Understanding the Term “Environmental Justice”

Understanding the term “environment”

The term “environmental justice” belongs to a group of terms that comparative environmental law considers closely, but which are so complex that there is no consensus on what they mean in theory.

The term “environment” in theory

Defining the term environmental justice depends on how we define the term environment, ie whether it is determined from the aspect of anthropocentric, ecocentric or economic understandings of the environment. This further reflects on the question of how we define the meaning of environmental rights. The anthropocentric understanding of the environment aims to establish mechanisms of care for natural environmental relations which provide human well-being and care for the future generations. Anthropocentic environmental law aims to prevent and remedy environmental problems insofar as they affect humans.^[1024]

Ecological theories arise as a response to the dominant role of science in formulating the environmental law. Ecological theories are developed through “deep ecology”,^[1025] social ecology^{[1026] [1027] and ecofeminism.5 There are radical ideas in modern environmental law which emphasise the necessity of establishing a new branch of law — “the wild law”. According to Cullinan,}

The wild law expresses Earth jurisprudence...

Ecological theories assume that all aspects of the world have a value in the whole of nature. This theory claims that nature is of value for itself, and therefore it is necessary to establish the form that will protect environmental rights.^[1029]

An economic understanding of the environment sees environmental protection as protection of natural resources from the aspect of economic benefits. A key point is to analyse whether there is a cost of production not recognised in the final cost of the product. This can be achieved by means of cost-benefit analysis. This theoretical approach is prone to criticism. There are some harmful activities to the environment and human health that do not occur at the same time as the environmental polution activities. Those harmful activities are caused by the polution activities, so should be taken into account.^[1030] Also, the degree of violation of environment and human health must be determined.

[t]he basic problem of narrow economic analysis of health and environmental protection is that human life, health and nature cannot be described meaningfully in monetary terms; they are priceless... To say that life, health and nature are priceless is not to say that we should spend an infinite amount of money to protect them. Rather, it is to say that translating life, health and nature into dollars is not a fruitful way of deciding how much protection they should be provided with. A different way of thinking and deciding about them is required.^[1031]

The term “environmental rights” and constitutional protection

In order to determine the meaning of the term “environmental rights” in contemporary law, I will compare how the right to live in a healthy environment is normalised at the constitutional level.

The Constitution of the Kingdom of Norway distinguishes between environment and natural environment. In this sense, “every person has a right to an environment that is conductive to health and to a natural environment whose productivity and diversity are maintained.”^[1033] According to this Constitution, apart from the right to a healthy environment, environmental rights also consist of the right of every person to a life in the environment where special attention is given to the preservation of natural diversity.

According to the Constitution of Greece, the term environmental rights refers to the “natural and cultural environment”.^[1034] It includes “preservation in the context of [the] sustainability principle”, “rehabilitation of existing residental areas” and “the protection of monuments and historic areas”.

Since 2004, the Constitution of France contains the Charter for the Environment. The Charter states that “Everyone has the right to live in a balanced environment which shows due respect for the health” [of people].^[1036] Unlike the other examples already mentioned, the French Constitution does not define the environment as “healthy”, but introduces additional criteria implying “balance”, which is of such quality that it provides “due respect for the health”.

Environmental protection in the Constitution of Germany is defined in such a manner that it does not grant an actionable right to the citizens.^[1037] The Constitution stipulates the obligation of the State, ie the legislative, executive and judicial authorities, in considering its responsibility for future generations, to “protect the natural foundations of life and animals”. The Constitution of Germany does not mention the term “environment”. Article 20a, which deals with this issue, is titled “Protection of the natural foundations of life and animals”, which indicates the application of the ecocentric understanding of the environment. However, an “environmental duty” for individuals does not exist in the German constitutional system, although the obligation of individuals in environmental protection matters, in specific cases, may be established by law. ^[1038]

Statements about advancing environmental rights are found in the Constitution of the Republic of the Philippines and the Constitution of the Federative Republic of Brazil.

The influence of theories ofjustice on theories of environmental justice

From the earliest times, a number of lawyers and philosophers, from Aristotle, Plato, Socrates, St Thomas Aquinas, Hugo Grotius, John Stuart Mill and Hans Kelsen, to John Rawls, Robert Nozick and Ronald Dworkin, aimed to build a concept of justice. The term environmental justice became current with the development of environmental movements in the 1960s and 1970s. One group of authors sought to determine the term environmental justice within existing theories of justice. Another group of authors, finding elements indicative of a contemporary need to protect the environment, using the requirements of environmental movements as a basis and emphasising the need for active public participation, aimed to find a unique term for environmental justice. The following section outlines the development of the environmental justice theory.

