Harnessing the Common Law for Environmental Justice

Urban air pollution contributes to health risks, especially in low-income neighborhoods. In response, some churches in St. Louis are installing air quality sensors on their property. The churches, working with groups like AirWatch St. Louis and St. Louis’s Washington University, are sharing data in an effort to produce a better-informed advocacy and ultimately motivate legislative change.

Why is air pollution often worse in poorer neighborhoods? There are various reasons. It is tempting to attribute the problem to moral failures like dehumanization and discrimination. But ordinary economic incentives also play a role, and we ignore them at our peril.

Urban Pollution Geography

To keep their costs low, businesses naturally look to locate their factories, which cover large plots of land, in areas where land is cheap. Once they have done so, the adverse side effects of industrial sites — like unsightly buildings and equipment, noise, rail and truck traffic, odors, and the risk of hazardous emissions — tend to keep the property values low in the immediate area.

Housing in the vicinity consequently tends to be less expensive, attracting lower-income residents and contributing to a clustering effect: pollution-prone industries and low-cost housing in a mutually reinforcing, if uneasy, proximity.

The geography of employment is relevant here, too. If the industry needs large numbers of lower-skilled workers, those employees understandably will want to live near their places of employment, leading to the “mill town” phenomenon that developed in the early years of the Industrial Revolution.

Not surprisingly, pollution-related health problems are likely to be more common in such neighborhoods, and not only because of emissions from nearby factories. Housing in low-income areas is less likely to have been refurbished to remove lead paint or asbestos, and it may be nearer busy highways or other sources of vehicle emissions.

One might naturally think, “Well, then why not improve the housing — remove the lead paint and asbestos, install doors and windows that better block out traffic noise, and improve indoor air quality?” That of course can be done, but the costs will be passed on to the residents — making the housing too expensive for those most in need of affordable housing. Then, rising property values may cause industries to relocate, leaving the locals unemployed, or vacant housing may lead owners to allow housing to deteriorate, or both, exacerbating the original problems and adding new ones.

The Importance of Institutions

The disparities in environmental quality that have led to calls for “environmental justice” from these churches are really a consequence of differences in income. Reducing poverty and near-poverty is a multifaceted problem, but changes in institutions are typically central to lasting improvement.

In this context, “institutions” are the social norms, rules, and systems that structure our behaviors, and the organizations that help formalize and channel human interactions. Among the most important of these institutions is property. Recognizing and protecting the property rights of those in low-income communities will yield benefits not only in health, but also in other dimensions of life.

But the consequences of the legislative changes the St. Louis congregations are pursuing could be disappointing.

A 2021 ProPublica article on industrial air pollution in majority-black communities described the frustration in a West Virginia community as EPA and state regulatory authorities repeatedly failed to respond adequately. Regulations with promising-sounding names, like the Community Right to Know Act, were unsatisfactory and often influenced — in their content or enforcement — by various interest groups.

By recognizing individuals’ rights not to have their air quality damaged without their consent, we are acknowledging another dimension of their property, and empowering them to pursue relief without waiting on a distant, poorly informed, and cumbersome bureaucracy.

Though ProPublica did not mention it, a serious knowledge problem also afflicts regulatory agencies: How do these agencies know the appropriate limit on any pollutant? The limit they choose could be too high or too low, as some of the most important information needed to set the limit is out of reach of the regulator.

How can a regulator know the costs of a factory’s emissions, when the various physical effects on each individual and the personal impact of discomfort and injury are impossible to weigh meaningfully against the value to society of having the goods and services a firm produces? An individual’s consent to accept a health risk can provide useful information, but the regulator doesn’t obtain consent from everyone who runs the risk of exposure.

And in any case, a regulation that designates an acceptable quantity of emissions fails to guarantee protection of property rights — either the rights of a firm to use the air in ways that do not harm those downwind, or the rights of downwinders to enjoy undiminished air quality.

A Non-Regulatory Option

Rather than pursue the same agency-based, regulatory strategies for preventing and resolving environmental harms, community organizations like the one in St. Louis could begin advocating for meaningful court-based solutions. Instead of relying on regulatory agencies to set pollution thresholds and then enforce them, a revitalized common-law approach using nuisance and tort rules could better protect individuals and their communities.

As Roger Meiners and Bruce Yandle have argued, the common law provides harsh penalties against firms that disregard the rights of citizens by exposing them to harms. Indeed, when real harm is inflicted, citizens get far better relief through common-law suits than they do from appeals to the Environmental Protection Agency.

By recognizing individuals’ rights not to have their air quality damaged without their consent, we are acknowledging another dimension of their property, and empowering them to pursue relief without waiting on a distant, poorly informed, and cumbersome bureaucracy. And when firms see courts vigorously protecting these property rights on behalf of injured plaintiffs, we can expect the prospect of expensive court awards or injunctions to induce them to improve factory safety and emissions control.

The concerns of low-income communities should not be dismissed or sidelined. Taking air quality away from another person without consent is a form of theft — a violation of a person’s property rights — and churches are right to address this moral failing.

But justice deserves better than a regulatory bureaucracy. Churches wishing to support low-income communities need to begin thinking outside the regulatory box and call on the courts as an avenue toward justice.

A version of this article was originally posted at AmericanThinker.com.