This Article proposes a new risk-based approach to representing and compensating not only minorities but any person affected by a siting decision. This proposal would create a formal mechanism for achieving the desire of many environmental justice advocates to empower those local residents most affected by a siting decision. The EPA or state siting agencies, however, would provide a technocratic framework for assessing the scope of risks, despite the limitations of risk and cost-benefit analysis; would set limits on the maximum amount of risk in any community; and would specify the minimum compensation required from a developer. Immediate neighbors, political residents in the siting community, and regional residents would have a varying degree of input into the siting and compensation process depending upon the risk they bear from a facility. After the EPA or siting board established minimum safety standards and determined the minimum compensation, a siting negotiation and compensation committee, elected by a risk-weighted voting system, would negotiate with a developer concerning both the amount and the distribution of compensation. Compensation would go to those who are at greatest risk rather than to local politicians and unrelated municipal service needs such as schools. The compensation process could take into account harms caused by both the initial siting process and subsequent ongoing or ex post risks. The compensation process would also determine the relative allocation of monies for remedial, preventive, and incentive purposes.
Part II of this Article discusses the empirical evidence regarding whether minorities are disproportionately affected by pollution and examines whether disparities are caused by the initial siting decision or by subsequent events attributable to market dynamics. Part Ill(A) reviews current siting practices and proposed environmental justice legislation. Part ill(B) discusses the limitations of current compensation practices. Part Ill(C) explores the question of to what extent the public should participate in environmental decision making. Part IV discusses recent equal protection challenges to allegedly discriminatory siting decisions and scrutinizes proposals by other commentators to allow for broadened disparate impact claims. Part V argues that equal protection suits should be allowed only when there is evidence of intentional discrimination. Disparate impact suits should be allowed only when there is statistically significant evidence of such impacts, the costs of discrimination outweigh the benefits of a proposed project to an affected group, and there is no adequate compensation process. Part VI presents a "risk-based" committee system that would give greater representation to those most at risk from locally undesirable land uses and would be the fairest system for compensating those who are at risk from locally undesirable land uses.
Mank, Bradford, "Environmental Justice and Discriminatory Siting: Risk-Based Representation and Equitable Compensation" (1995). Faculty Articles and Other Publications. 265.