Clearing the Air: Australia, environmental justice and ‘toxic’ pollution

Here is a speech I gave at a public seminar hosted by Environmental Justice Australia on 8 July 2014 on the topic of air pollution and environmental injustice.

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The focus of this evening’s seminar is the recently published ‘Clearing the Air’ report into air pollution by our hosts, Environmental Justice Australia.

However, I want to start my presentation by taking you back a couple of years to the report that saw this organisation shift its attention, and ultimately its name, towards concerns of environmental justice.

In that report, the final report of the Environmental Justice Project (pdf), the Environment Defenders Office (‘EDO’) – as it then was – explained an absence within Australia of a narrative – or movement – for environmental justice and a policy gap in the promotion of environmental justice principles throughout the country.

For those of you unfamiliar with the concept of environmental justice it is a term with an evolving definition: it is defined differently depending on context and perspective. What links the definitions, however, are two concerns about fairness.

First, fairness in terms of where environmental harms are situated. In this respect the concept is understood as having distributional or geographic aspects.

Second, a concern about fairness in decisions about projects or policies that are perceived as having environmentally harmful effects – wherever those effects may be located. So in this respect the concept is also understood as having procedural or political aspects.

When understood at its most basic level within these two terms, I am sure you will agree that for many decades these concerns about fairness have been evident in Australia. I am confident that each of you could recall a case, a project, a decision, a pollution event that either gave rise to concerns about distributional unfairness or procedural or political unfairness.

Some readers of the EDO’s Environmental Justice Project Final Report, however, suggested that the concept of environmental justice is novel to Australia: that the EDO’s work was the first time that environmental justice had been brought into view in Australia. That is not accurate. A review of the footnotes of the EDO report makes plain that there has existed and been recorded for a period of time in Australia events and literature on environmental justice.

In fact, the experience of air pollution in Australia allows you to trace environmental justice concerns for decades. The graphic locating geography hot spots of air pollution in the Environmental Justice Australia report, (pdf, see page 16), offers you an opportunity to reflect on how long those spots have been presenting distributional, unfair health problems to those communities. They have not just appeared over the past two years.

The principal messages in my presentation today, drawn from my research and also what I learned in putting together and recently teaching the subject Toxics, Waste and Contamination Law is that environmental justice concerns have played a part in our pollution laws over the past 40 years.

It is only now are we as a community of scholars and of individuals beginning to frame our laws as being directed to achieve environmental justice. The report we are discussing tonight is part of this movement; part of the trend.

I want to offer two potential reasons for this interest in environmental justice: not simply the concepts but also the words, the discourse, the phrase, the term.

First, we are seeing demands that human health impacts be a priority when governments respond to incidents and reports of degraded environments and, associated with that, a second potential reason (and this is somewhat preliminary and speculative) is the displacement, in the view of non-government entities, of sustainability as the predominant policy goal of environmental laws.

To reach these conclusions, however, it has been necessarily for me to take what is becoming an unconventional route to understanding what environmental justice means.

The conventional route is to see environmental justice as having emerged from the environmental racism movement in the USA, exemplified by the incident in the late 1970s and early 1980s in Warren County where abandoned chemical wastes were relocated in the face of African America led opposition to a tip created in the least wealthy and least white county in North Carolina.

A less specific, less limiting and arguably more global and less instantaneous, alternative starting point for the emergence of environmental justice is in the anti-toxics movement.

Political scientist John Dryzek traces the discourse of environmental justice to this movement and social scientists Buell and Szasz also separately reached this view.

For them ‘toxic’ was and is a word of political power and an expression and encapsulation of human health concerns. Szasz writes of toxic as ‘icon’, a rallying point. Buell writes of the ‘global rhetoric’ of toxicity predating the 1970s. Dryzek notes the difficulty in disproving toxicity: hence it has symbolic and political power.

Toxic was proxy – for justice, for fairness, for protection of human health. It remains so. You are also likely seeing it appear more in our environmental language. Alkon et al in recent scholarship in the journal Local Environment argue that we should not always be looking for environmental justice as a term to understand its meaning and force, but to be mindful of proxy terms.

