How can we start to undo a legacy of environmental racism?

Lasting change will require a shift in individual behaviour and perspectives. However, the law can help move this change along and can be protection for those who need it most, it just has to be good law.

Along with increased study of environmental justice, there are numerous recommendations and suggestions for how our laws can be improved. Although this is by no means an exhaustive list, it should give you an idea of some of the ways that improvement is possible.

  • Legislation dedicated to combating environmental racism. 20 years after their initial report, the United Church of Christ released a follow up report. This report suggested passing a National Environmental Justice Act (Executive Order 12898). This Act would be designed to impose federal responsibility in ways that advanced equal protection under the law for communities of colour and low-income communities and broadened the scope of those responsible for the protection of environmental justice. [1] A Canadian equivalent has been suggested as an option, in part, because it could help to create a, “clear and enforceable framework through which to reflect environmental justice considerations in government decision-making.” [2] This would be a very broad piece of legislation intended to focus on the extended issue of systemic environmental racism, rather than just individual decision making processes.
  • Changes to the Environmental Assessment process which make it mandatory to consider a project’s potential to disproportionately impact marginalized communities such as Indigenous or low-income communities, [3] or how the project would affect traditional land and resource uses (particularly for Indigenous populations).
  • Mandatory consideration of cumulative effects when approving new projects. As we saw in our section on Toxins & Waste, (click here to read it) the problems faced by the people living in Chemical Valley were worsened in large part due to an approval process that did not consider the cumulative effects of all of the environmentally toxic projects in that area. [4]
  • Adding a right to a healthy environment into the Constitution. Although this would not necessarily affect every decision made by a government body, it would give affected people more recourse to hold government’s accountable when they do not adequately protect the health of the environment.
To read more about this idea check out our Constitutional Law section here.
  • Diversify the panels performing environmental assessments to include more people from the affected communities. For example, ensure that more than one Indigenous person, with an understanding of the community, sits on an environmental assessment panel. This could also be done by way of intervener status which allows third party groups to put forward their thoughts on a project.
  • In summer 2019, new federal environmental assessment legislation was passed. The new Act is known as the Impact Assessment Act and as we consider updating our environmental assessment legislation, some changes that could be incorporated to improve the legislation from an environmental justice perspective include a system to conduct sustainability assessments. At it’s simplest form, a sustainability assessment asks: does this project positively contribute to sustainability? [5] A sustainability approach may help to ensure communities are not faced with undue environmental burdens by raising the standard of projects being built on the whole.
  • Focus on the precautionary principle. The precautionary principle imposes a duty on those proposing a project to demonstrate that their project will not cause significant environmental harms – this could be a duty to show that the community that will be impacted by the project will not bear an unfair burden of harm. [6] Further, if the precautionary principle is employed, project proponents cannot rely on uncertain results to push a project through.
Check out our section on Fundamentals of Law here to read more about this principle.
  • Increase public awareness and pressure from communities across Canada. In the United States, there is a significant body of literature and public awareness around issues of environmental justice. In fact, even by 1994 then President of the United States Bill Clinton had signed an Executive Order requiring federal agencies to develop environmental justice strategies and although these issues have not been solved, they are much more well-studied than the harms of environmental racism that occur in Canada. The United States Environmental Protection Agency is also mandated to coordinate environmental justice activities across government departments and give mandatory consideration to issues of racism and justice. [7] Although this process may not always be well-funded or successful, the United States has taken the first step of studying the issue, while Canada has not. [8]

Now that you have completed this introduction on environmental racism and justice in Canada, take some time to think about other ways that you think the law may be able to help fix this problem.
You may notice more examples of environmental racism while reading the other sections on this website and while continuing your studies in environmental law more generally, if you do come back to let us know.

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[1] Robert D Bullard et al, “Toxic Wastes and Race at Twenty 1987-2007: A Report Prepared for the United Church of Christ Justice & Witness Ministries” (2007) United Church of Christ at 157.

[2] Kaitlyn Mitchell & Zachary D’Onofrio, “Environmental Injustice and Racism in Canada: The First Step is Admitting We Have a Problem” (2016) 29 J Env L & Prac 305 at 329.

[3] Kaitlyn Mitchell & Zachary D’Onofrio, “Environmental Injustice and Racism in Canada: The First Step is Admitting We Have a Problem” at 332.

[4] Elaine MacDonald & Sarah Rang, “Exposing Canada’s Chemical Valley – An Investigation of Cumulative Air Pollution Emissions in the Sarnia, Ontario Area” (October 2007) EcoJustice at 19 online: https://ecojustice.ca/wp-content/uploads/2015/09/2007-Exposing-Canadas-Chemial-Valley.pdf.

[5] Natalie J. Chalifour, “Bringing Justice to Environmental Assessment: An Examination of Kearl oil Sands Joing Review Panel and the Health Concerns of the Community of Fort Chipewyan” 21 J Env L & Prac 32 at 50.

[6] Natalie J. Chalifour, “Bringing Justice to Environmental Assessment: An Examination of Kearl oil Sands Joing Review Panel and the Health Concerns of the Community of Fort Chipewyan”.

[7] United States Environmental Protection Agency, “Environmental Justice” United States Government online: https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.

[8] Kaitlyn Mitchell & Zachary D’Onofrio, “Environmental Injustice and Racism in Canada: The First Step is Admitting We Have a Problem” at 332.

 

 

 

Environmental Justice

Lesson Plan: Fundamentals of Environmental Law
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