Addressing Environmental Injustices: A Capability Approach to Rulemaking

Posted: 7 Apr 2011 Last revised: 2 Oct 2017

See all articles by Shannon Roesler

Shannon Roesler

University of Iowa - College of Law

Date Written: February 11, 2011

Abstract

After receiving variable attention for years, environmental justice is now a top priority at the EPA. In addition to encouraging more public involvement and funding grants to address environmental injustices at the community level, the EPA has demonstrated its willingness to incorporate environmental justice into its national rulemaking processes. For example, the agency recently released an interim guidance on integrating environmental justice into the rulemaking process along with a draft environmental justice action plan. These important steps open the door to a much-needed discussion regarding how environmental justice should be analyzed at the national level; as the EPA has recognized, there is little precedent to guide the agency as it constructs the tools and processes that will integrate environmental justice concerns into its rulemaking.

To guide policymakers as they construct these tools and processes and to further academic discussion, this Article develops a theoretical approach to analyzing environmental justice in the rulemaking process. It proposes that we ground environmental justice in the capability approach to justice, an informational approach to evaluating social inequalities developed by Amartya Sen. Because the capability approach assesses inequalities by focusing on what people can actually do and be (i.e., their well-being), it can tell us what we most need to know: how environmental rules and policies affect the lives of the most vulnerable populations. The Article develops the capability approach to environmental justice by discussing the ways in which the relevant information about human impacts can be gathered, focusing especially on the importance of public participation and deliberation in identifying and weighing the negative impacts of environmental practices and policies on people‘s lives. The final section of the Article explains how the approach facilitates consideration of environmental justice during the rulemaking process and highlights what a capability analysis can tell us in comparison to the primary tool currently used to assess different policy options: a cost-benefit analysis.

Keywords: environmental law, environmental justice, capability approach, administrative rulemaking

Suggested Citation

Roesler, Shannon, Addressing Environmental Injustices: A Capability Approach to Rulemaking (February 11, 2011). 114 West Virginia Law Review 49 (2011), Available at SSRN: https://ssrn.com/abstract=1804476

Shannon Roesler (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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