Environmental Justice
Chapter Fifty-One
Syllabus topic 2, "Development"
Pages 209 to 212 of 595
In one line
Environmental justice is the claim that the burdens of environmental damage and the benefits of environmental protection should not fall according to how poor or how powerless a person is.
In the wording a student can write in an exam: environmental justice requires the fair distribution of environmental burdens and benefits, and the fair treatment and meaningful involvement of all people in environmental decision-making. It has a distributive limb, about who bears the harm; a procedural limb, about who is heard; a corrective limb, about who is compensated; and a recognition limb, about whose knowledge and way of life is treated as counting.
Where the idea came from
The phrase originated in the United States in the 1980s, from the observation that hazardous facilities and waste sites were disproportionately sited in poor and minority neighbourhoods, and that the pattern held after controlling for other variables. What began as a complaint about siting became a general framework about the distribution of environmental risk.
Its Indian form is different in an important way. In India the primary axis is not siting alone but access: who has piped water, who has sanitation, who cooks on solid fuel, whose land is acquired, whose forest is diverted, whose settlement is cleared. The framework is the same and the facts are different, and an answer that simply transplants the American account has missed that.
The four limbs
Distributive. Who bears the harm and who takes the benefit. The people who live beside a polluting estate are not usually its owners. The households displaced by a dam are not usually the ones that get the irrigation. The workers in a quarry closed by an order are not the beneficiaries of the watershed protected.
Procedural. Who is heard before the decision. This is Rio Principle 10, with its three limbs of access to information, participation in decision-making and access to justice. In India its expressions are the Right to Information Act 2005, the public hearing in the environmental impact assessment process, and the relaxed standing that makes Articles 32 and 226 available.
Corrective. Who is compensated afterwards, and how quickly. Absolute liability and the polluter pays principle sit here, and so does the Public Liability Insurance Act 1991 with its no-fault immediate relief.
Recognition. Whose knowledge and whose relationship with a resource is treated as legitimate. This is where the forest rights and traditional knowledge material belongs, and it is the limb most often omitted from an answer.
The relationship with sustainable development
MU's question asks for the interrelationship, so state it directly.
They are the same idea seen along two axes. Sustainable development is principally about distribution across time, between generations. Environmental justice is principally about distribution across people now. Intergenerational equity and intragenerational equity are the two, and both are on the Supreme Court's list of the salient features of sustainable development.
Environmental Justice
Each is incomplete without the other. A programme that protects the future while ignoring who pays for the protection today is not sustainable in any political sense, and the Dehradun and Taj Trapezium orders show Indian courts recognising that. A programme that distributes fairly today while exhausting the resource base is not sustainable at all.
The Brundtland Report makes the connection explicit. Its definition gives overriding priority to the essential needs of the world's poor, which is a distributive instruction inside a definition about the future.
In the Sustainable Development Goals
The 2024 paper asks for the relationship "in the light of sustainable development goals at global level", so use them.
Goal 10, reduce inequality within and among countries, is the distributive limb stated as an objective.
Goals 6 and 7, on water and sanitation for all and on affordable, reliable, sustainable and modern energy for all, are about access, and the words "for all" are where the justice claim sits.
Goal 11, on inclusive, safe, resilient and sustainable cities, names slums and so names the population that bears the urban environmental burden.
Goal 13 on climate concerns a harm whose burden falls hardest on those least responsible for it, which is the clearest global instance of environmental injustice.
Goal 16, on access to justice for all and effective, accountable and inclusive institutions, is the procedural limb.
The Indian material
Three things to cite, and they are all in this book.
Article 21 with relaxed standing. The right to a wholesome environment would be worth little to the people most exposed to environmental harm if it could be enforced only by those able to bring a suit. Public interest litigation, and the treatment of a letter as a petition, is the procedural limb of environmental justice in its Indian form.
The remedies that provide for the losers. The Taj Trapezium orders directed continuity of employment, a shifting allowance and a year's wages for workmen whose industry closed. The Dehradun litigation said in terms who was paying the price. The Narmada order made construction conditional on rehabilitation.
The recognition statutes. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, whose preamble describes the extinguishment of customary forest rights as a historical injustice, and the Biological Diversity Act 2002 with its benefit-sharing provisions.
What environmental justice does NOT mean
It is not a rule of law. No Indian statute uses the phrase and no judgment turns on it as a doctrine. It is a framework for analysing distribution, and its legal expressions are Articles 14 and 21, the participation requirements and the compensation rules.