So if you are looking for a narrative of environmental justice in Australia a search for concerns and complaints about toxicity can be a proxy. You are all likely aware of the long standing National Toxics Network. Some of you might be aware of the book Local Heroes edited by Kathleen McPhillips which recounts incidents of toxic pollution and threats around Australia, including at the periphery of Coode Island here in inner Melbourne. These, as well as some of those locations in the pollution hot spots map, are Australia’s early stories of environmental justice. They date for decades.

What is central in the toxics terminology is the human – toxic effects on humans. So having sketched out a path for you to see environmental justice as having resonated through our experience of pollution laws, I now want to turn to emphasise the centrality of human health to those concerns. To show the parallel experience of health and toxicity in our modern environmental laws.

If you look at the origins of the Environment Protection Act 1970 (Vic), you will see a focus on human health concerns within the broader community.

Former federal MP Lindsay Tanner, in his co-authored 1978 book, The Politics of Pollution, pinpoints the proposal for the Carrum sewerage treatment plan with an effluent pipeline into Port Phillip as a trigger for the public to demand a comprehensive pollution control regulatory system in Victoria: a system that would protect the “quality of life” of the public. Tanner’s book also records the election promise of the Bolte government to create the Environment Protection Authority in May 1970 in response to community demands for government intervention to control pollution for their benefit.

While these laws have changed over the past 40 years, particularly in the post-Rio legal sphere, and while governments have repositioned the laws to achieve environmental protection and meet principles of sustainability, recent reports analyzing the conduct of the Environment Protection Authority reiterate that in the community’s view these are laws ought to protect them, their well-being and their health, and that their health has been missing from the agency’s regulatory enforcement activities.

My research has also led me to suspect that if the community ever signed up to the concept of environmental sustainability it has since signed off.

With Annette Jones I reviewed submissions to human rights dialogues, which clearly (and perhaps naturally because of the subject matter) prioritized human well-being, particularly of the most vulnerable in the community, over environmental sustainability and protection concerns. This was so even when governments invited submitters to consider explicitly a right of ‘environmental sustainability’, as the Tasmanian government had proposed. There the Tasmanian people rejected that right in preference to a right to a healthy environment.

The issue of human health as a regulatory priority of pollution laws will be explored in a forthcoming volume of the Michigan Journal of Environmental and Administrative Law. In the introductory essay by Uhlmann, he notes that:

“I would submit that the environmental laws themselves are human-centric … Our environmental laws focus on the need for pollution prevention to protect public health.”

He argues that in contemporary times: “We regulate hazardous waste, … when it has the substantial potential to be harmful to “human health and the environment (in that order).”

Ulhman is not alone in suspecting an internal US change in approach to greenhouse gas emission regulation (with human health as its core) is symbolic as well as pragmatic. In the same volume he notes that Tracy Bach presents research that shows the community is more likely to accept greenhouse gas regulations if climate change is understood as a human health issue. Bach, an environmental pragmatist, argues that we should attempt to secure atmospheric environmental protection through human interest.

Elsewhere in the US, the need for change climate regulatory responses are framed in environmental justice terms in order to persuade regulators to require emissions reductions from power plants rather than letting markets do that work so that communities that host energy infrastructure should see real benefits and changes in the quality of the air that they breathe. President Obama, admittedly with limited alternatives, has responded in a manner that his advisors claim responds to environmental justice and the claims of environmental justice advocates to limit emissions in vulnerable communities.

So, I want to bring you back to environmental justice in Australia. Now, perhaps as a result of the EDO’s two-year old report, we are seeing a clearer and more conscious and deliberate engagement with the concept in Australia. Chakraborty and Green have produced and analysed National Pollutant Inventory data maps with social advantage data showing a clear and strong correlation in Australia between a lack of advantage and presence of potentially harmful pollutants.

Moreover, Felicity Millner (pdf) from Environmental Justice Australia has written about the need to achieve fair access to justice in the environmental law field in Australia. This organization may take on a role as justice advocate, a role that Alkon et al identified as important in driving the environmental justice narrative, and the Clearing the Air report challenges us to confront and come up with a way to respond to an environmental injustice.

