The foundations for an environmental justice framework * 2.1 Justice and the environment
2.3 A multifaceted, discursive and plural definition of environmental justice
Approaches to ‘defining’ environmental justice
Lawyers have an eagerness to define terms, to find clarity in concepts and to interpret through principles.132 However, the purpose of this chapter so far has been to demonstrate
that definitions of environmental justice will be fraught: in part because of an absence of agreement about the meaning and boundaries of the term; in part because of the fluidity
127 Brian H Baxter, ‘Ecological justice and justice as impartiality’ (2000) 9 Environmental Politics 43.
128 Jonathan K London, ‘Common roots and entangled limbs: Earth First! and the growth of post-wilderness
environmentalism on California’s north coast’ (1998) 30 Antipode 155, 170.
129 Ibid 171.
130 Bell, above n 11, 216.
131 David Harvey, ‘The environment of justice’ in Frank Fischer and Maarten Hajer (eds), Living with Nature:
Environmental Politics as Cultural Discourse (Oxford University Press, 1999) 153, 178 argues that ‘the discourse in a language of sacredness and moral absolutes’ that exists across the concepts of justice and the
environment, and deployed by communities in environmental struggles, ‘creates a certain homology’ between those struggles about environmental human risks, nature conservation and development in the majority world.
132 Alan Boyle, ‘Human rights and the environment: Where next?’ (2012) 23 European Journal of International
and plurality of the concept; and in part because the future of the concept remains unfixed. Definitions, such as that offered by the US EPA highlighted at the start of this chapter, represent a limited temporal and jurisdictional understanding of the term, and lead almost immediately to critiques of a blinkered view of the concept.
A more satisfactory way to define environmental justice is to unpick its components133 and
to resituate it within its context,134 so to understand it more as a discourse, an
argumentative device to challenge norms.135 In 2000, Kuehn136 explained environmental
justice as having four discrete but not mutually exclusive components. He adopted a categorisation approach to understanding environmental justice as something to
understand the causes and solutions for environmental justice.137 The four components he
identified were distributive justice, procedural justice, corrective justice and social justice. His starting point was that ‘“environmental justice” means many things to many people’ across local, national and international spheres,138 and a desire to develop a framework of
unifying themes for lawyers to understand allegations of injustice.139
Whereas Kuehn looked for existing justice theories to bring together disparate views about environmental justice, in 2002 Bryner looked for broader frameworks or principles existent in law, policy, practice and theory.140 For him, environmental justice drew from frameworks
and language of civil rights, distributive justice and environmental ethics, public
133 Feng Liu, Environmental Justice Analysis: Theories, Methods, and Practice (CRC Press, 2000) section 2.0
argues that environmental justice in 2000 remained in ‘the preparadigm period’ when consensus would not be likely, but explanations of environmental justice possible by recourse to various theories and hypotheses.
134 Walker and Bulkeley, above n 41.
135 Dryzek, above n 82; John Dryzek, ‘Paradigms and discourses’ in Daniel Bodansky, Jutta Brunée and Ellen
Hey (eds), Oxford Handbook of International Environmental Law (Oxford University Press, 2007) ch 3. Dryzek identified environmental justice, sustainability, survivalism and environmental problem-solving as discourses for an international legal sphere.
136 Robert R Kuehn, ‘A taxonomy of environmental justice’ (2000) 30 Environmental Law Reporter 10681. 137 Ibid 10681–2.
138 Ibid 10681. 139 Ibid 10683. 140 Bryner, above n 22.
participation, social justice and ecological sustainability. It was a concept that can be approached from multiple, sometimes overlapping or otherwise independent perspectives. What was common about their approaches to understanding environmental justice was to map the meaning of environmental justice through the experience and expression of opposition by community groups.
It is this perspective, in particular, that directed me to the scholarship of Schlosberg, whose definition and theoretical attention on environmental justice is shaped by an understanding of the concept as a plural one, and who has interpreted environmental justice as a
discourse.141 That is, the environmental justice movement is a plural network; its members
acknowledge varied experiences and diverse understandings of environmental problems.142
It is a movement and a concept that is ‘ideologically inclusive’,143 shared, experienced and
self-supporting.144 Schlosberg acknowledges that others before him, such as Wenz145, have
explored environmental justice in a similar light.
Schlosberg and reflexive environmental justice
Schlosberg146 offers a broad, integrated and reflexive conceptual definition of
environmental justice. He relies on environmental and philosophical theories, discourses of environmental justice, draws in ideas of ecological justice,147 and looks closely at the
activities of social movements. Like Kuehn and Bryner beforehand, Schlosberg tackles the task of making sense of environmental justice by looking for common and often
141 David Schlosberg, ‘Theorising environmental justice: The expanding sphere of a discourse’ (2013) 22
Environmental Politics 37 (‘Theorising Environmental Justice’).
142 Schlosberg, New Pluralism, above n 29, 109. 143 Ibid 155.
144 Ibid 125.
145 Peter S Wenz, Environmental Justice (SUNY Press, 1988); Schlosberg, Reconceiving Environmental Justice,
above n 42, 533.
