Wednesday, November 9, 2011

Environmental Human Rights: Will the US Come on Board?

by Elizabeth Gibson

Most Americans probably assume that if a factory opened in their neighborhood and started discharging a toxic cloud, the government would turn up and yank the company’s permits. In reality, although the international community has increasingly recognized a human right to a sound environment, U.S. law is not always as helpful as one might think.

Factories pile up where the land is cheap and communities lack the political clout to defend themselves. Studies, including this frequently cited report, have shown that the vulnerable – the poor, minorities and indigenous tribes – bear the brunt of environmental hazards and the effects of climate change.  Mossville, Louisiana, originally settled by emancipated slaves and now encircled by more than a dozen factories, is a prime example. According to government tests, residents have three times the normal level of the carcinogen dioxin in their blood.

After decades of looking to U.S. agencies for support, Mossville had enough and its residents decided to try something new. In 2005, they took the United States to the Inter-American Commission on Human Rights, alleging in their petition that they had exhausted U.S. law but had not found recourse for environmental human rights violations.

There is still a long way to go, but cases like the one out of Mossville, which is still pending, are just beginning to explore the concept of environmental human rights and how they compare with domestic law. There are signs that a framework for the protection of environmental human rights is slowly emerging at the international level, both with new treaties and the assertion of implied rights in old treaties.

In search of alternatives

Advocates for Environmental Human Rights, the counsel in the Mossville case, sees international law as a new angle to an old problem. Co-director and attorney Monique Harden said she traces her awareness of the international human rights approach to an environmental justice tribunal in 1998.

A witness testified that she felt that what she and her family had been through because of pollution was tantamount to a violation of their human rights. That got advocates thinking that maybe the phrase “human rights violation” was legally accurate.

Mossville is a predominantly black community founded in the 1790s by former slaves. Since emancipation, pollution has become the new bar to a full life. According to the petition:

“[One petitioner,] Ms. Cole remembers Mossville as a thriving, healthy community where the poorest of poor could live and prosper . . . At the original time of purchase, Mrs. Cole’s family property was a pristine wooded area that the family worked hard to develop. Now all fourteen industrial facilities are located approximately 3.2 kilometers (2 miles) from her home.”

More than a decade later, Harden and her colleagues are seeing the first signs of success for Mossville.

The residents, organized as Mossville Action Now, allege a dizzying list of ailments caused or aggravated by pollution, and many residents continue to live there because they cannot afford the cost of relocating. One parody of a front-yard sale sign proclaimed: “House for Sale: 4 bedrooms, 2 baths, CAUTION: CONTAMINATED GROUNDWATER.”

"There are people that are getting sick; there are people who are dying because of what is happening in our community. These chemicals are killing us. They will destroy Mossville if nothing happens, third-generation resident Dorothy Felix told CNN.

In the petition, residents are asking for medical assistance, help relocating, and legislative change.

To successfully petition the Commission, residents had to make the case that no remedy exists within U.S. legal system. The government’s response said the domestic system had not been exhausted, pointing out that Mossville residents actually have won some court battles. It said the United States thinks the link between the environment and other rights is important, but the petition is erroneously “equating ideals with legal obligations.”

The government response also argued that the Commission does not have jurisdiction over the United States, but the Commission still decided to accept jurisdiction last year, and in doing so foundthat domestic legal recourse had been exhausted.

The gaps in domestic law

In order to understand the implication of that ruling, it’s helpful to look at what the domestic legal framework actually offers a community like Mossville. Norms may be changing in the United States, with the government increasingly pushing for “environmental justice,” but U.S. environmental laws are still deficient in many ways (see Government Accountability Office report).

There has been plenty of debate on whether the Clean Air Act, the Clean Water Act, and other legislation sufficiently cap pollution. Suffice it to say the laws could do a lot more to regulate aggregate pollution from multiple toxins or multiple companies, and it would be sensible to require space buffers between industrial factories and residential areas.

The law limits the total toxins produced within large geographic regions in the United States. The problem is that nothing says the polluters have to cut back their toxin output to limit the local aggregate effect if two, or even ten, set up shop next to each other. In the United States, whether factories can be built is typically a matter left to local zoning boards.

American officials have been talking about the problem and how to balance it with industrial interests for decades now, but advocates and government officials say the “environmental justice” movement finally seems to be reaching critical mass. Environmental justice examines the issue of pollution in marginalized communities through the lens of discrimination against the poor and minorities. (for more on this, I suggest this  Huffington Post article.)

In 1994, Bill Clinton issued an executive order on environmental justice, telling agencies to support equal protection under the law and nondiscrimination where federal funds are used. Over the next 15 years, there was much research, meetings with affected communities, and discussion among policy makers. The National Environmental Justice Advisory Council was formed to find a way forward with a mix of experts, agencies, business interests and advocates.