The theory of distributive justice and environmental justice

Distributive justice suggests “the right to equal treatment, ie the equitable distribution of resources and opportunities so that every individual has rights, opportunities and obligations that are equal to rights, opportunities and obligations of any other individual”.^[1041] The concept of justice as distribution was first found in the works of Aristotle, who perceived the concept of justice as the distribution of honours, wealth, and other common values that are divisible and which can be assigned to members of the community.^[1042] Thus defined, the term justice focused on the question of fair distribution of values, not the procedure leading to it.

John Rawls defined justice as “the standard by which the distributive aspects of the basic structure of society are established”.^[1043] Further, this means that justice determines “the exemplary division of social values”.^[1044] The basic problem of distributive justice theory is finding a model for establishing the principle of fair distribution. To develop distributive justice theory, according to Rawls, it is necessary to start from the “original position”, which Rawls defined as the position in which we do not know our strengths and weaknesses, nor our social position.^[1045] The generally accepted term fair justice can be formulated only if isolated from the knowledge of one’s own social status and value. Rawls further argued that, by acting impartially from the perspective of “original position”, we can formulate a system in which everyone has equal political rights and an equal position in the distribution of economic and social inequality. Since everyone in the above model is positioned in the same way and there is no possibility that the specific position of an individual is favoured, the principle of justice is the result of fair agreement and understanding. It is a principle that will always lead to justice in terms of fair distribution of social, political and economic “goods” and “bads”.^[1046] Justice would constitute fair distribution, independent from materialisation of the individual idea of the notion of good.^[1047]

The concept of distributive justice as a basic form of justice was accepted by a number of legal theorists. Thus, in comparative literature, since the first edition of Rawls’ work A Theory of Justice in 1972, justice has been defined as justice in the distribution of social goods. In this sense, Brian Barry, a follower of Rawls’ idea of distributive justice, also considers the concept of justice as a fair distribution, free of any materialisation of what the person believes is good.^[1048] Unlike other distributive justice theories that are based on analysis of the distribution subject (goods, rights, options) or which principles of distribution should be applied, Barry believes that the process of formulating rules for distribution has the key role in achieving distributive justice. He points out that achieving free and equal participation of all is possible only in the process of establishing policies.^[1049] This process must be impartial and independent of the subjective ideas of individuals who participate in it.^[1050] The distributive justice theories understand environmental justice as a fair and equitable distribution of environmental impacts and risks. They refer to morally accountable distribution of environmental “goods and bads” among the members of a particular community.^[1051]

Social recognition and environmental justice

Confronted with the actual social framework and research which indicates that certain minority groups face a higher degree of environmental risk, do not have equal access to environmental values and have less ability to control environmental injustice they are confronted with, the opinion that social recognition is an essential element for achieving environmental justice finds its way into the theory of environmental justice.^[1052] The lack of recognition in the social and political environment prevents the application of Rawls’ model that would lead to distributive justice.^[1053]

The influence of social recognition ideas on environmental justice theory is first found in the work of Iris Young — Justice and the Politics of Difference?² She asserts that, in distributive justice theory, a model is formulated and a procedure for achieving proper distribution described, but that the social, cultural and institutional conditions that put certain groups at a disadvantage before applying this model are not described.^{[1054] [1055] In the case of differences which place social groups in a disadvantageous position when compared each other, it is necessary to identify the elements that cause the disadvantage, in order to marginalise their influence.[1056] Therefore, the key question should not be ‘which distribution model is the best?’, but ‘under which circumstances does maldistribution occur?’[1057]}

Iris Young is particularly attentive to the elements that distributive justice theory does not take into account, in particular, structure and decision-making. The decision-making process does not apply only to the question of who has the right, according to their position, to make certain decisions, and what kind of decisions can be made, but also to the question of how decisions are made.^[1058] The decision-making process must be based on public participation, but it is important to establish mechanisms that ensure the participation of individuals and various groups in decision­making. For groups to have an opportunity for effective participation in decision-making, it is necessary to encourage: 1) self-organisation of group members, which results not only in connecting the ideas of the group members, but also an understanding of common interests; and 2) creation of an institutional framework in which the decision-maker is required to take the opinion of the group into account, resulting in a more intensive role of groups in formulating specific policies (eg environmental policy) and/or the analysis of already proposed policy.^[1059]