Sharing Melbourne and the Sustainability Business Clinic

This is a short roundtable presentation I gave at the Sharing Economy Leaders Forum in Melbourne on 29 May 2014 in which I introduced the Ashurst Australia / Melbourne Law School Sustainability Business Clinic to a band of sharing economy enterprises and enthusiasts.

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The Sustainability Business Clinic will be the first law clinic set up within Melbourne Law School for the law school’s Juris Doctor students. While this clinic will be new for Melbourne Law School, it builds upon a much longer tradition of clinics in law schools, especially in the United States. In the US there have been efforts to incorporate experiential learning and practical learning in the form of clinical programs for decades.

With the shift at Melbourne Law School to a post-graduate law programs the importance of clinics has been emphasised – with students now taking typically three rather than five years to complete their studies. Students want to pack as much practical leaning into their programs as they can to make sure they are job ready by the time they graduate.

For those of you unfamiliar with law clinics, they are essentially small student populated law firms on campus. Upper year level law students get to use their legal skills and knowledge in a practical setting. Their work is overseen by and supported by experienced lawyers and teachers. The legal service the students offer is provided free to worthy clients.

Within the Sustainability Business Clinic, students will be supervised by lawyers from the global law firm Ashurst, and I will provide the learning framework and supervision to the students.

This year the clinic is running in semester 2 (from July through October) from Melbourne Law School at The University of Melbourne Parkville campus. Eight students will work for eight or nine clients one day a week over 12 weeks.

All of Melbourne Law School’s experiential learning offerings are centred around the objective of advancing the public interest and Ashurst’s involvement builds upon its ethos and commitment to provide pro-bono (that is: free) legal service to worthy clients. The Sustainability Business Clinic has a mission of public interest interpreted through an imperative of sustainability.

Melbourne Law School and Ashurst hope to assist through the clinic businesses or community or non-profit entities that are supporting or leading our transition to a sustainable future through enterprise. For us the sharing economy is an expression of sustainability. So, we are aiming to help business like you: businesses that are thinking creatively about how we, as a community, can share rather than consume, to build more robust and networked communities and improve our environmental well-being. The enterprises we will support might be hoping to turn a profit, or not, but aside from their sustainability objectives what will be common among the clinic clients is that they will not currently have the capacity to pay for specialist legal advice.

Our first tranche of clients are sharing businesses, disruptive business, social enterprises and community co-operatives. They are all taking business initiatives without and before the development of policy support and (sometimes) laws that support or guide their activities. They are all in the formative stages of the evolution of their businesses.

The clinic will help clients in various legal aspects. Starting out, advising on permits or consents, traversing a sometimes complex or uncertain regulatory environment, and preparing standard documents. Our goal is to offer legal assistance for discrete legal questions to many clients, not to build long term lawyer-client relationships. There are emerging law services that can offer those long term relationships once business are up, running and able to afford to pay for legal services.

To best suit the skills of the students who will occupy the clinic, we have asked our first clients to think about legal problems that require thoughtful legal research rather than legal strategy; tasks that will allow the students to develop drafting skills and encounter different types of legal documents.

There is a bit of give and take involved. In exchange for free legal service, we want our clients to interact with, be appreciative of and encouraging of our students. We hope that people like you see the value in giving students practical training – particularly in the areas of law and legal documents that your industries want to see developed further. Moreover, we hope that clients will see the benefit in being involved within an institution – The University of Melbourne – that wants to analyse and research emerging trends in society. That is keen to help shape opinions about the sharing economy, among other sustainability matters, and to critique the laws that affect new, dare I say ‘green’ businesses attempting to do good for the public.

The sharing economy and the law

Last year, when Time Magazine named 10 ideas that will change the world, high on the list was an entirely new concept: ‘collaborative consumption’.

Got a spare driveway? Rent it to a driver using ParkatmyHouse. Extra space in your shed? Let it out via Open Shed. A small job that needs doing? Find someone to do it through Airtasker. Old clothes? Exchange them with Clothing Exchange.

