Rethinking Environmental Justice Regulation: A Modest Proposal for Penalty Return

Abstract

Over the last seven years U.S. Steel has been penalized for over 100 violations of environmental laws at its Gary, Indiana, steelmaking facility. Gary's primarily minority residents, while bearing a great majority of the risk created by U.S. Steel's violations, have not received any of the penalty money paid by U.S. Steel for them. Numerous studies have shown that minorities disproportionately bear the burden of pollution. The redistribution of penalty money away from those who bear the risk is a further manifestation of this environmental injustice.

The purpose of this article is both to examine the phenomenon of penalty redistribution as a form of environmental injustice and to argue that the minority communities that disproportionately bear the risks created by pollution should also receive the penalty payments made by violators. Current environmental justice regulation focuses on decreasing the risks borne by such communities. These burden-reducing schemes are ineffective as a means of dealing with the problems of environmental injustice because of both political and economic obstacles to their implementation. A scheme of penalty return responds to a number of the major concerns of environmental justice while not falling prey to the economic and political obstacles currently confronting burden-reducing schemes.

The article is organized in the following manner: the next section provides a brief description of the problem of environmental injustice and how it arises. Once the problem of environmental injustice is described, the article's next section will then consider the legal responses to the problem, with a particular focus on the current Environmental Protection Agency (EPA) regulatory framework. The section characterizes the EPA regulatory scheme as focused on reducing the burden of pollution and then identifies the economic and political obstacles that confront such burden-reducing regulation. The article then develops a complimentary scheme of regulation that focuses on redistributing money back to the harmed communities. This scheme of penalty return, it argues, is not susceptible to the same types of problems currently confronting existing burden-reducing schemes.

Keywords: Environmental law, environmental justice