ-mental justice. Unfortunately, with vagueness comes the possibility of abuse and exploita-tion and the otherwise worthy goal of environmental justice deserves better.

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Pedersen Environmental Principles and Enviro Justice

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