Environmental Justice
It is not only about siting. The Indian axis is access and dispossession at least as much as location.
It is not the same as environmental protection. A perfectly protected environment can be perfectly unjust, if the protection is achieved by excluding the people who depended on the resource.
Worked example
A cement plant, a waste transfer station and a highway are all sited within two kilometres of the same settlement. The settlement is the poorest ward in the city, most of its residents belong to the same disadvantaged communities, and none of the three facilities serves it: the cement goes to construction elsewhere, the waste comes from wealthier wards, and the highway has no exit near it.
Ask the three questions environmental justice asks.
Distribution: who bears the harm? People who consume least of what produces it. The ward's own contribution to the waste stream is a fraction of what the transfer station handles.
Procedure: who decided? Each siting was a separate decision by a different authority, and the residents were not heard in any of them, partly because the settlement is not a sanctioned layout and so does not exist on the maps used.
Recognition: whose objection counts? An objection from a wealthier ward would have been made through a residents' association with a lawyer. This ward has neither.
Now the legal handles, and note how each maps to one of the three questions.
Article 14 answers the distribution question, and M.K. Ranjitsinh is the modern authority for treating an unequal burden as an equality question rather than only as an arbitrariness question.
Article 21 answers the harm, on Subhash Kumar and Virendra Gaur.
The appraisal process answers the procedure question, and on Hanuman Laxman Aroskar an assessment that does not disclose material facts vitiates the clearance built on it, the process being due diligence and not a formality. An assessment that does not record the settlement's existence is exactly that.
And standing answers the recognition question, because on S.P. Gupta a person or body may bring the case for a class that cannot come by reason of poverty or disadvantaged position.
The point to make. Each of the three sitings may have been individually defensible. Environmental justice is about the cumulative result of separate reasonable decisions, and no single clearance process in India asks what else is already there.
Quick revision
- Four limbs: distributive (who bears the harm), procedural (who is heard), corrective (who is compensated), and recognition (whose knowledge counts).
- Sustainable development distributes across time; environmental justice distributes across people now. Intergenerational and intragenerational equity are the two, and both are on the Vellore list.
- Rio Principle 10 is the procedural limb: information, participation and access to justice. In India: the Right to Information Act 2005, the public hearing, and Articles 32 and 226.
- In the Goals: 10 for inequality, 6 and 7 for access, 11 for slums, 13 for a burden falling on those least responsible, and 16 for access to justice.
- Indian material: relaxed standing under Article 21, the remedies that provide for the losers in the Taj Trapezium and Narmada orders, and the recognition statutes of 2002 and 2006.
- It is not a rule of law in India, and a protected environment can still be an unjust one.
Environmental Justice
Test yourself
1. Name the four limbs of environmental justice and give an Indian example of each.
Distributive, illustrated by the households displaced by a dam who are not the ones who receive the irrigation. Procedural, illustrated by the public hearing in the environmental impact assessment process and by relaxed standing under Articles 32 and 226. Corrective, illustrated by absolute liability and by the immediate no-fault relief under the Public Liability Insurance Act 1991. And recognition, illustrated by the Forest Rights Act 2006, whose preamble treats the extinguishment of customary forest rights as a historical injustice.
2. State the relationship between environmental justice and sustainable development.
They are the same distributive concern along two axes. Sustainable development distributes principally across time, between the present generation and future ones. Environmental justice distributes principally across people alive now. Both appear on the Supreme Court's list of the salient features of sustainable development, as intergenerational and intragenerational equity, and the Brundtland definition itself gives overriding priority to the essential needs of the world's poor.
3. Which Sustainable Development Goals carry the environmental justice claim, and how?
Goal 10 on reducing inequality within and among countries states the distributive limb as an objective; Goals 6 and 7 on water, sanitation and energy "for all" state the access claim; Goal 11 names slums and so identifies the population bearing the urban environmental burden; Goal 13 concerns a harm falling hardest on those least responsible; and Goal 16 on access to justice states the procedural limb.
4. Why is it wrong to say that environmental protection and environmental justice are the same thing?
Because a perfectly protected environment can be perfectly unjust. Protection achieved by excluding the people who depended on the resource, or by closing an industry without providing for its workers, secures the environmental objective and distributes its cost onto those least able to bear it. That is why the Indian orders that provided for displaced workers are the interesting ones.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.