Also termed the sharing economy, the access economy, or the peer-to-peer economy, this new economic model is based on ‘access to’ rather than ‘ownership of’ physical and human assets like time, space and skills.

The ‘sharing economy’ has mushroomed in Australia, and Melbourne in particular has seen a range of initiatives start up.

Back in 2004, Melbourne was among the first to embrace the sharing economy concept with the launch of car-sharing. These days, Melbourne boasts bike-sharing schemes, community-owned energy projects, solar leasing projects, and carpooling schemes for city commuters. Our city rooftops now grow vegetables and host beehives, and the Melbourne City Council is developing other initiatives to encourage a shared use of resources in the city.

Operating in the sharing economy brings multiple benefits: profit, community building, strengthened local economies and reduced waste. But it’s becoming clear that these sharing initiatives also pose major challenges to our legal system.

That’s because our laws are based around ownership of goods, rather than access to them. Our legal frameworks have evolved to regulate established relationships such as employer/employee, landlord/tenant, developer/homebuyer, business/investor and producer/consumer.

The sharing economy often doesn’t fit within these categories. Is a person who spends time tending to a community share garden in return for vegetables an employee? Or a volunteer protected from negligence actions? What is the extent of their contractual rights and obligations?

This has already given rise to legal tensions in the United States. In the US, services like Lyft, SideCar and Tickengo connect individual private drivers with people who are looking for a lift, reducing traffic congestion and the need to own a car. But in many US states, these peer-to-peer car-sharing services are illegal. Last September, California was the first state to legalise technology-based ride-sharing services, providing a regulatory framework for them to operate.

In New York, Airbnb is being investigated for possible breaches of a 2010 law making it illegal to sub-let your apartment. New York City’s Attorney General has filed a subpoena for data on all Airbnb hosts in the city. Peers, an organisation that supports the sharing economy, is currently lobbying New York law-makers to introduce regulations to allow for Airbnb to operate legally.

Similar legal issues are starting to emerge from such initiatives in Australia. Community energy groups are grappling with their incorporation, while initiatives like rooftop gardens are being constrained by planning laws. Food sharers must comply with the same food safety rules as larger not-for-profit enterprises. Despite community support for sustainability projects, overcoming legal barriers is a significant impediment to sustainability projects getting off the ground. However, the need for specialist legal advice comes at a time when many projects do not yet have the capital to pay for lawyers.

The legal and commercial factors sustainability companies need to consider in order to get moving include determining the right legal structure, securing the right legal approvals and licences, developing an effective finance model, raising start-up capital from investors (which may include the community through crowd-sourcing) and offering a service that is in demand, understood by consumers and is simple to use.

Recognising the difficulties environmentally-minded companies face in navigating a minefield of laws and regulations, leading global law firm Ashurst has teamed up with University of Melbourne to establish a Sustainability Business Clinic.

The first of its kind in Australia, the Clinic begins this year and will see law students provide legal advice to start-up companies under the supervision and guidance of environmental lawyers.

Projects that are in the public interest benefit the environment and do not have the capacity to pay for specialised legal advice may have access to the Clinic. It is expected that a broad range of legal issues will arise, spanning environmental, planning, property, corporate, finance, intellectual property and energy law.

It is hoped the clinic will not only help sustainability initiatives get off the ground, but will also equip the lawyers of the future with the practical skills required to advise companies operating in the emerging and rapidly growing sharing economy. If Time Magazine is right, then these skills will certainly be in demand.

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This article was co-authored with Katherine Lake and was first published in The Voice.

Why environmental justice matters

Here is a presentation I gave at the EDO/CREEL Environmental Justice Symposium:

I want to present two somewhat related thoughts to you today about why environmental justice matters.

The first thought is: that environmental justice matters because the concept of ecological sustainable development has failed – ESD has become a catch-phrase, has always lacked meaning, and certainly no longer prioritises environmental protection and conservation. The concept of ecological sustainable development is not used to improve the livelihood of the least advantaged among us. The ecological modernists, and even the ecological industrialists, have employed the notion to achieve their ends, be they environmentally benign or destructive. Moreover, a legal system designed around an environmental justice framework might have caused decision-makers and ourselves greater reason to doubt the appropriateness of government decisions made about the environment and development.