Another author who considers the issue of social recognition as a key element in achieving justice is Charles Taylor. By developing the principle of universal equality, Taylor starts from the issue of recognition of individuals and groups, and the possibility of their influence and participation in public.^[1060] In this sense, he states that any person or group should be granted a unique identity, thus avoiding the possibility of being ignored. Taylor further identifies two types of recognition: recognition of a person as an individual worthy of respect (universal dignity); and recognition of a person as an individual of particular distinctiveness.^[1061]

He finds the basis of recognition in the concept that all people are entitled to equal respect. What makes every individual worthy of respect is “a universal human potential”, which belongs to everyone and which ensures that every individual is equally respected.^[1062] Universal human potential also forms the basis for creating and defining one’s identity as an individual. However, Taylor criticises the standpoint that an individual should be evaluated with regard to the cultural development of his or her community, because it would lead to the negation of the principle of “universal human potential”. ^[1063] By applying Taylor’s principle of equality, each individual or group would have the same set of rights, regardless of their differences. If the differences, as an important characteristic of an individual or a group, are not recognised, this results in discrimination. Taylor argues that the lack of social and political recognition results in injustice, in both direct and indirect ways: directly, because individuals and groups are limited in exercising their rights, and indirectly, since the lack of recognition creates a basis for distributive injustice.^[1064]

The basic elements of environmental justice

There are different standpoints about basic elements of environmental justice. Nancy Fraser advocates the concept of distributive justice and social recognition as basic elements of (environmental) justice. Like Iris Young, Fraser considers the issue of the social context of unjust distribution to be the essential element in achieving justice and eliminating existing injustice. She particularly criticises the distributive justice theorists who consider the adequate distribution of rights to be sufficient for elimination of misrecognition. Misrecognition or malrecognition is a form of institutional injustice and as such is “rooted in social patterns of representation, interpretation and communication”.^[1065]

The central part of Fraser’s work is focused on developing models for achieving the integration of justice as distribution and justice as recognition in a single normative framework. As a result, we have a two­dimensional conception of justice.^[1066] The concept of “two-dimensional justice” accepts distribution and recognition as independent elements of justice, whose merging provides a wider and more substantial foundation. Fraser finds the normative basis of the concept of two-dimensional justice in participatory parity. In order to achieve equal participation, it is necessary to meet the previous conditions. Those are the objective condition and “intersubjective condition”.^[1067] The objective condition is met only if the material resource distribution provides stakeholder independence. In this case, the elements that have a negative impact on equal participation are excluded. The intersubjective condition of equal participation is met only if the institutional framework of a society has an established system of respect for the cultural values which enables equal evaluation of every individual. The application of the intersubjective condition excludes the normative framework which systematically and a priori depreciates certain social categories. In addition, the use of the intersubjective condition excludes the institutionalisation of the value system that would deny some stakeholders the status of equal participation.^[1068]

Based on these theoretical approaches, several conclusions can be drawn about the basic elements of environmental justice. Environmental justice can only be achieved by public participation in environmental decision-making, without any form of discrimination. The question then arises whether any public participation leads to achieving environmental justice. I believe that the public can, qualitatively, contribute to achieving environmental justice only if certain conditions are met. Firstly, it is necessary to keep the public informed about the state of the environment and all the elements that influence decision-making in a particular case. Secondly, it is necessary to provide adequate protection of the right to public participation in environmental decision-making.

Uneven distribution of environmental “goods” and “bads” is not the cause of the non-existence of environmental justice, but the result of a broader institutional and social context.^[1069] The absence of environmental justice is an expression of the inability of those who are exposed to disproportionate environmental risks to change that institutional and social context, and thus establish a system of environmental justice.^[1070] The institutional context includes any structure or activity, rule or standard that affects the functioning of the structure or enforcement of activities, as well as language and symbols that mediate social interaction.^[1071] The institutional context can tell us about the fairness of the conditions that provide people with the opportunity to participate in decision-making which influences their practices and the conditions that give them the opportunity to develop and apply their potential.

I will now analyse the positive law of Germany and Serbia and decisions of the European Court of Justice (ECJ) and draw some conclusions on the degree of application of environmental justice theories in comparative law.