In a memorandum of understanding this summer, the Environmental Protection Agency, the Department of Health and Human Services, the Department of Justice, and others renewed the push for environmental justice and agreed each department would put environmental justice strategies in writing by February 11, 2012.

All this has been productive, but there has been little substantive reform.

A memorandum of understanding is still just a memorandum of understanding. It’s not the same as comprehensive reform legislation passed by the House and Senate with the president’s signature decorating the bottom.

As the law stands, communities like Mossville are looking elsewhere for remedies. While the Inter-American Commission has been waiting for the parties in Mossville to submit their briefs, another environmental human rights case against the United States has been filed with the commission. In that case, a Navajo community is fighting a uranium mining project with concerns, among others, that the mining will contaminate groundwater.

The success or failure of these suits and others like them hinges on the scope of protection offered by the human right to a safe and clean environment. Understanding this requires a closer look at the international law.

The international framework

The international community has in some cases begun to explicitly recognize a sound environment as a human right, through regional treaties, international courts, and the use of existing treaties that may imply environmental rights.

Regional treaties have implemented some of the most overt environmental protections. The American Convention on Human Rights and the African Charter on Human and People’s Rights both address the environment directly.

The African convention, which went into effect 15 years ago, obviously does not apply to the United States, but it shows the increasing interest in environmental issues. Article 24 of the African charter asserts, “All peoples shall have the right to a general satisfactory environment favorable to their development.”

The basic protections in the American treaty, meanwhile, were strengthened by a supplemental protocol that took effect in 1999. Under the San Salvador Protocol:
“1. Everyone shall have the right to live in a healthy environment and to have access to basic public services.
“2. The States Parties shall promote the protection, preservation, and improvement of the environment.”
The treaty applies to the members of the Organization of American States (OAS). Unfortunately, although the United States is a member of the OAS, it has not ratified the body’s human rights conventions, including the protocol. However, the Inter-American Commission on Human Rights, which conducts quasi-judicial review of violations, asserts that it has jurisdiction to apply at least the American Convention on Human Rights to all OAS members. That is why the Mossville suit has moved forward over the objections of  the U.S. government.

In addition to the regional conventions, there are a handful of other international human rights treaties that mention the environment, including the Declaration on the Rights of Indigenous Peoples and the Convention on the Rights of the Child. The United States and Somalia continue to be the only United Nations members that have not signed the latter convention.

There have been efforts to draft comprehensive international treaties on environmental human rights with limited success.

The 1992 Rio Declaration on Environment and Development laid out principles for environmentally conscious development, and in 1994 a group of experts came together in Geneva to write the Draft Declaration of Human Rights and the Environment.

The case for implied environmental human rights

Beyond explicit references to the environment in human rights treaties, there are also several provisions of more general treaties that can be interpreted as implying environmental human rights.

Last year, the United Nations general assembly passed a resolution asserting that there is a human right to clean water and sanitation. The resolution recognized that it was not inventing a new right, but rather confirming the presence of the right in existing treaties.

The resolution acknowledged “the importance of equitable, safe and clean drinking water and sanitation as an integral component of the realization of all human rights.”

The Mossville petition has taken this approach, and relies  on the rights to life, health, freedom from discrimination, and privacy in the sanctity of the home.

Article 25 of the Universal Declaration of Human Rights protects "the right to a standard of living adequate for the health and well-being of himself and of his family." Article 3 covers: "the right to life, liberty and security of person." Mossville's petition relies on similar provisions in the American Declaration on the Rights and Duties of Man. The Inter-American Commission has previously recognized a connection between life and healthy and the environment in a 1997 human rights report on Ecuador.   
Further, because environmental distress falls disproportionately on minorities and the poor, treaties on racial and civil inequities are relevant. The United States has ratified the Convention on the Elimination of All Forms of Racial Discrimination, which requires states to guarantee equal protection in the law of rights to personal security and the enjoyment of economic rights. Most regional human rights treaties also have addressed the issue of discrimination.

As for inviolability of the home, Mossville uses articles in the American declaration on the “inviolability” of the home and a protection against “abusive attacks” on “private and family life.” There is precedent in international law for reading specific environmental protections into this right.

It may be some time before the residents of Mossville find out whether the Commission agrees and whether an opinion from the Commission will sway the United States government. It may be longer still before the United States can pin down what exactly environmental justice is and how to enforce it.

Still, many individuals have a gut instinct that people should not have to ponder whether it is the toxins in the air or the contaminants in the water that are killing them. If that is not sufficient, there is enough law to make a convincing argument for environmental human rights.

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