This thesis is demonstrated by three Australian case studies which are the subject of my current research and which explores the aspects of distribution, recognition, participation and capabilities that David Schlosberg has identified as being components of a multi-faceted, hybrid and plural notion of environmental justice.

It is demonstrated in a battle over a landfill in rural NSW where the law at first intervened to halt a project that would have cross-generational adverse impacts on the rural future of the people of the township of Molong, whose landscape would include the home of a landfill and recycling plant owned and operated by, and servicing the people of, the neighbouring city of Orange. Later, however, the law allowed the court’s concerns to be downplayed as the project was rebadged as one of the most sustainable waste projects of state importance. The landfill was approved. The community was left with no meaningful avenue to the courts to challenge a dubious legal conclusion reached by the NSW Minister for Planning.

It is also seen in the environmental assessment process, an archetype of sustainability law, for the Channel Deepening Project here in Victoria, and was especially evident in the process for the sugarloaf pipeline, where the environmental law failed to guarantee expected and typical rights to participate in the project evaluation process in a meaningful way, a process already designed to advantage industrialist proponents.

It was evident in the dispute over logging in Tasmania’s Wielangta forest, where the ‘ecologically sustainable’ Regional Forests Agreement – a model of sustainability policy – was found to allow the endangerment of species the RFA was supposed to conserve and protect. While the court at first instance concluded that the law required an assessment to be undertaken before any activity would further diminish threatened species populations and the species’ capacity to flourish, the executive governments of the Commonwealth and Tasmania devised a work-around to permit logging in the forest despite its adverse impacts on the ecosystem.

My second thought about why environmental justice matters is that a principle of environmental justice is an important moderator of some our collective environmental enthusiasm. It should make us think before, as a community, we are seduced by the promise of environmental benefits using relatively novel policy approaches.

Last month I returned from a half-year research stay in the San Francisco Bay Area where environmental justice issues are raised and pursued by a number of grass-roots non-profits whose focus is on improving the environmental health of California’s most disadvantaged communities. While often the environmental justice groups work alongside traditional environmental groups, they have recently lined up against them in court.

The issue that has demonstrated a disjuncture between community-focused environmental justice groups and mainstream state and national environmental groups has been the Californian Government’s decision to adopt a cap-and-trade mechanism to reduce its greenhouse gas emissions.

The environmental justice groups succeeded in court by arguing that the government had failed to follow the process required of it in law because it did not evaluate alternative options for reducing greenhouse gas emissions – particularly a carbon tax – or indeed regulatory limits on emissions. The environmental justice movement’s concerns about a cap-and-trade mechanism include that there is an ability under that system to offset emissions. This might lead to total emission reductions but will not have the associated benefit of reducing the local pollution in some of California’s most polluted areas. They argue that the only fair way to reduce greenhouse gas emissions is to reduce them at source, and at every source.

The policy setting has already led to the development or proposal of new, more efficient and sustainable gas fired power plants – a cluster of them (each power plant just coming under the human health emission limit triggers for assessment and mitigation requirements – collectively they are over the limits). They are being built or proposed around the poor township of Richmond, though much of the power will be used in San Francisco where polluting power plants were closed owing to the lobbying efforts there of a wealthier and empowered community.

The Port Phillip Channel Deepening Project and ESD

I was recently published in the book Marine Resources Management, edited by Warwick Gullett, Clive Schofield and Joanna Vince. The book is available from LexisNexis Butterworths.

My chapter, ‘The Port Phillip Channel Deepening Project and environmental law: A model for ecologically sustainable development?’, inquires into the ‘sustainability’ of the Port Phillip Channel Deepening Project. I conclude:

Australia has a sustainability agenda. As a nation it wants infrastructure projects to be ecologically sustainable, and it has a national strategy that outlines the expectations and understandings of ecological sustainable development. While there are questions about whether this is a suitable benchmark for assessing controversial and large-scale developments, it is unlikely that the present paradigm will shift anytime soon. Within this strategic setting dredging will continue to be advocated to accommodate the projected increase in global sea trade and will need to be assessed against environmental laws should they apply.

