Suchergebnisse

Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's process, too, should have been differently conducted EPA should have consulted with tribes from the outset, in an effort to comprehend what was at stake from tribes' perspectives. Although EPA purported to consider environmental justice as it developed its "Clean Air Mercury Rule, "it failed utterly. In this rulemaking, EPA perpetuated, rather than ameliorated, a long history of cultural discrimination against tribes and their members. This Article examines the missteps in EPA's work with the mercury rule, in the hope that the lessons gleaned here might help EPA's future efforts to consider and respond to environmental injustice in the tribal context.

This article transcribes a presentation delivered by Professor O'Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and their land- and resource-based cultures. These legal obligations mean that federal and state agencies' work must be different when Native peoples—rather than just the general population—are among those affected by environmental contamination. Part I of the article discusses background issues including contamination and exposure, the impacts and regulatory responses by government regulators, and the example of Oregon's water quality standards. Part II explains treaty guarantees, the treaty language and logic, and treaty obligations Oregon's water quality standards. Part III examines the protections against discrimination, such as equal protection, civil rights statutes, and civil rights obligations using Oregon's water quality standards as an example. This article concludes that agencies labor under not only legal commitments, but moral commitments as well, to fulfill their calling as trustee and steward, and to honor the treaty promises.

This article begins with the recognition that environmental justice for Native peoples requires attention to the interrelated cultural, spiritual, social, ecological, economic, and political dimensions of environmental issues. It observes, moreover, that "environmental justice requires an appreciation of each tribe's particular historical circumstances and contemporary understandings, including each group's aspirations for the flourishing of its culture." It contends that some environmental decision makers and commentators have increasingly come to embrace "risk avoidance" – strategies that call upon risk-bearers to alter their practices in order to avoid the risk of environmental harms – in lieu of risk reduction – strategies that require risk-producers to cleanup or eliminate contamination that gives rise to risks. After noting the perils of a shift to risk avoidance from the perspective of the general population, the article focuses on the environmental justice implications of such a shift. It explores the resulting injustice in terms of distributive inequity and cultural discrimination. It argues, first, that the burden of having to undertake avoidance measures, such as reducing one's fish consumption to avoid mercury contamination or staying indoors to avoid ozone pollution, is likely to fall disproportionately on American Indian tribal members and other indigenous peoples, as well as on other communities of color and low-income communities. It argues, second, that risk avoidance is only likely to be the strategy of choice when the practice or lifeway to be altered is not valued or thought indispensable by members of the dominant society. Yet the values and cultural understandings of the dominant society will often be different, sometimes profoundly so, from those of indigenous peoples. Environmental policy that is inattentive to this observation, the article contends, will continue to perpetuate cultural discrimination.

This article begins with the observation that "[f]ish, especially salmon, are necessary for the survival of the Native peoples of the Pacific Northwest, both as individuals and as a people." It considers conventional approaches to regulating contamination of the waters that support the fish on which these peoples depend, and finds that the narrow focus on human physical health fails fully to comprehend the multiple dimensions of the harm to these fishing peoples. Importantly, this focus fails to appreciate the cultural dimensions of the harm. The article examines health and environmental agencies' standard-setting practices and challenges their failure to account for Native Americans' unique fish consumption practices. In the process, this piece questions the hegemony of quantitative risk assessment in agencies' standard-setting efforts. It goes on to criticize the resulting standards and the justifications offered by agencies – and sanctioned by courts – for the "lower yet adequate" level of protection they afford Native American subpopulations relative to the general population. In so doing, it considers the role of science and judgment in environmental risk policy, explicating such technical concepts as "variability" and "uncertainty." It clarifies that discussing degrees of "conservatism" makes sense only in connection with agencies' responses to uncertainty. In the case of responses to interindividual variability, it is not a matter of choosing among errors. Rather, it is a matter of deciding, with full knowledge, whom to protect. As such, these responses ought be discussed in terms of "protectiveness." Having laid this groundwork, the article argues for agencies' differential treatment of Native American subpopulations from both a normative and doctrinal standpoint. Relevant normative commitments include respect for cultural integrity, equality and just process. Relevant legal obligations include treaties, the federal trust responsibility, and civil rights legislation. Finally, the article concludes with ...

In United States v. Virginia, the Supreme Court held that courts must invalidate sex-based classifications that "create or perpetuate the legal, social and economic inferiority of women." This contribution to equal protection jurisprudence, however, leaves unclear when single-sex higher education remains constitutional. This article argues that the Court has been preoccupied with legislative motive in this area. A capability approach, which assesses well-being and identifies individual advantage by reference to an account of what a person is able to do or be, might better help courts determine when there is an "exceedingly persuasive justification" for a sex-based classification.