146 Schlosberg, New Pluralism, above n 29; David Schlosberg, Defining Environmental Justice: above n 25; David
Schlosberg, Reconceiving Environmental Justice, above n 42. The significance of Schlosberg’s contribution in shifting scholarship on environmental justice is recognised in Holifield, Porter and Walker, above n 44.
overlapping themes or threads across these sources. He defines environmental justice as having four interlinked148 aspects or realms: the fair distribution of environmental goods
and harm; the recognition of human and non-human interests in decision-making and distribution; the existence of deliberative and democratic participation; and the building of capabilities among individuals, groups and non-human parts of nature – a form of capacity building.149 He asserts that achieving ‘justice’ in one realm is not justice.150 Environmental
justice must exist across all realms.151 Significantly, Schlosberg reflects on environmental
justice as an historical concept but also foreshadows changes and connections that could come within his approach. The four aspects have theoretical and historical bases but are capable of accommodating change and added plurality within the concept and movement of environmental justice. They are more like signposts than scriptures.
While Schlosberg’s scholarship provides the principal conceptual framework for this thesis, I do not embrace it fully; rather I approach Schlosberg’s ideas with two distinctions. First, I see participation and recognition as being less divisible than Schlosberg presents through his categories of environmental justice. There is no neat division, for instance, between participation being about the fact and method of involvement, and recognition being about degrees or extent of involvement, which a superficial inquiry into an environmental
controversy might identify. Rather, recognition is about improving the quality and the experience of participation of groups involved in environmental processes, including environmental law, and about bringing in alternative voices, knowledge and vulnerabilities. I therefore see these two aspects as being discrete but interweaved, and while I attend to them separately, there is a blurring of them. I highlight the thinking of legal scholar, Alice Kaswan on this point – that it is political empowerment not participation that communities
148 Schlosberg, Reconceiving Environmental Justice, above n 42, 521.
149 Robyn Eckersley adds precaution and compensation as elements of environmental justice: see Robyn
Eckersley, The State and Access to Environmental Justice (Speech delivered at the Access to Environmental Justice Conference, Environmental Defender’s Office Western Australia, 20 February 2004).
150 As Julian Agyeman, Introducing Just Sustainabilities: Policy, Planning, and Practice (Zed Books, 2013) 7
explains, just sustainabilities require a holistic perspective of justice. Agyeman writes of ‘four essential conditions for justice and sustainable communities’ though ‘just sustainabilities can only be fully interpreted as an integrated whole’.
seek, and that empowerment is premised on the kind of recognition that Schlosberg discusses.
Secondly and relatedly, and informed by my legal and geographic background, I also approach Schlosberg’s fourth aspect of justice differently. Schlosberg theorises capabilities from a philosophical position. What I see in his explanation, however, is found in resource management scholarship on capacity building,152 and in public interest legal arguments
about the need for community supports – through things like legal aid, community legal centres, community legal education, and the availability of low-cost tribunals. Capacity, which contributes to the empowerment of communities, develops as communities are invested with management responsibility or are given the opportunity to learn through supported practice.
Schlosberg’s contribution to the meaning of environmental justice153 is especially important
for researchers of environmental controversies outside the US, because Schlosberg’s environmental justice is not limited or fixated on distributive harms on a specific
characteristic of the community of justice, and because of its focus on political aspects that have driven the transportability of the concept globally and internationally. Indeed, the three aspects of participation, recognition and capabilities (or capacity, as I prefer) are all directed towards political equality. In explaining his scholarship,154 and on reflecting on its
contribution,155 Schlosberg saw environmental justice becoming more than the
conventional distributive US model. He combined theoretical and empirical study to develop a conception of environmental justice. He discovered that, while academics import an equity or distributive definition to environmental justice156 and theorists are most at ease
152 See, eg, Andrea J Leys and Jerome K Vanclay, ‘Social learning: A knowledge and capacity building approach
for adaptive co-management of contested landscapes’ (2011) 28 Land Use Policy 574; Jennifer Andrew and Ian Robottom, ‘Communities’ self-determination: Whose interests count’ in Meg Keen, Valerie A Brown and Rob Dyball (eds), Social Learning in Environmental Management: Towards a Sustainable Future (Routledge, 2005) 61.
153 See especially Schlosberg, Defining Environmental Justice, above n 25.
154 David Schlosberg, ‘Public presentation’ (Speech delivered at the Environment Defenders Office Victoria, 29
June 2011).
155 Schlosberg, Theorising Environmental Justice, above n 141.
in explaining environmental justice in distributive terms, groups looked for more. They wanted justice, not equity. They wanted a functioning community, respect and
enfranchisement. They wanted to survive and flourish.157 Hence, environmental justice is
understood as being ‘multifaceted’.158 It is individual as well as communitarian, and the
emerging language used suggests a transposition from the human to the non-human environment.159