The question posed by this chapter is whether dredging can be consistent with the existing sustainability paradigm. In the Port Phillip Channel Deepening Project, decision-makers and the Port claimed that it could. Although to get to this position the Port and the decision-makers traded-off and managed-away environmental impacts to preserve their desired economic outcomes. Under the policy definition of ecological sustainable development this trading-off and managing-away can only occur if the integrity of the environment is not only maintained but the ecosystem is conserved. This was not the case for the Channel Deepening Project because there was no legal regime that required the protection of the whole environment of the bay. There were no minimal requirements for protection articulated in the laws that could be balanced, let alone not traded-off or managed-away. There were no regulated limits on harm to the environment or impacts on the marine parks, no regulation for undersea disposal of toxic wastes, and no rigorous planning policy that applied to the project. While the environmental management plan was detailed, it remained a plan enforced by the Port, with its primary focus on delivering the project and realising the economic benefits. Although the Port could arguably undertake a balancing of economic, social and environmental issues as they arose, they were not equipped, nor willing, to be the defender of ecological integrity at the expense of economic development. For all the Port’s environmental goodwill, the ‘show had to go on’. The fact that the Victorian Government created a bureaucratic and unlegislated Office for Environmental Monitoring for the project showed the gaps in the regulatory system and the absence of an agency equipped to protect the bay environment

The lesson is not that the Channel Deepening Project or any other dredging proposal should not or cannot occur in an ecologically sustainable way. While this chapter is critical of the way ecological sustainable development is used in practice because it is not always consistent with policy and often prioritises economic benefits over environmental impacts, change is possible and could be straightforward. The challenge is for law-makers to establish a legal regime that sets out the protection requirements for nearshore marine areas and that prevents decision-makers deviating from those conservation requirements even when confronted with opportunities for economic gain.

Questioning the sustainability paradigm

I was recently asked, on behalf of the Australian Centre for Environmental Law, to contribute a submission to the Australian Capital Territory’s Commissioner for the Environment Act 1993. The Office of the Commissioner was particularly keen to incorporate the concept of sustainability within her sphere of concern. In addition to proposing a number of amendments to the Act I challenged what I thought was a problem with sustainability in the following way:

We note that no objects currently exist in the Act: a gap that should be filled through this review. These objects should be descriptive and meaningful. They should use plain language and be capable of being understood by all Canberrans in a common way. We do not think that you need to incorporate the concept of ‘sustainability’ into your sphere of concern. Indeed, we caution you against doing this. We do not think that you should frame your objects around this principle either.

In Australia, while the Council of Australian Governments has attempted to define ecological sustainable development, it is commonly interpreted and applied using different understandings. A recent Federal Court decision adopted the triple-bottom-line approach to the principle so popular with business, giving equal weight to economic, social and environmental matters in an application of the principle to the dredging of Port Phillip in Victoria.

‘Sustainability’ is a contested term and an ambiguous concept. A lack of clarity and the employment of the term by government and business to suit their goals have resulted in the term becoming so malleable that it now means different things to different people and is used in different ways in different contexts. In a sense the concept was always intended to be used in this manner. Its origins date to before the Brundtland Commission issued the popular (but still not agreed) definition of sustainable development. At the international level the concept has always been primarily directed at development in developing countries. It was offered as a compromise by developed countries concerned with environmental degradation but realising that they could not unduly impede economic advancement in developing countries. Development activities were to proceed, sustainably, mindful of poorly defined ecological principles. Each nation could define and interpret the concept for their purposes.

Planning and wind farms in the UK

I was asked to give my view on the planning impediments to wind energy developments to Heren Energy, an energy news service. Heren understandably has a pro-wind agenda, hence the characterisation of the problem.

Here is what they decided to use of my contribution about those aspects of the planning process that create often intractable disputes, as published in Heren Energy’s European Daily Electricity Markets on 10 April 2008.