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Procedural Environmental Justice

Abstract: Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called meaningful involvement in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision-making. Especially in the environmental arena, regulatory decisions are often buried among engineering analyses or modeling assumptions.

This Article theorizes and calls for an empowered participatory process—one that provides environmental justice communities (those that are disproportionately exposed to pollution) with the consultation and technical expertise needed to bolster the authority of their lived experiences in order to substantively influence regulatory outcomes. While scholars and advocates have rightly foregrounded certain disparities in regulatory outcomes (for example, decisions about where facilities should be located and where enforcement resources are invested), far less attention is paid to the decision-making process that governs what pollution controls can, should, or must be installed. Yet these decisions legalize acceptable levels of pollution that a community must bear and sanction those levels for a generation to come. Environmental justice communities can—if properly supported—push back against inadequate or cursory approvals of what controls are implemented to reduce or avoid pollution. They can even press for better or alternative controls, buttressing recommendations with technical advocacy. Ultimately, this support can help improve administrative decision-making and reinforces a central tenet of the environmental justice movement—that communities be empowered to speak for themselves.

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