Is Heavily Polluting a Community a Breach of Its Human Rights?

The Inter American Commission on Human Rights has agreed to hear a precedent-setting case against the United States based on environmental racism. Heavily polluting industries are often concentrated in poor areas, typically occupied by minorities. In the United States, these minorities tend to be black. The Canadian equivalents may be First Nations communities, such as the reserve just downwind of Sarnia’s Chemical Valley.

 Mossville and Cancer Alley

The IACHR case relates to an African American hamlet named Mossville, Louisiana. Fourteen heavy industries lie between Mossville and its neighbour, Westlake, including an oil refinery, a coal burning power station and several vinyl chloride manufacturers. In 1998, the Agency for Toxic Substances and Disease Registry (ATSDR) confirmed that Mossville residents have dioxin levels in their blood three times the national average. Dioxin is one of the most powerful toxins people have ever created.

A 2001 study confirmed that fish in Mossville waters, yard soil and indoor dust all exceed regulatory cleanup standards. Unsurprisingly, Mossville residents also report high levels of health problems, including cancer, respiratory ailments, and diseases affecting the kidney and liver. There are plausible connections between these diseases and their documented dioxin exposure. A 2007 study [PDF] concluded that the types of dioxins found in the residents’ blood are the same types emitted by six of the local industries. Mossville is also heavily exposed to other toxics, such as PCBs, PAHs, toluene, lead and mercury.

The fourteen plants near Mossville all have legal permits to operate, and now appear to be complying with those permits. (Previous legal action by the Mossville residents forced Louisiana to crack down on those who did not; several were fined.) The permits are based on valid state laws, which comply with rules established by the federal EPA. This is what leads the Mossville residents to the IACHR: it’s the government that seems to be at fault, not the individual companies.

 Is it racism?

Mossville residents, represented by the Advocates for Environmental Human Rights say it was racism to put fourteen heavy industries so close to their homes. Mossville is not an incorporated municipality, so planning decisions are made for them by the County, known as the Calcasieu Parish. Most of the Parish is rural, and white; Mossville is less than 1% of the population. The plants were established decades ago, when Louisiana was unapologetically racist. While there may be no intentional racism now, Mossville residents say they are suffering from the real, if unintentional, effects of living next to a cluster of heavy industries, a burden not imposed on other residents of the Parish. 

They also say that state and federal governments have done little or nothing to help them. American laws against racial discrimination have been interpreted to mean intentional discrimination, not acts that result in a discriminatory effect. American privacy laws do not govern pollution. And American sovereign immunity laws prevent them from suing the federal government without its consent.

Will the IACHR help?

It has taken the Mossville community five years to persuade the IACHR to hear their case, over the fierce opposition of the federal and Louisiana governments. This spring, the IACHR finally agreed to permit Mossville Environmental Action Now to argue that the United States government has breached two articles of the American Declaration of the Rights and Duties of Man: 

Right to equality before law.

Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Right to protection of honor, personal reputation, and private and family life. 

Article V. Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.

The IACHR is not permitted to hear cases that could plausibly be resolved under domestic law. It therefore refused to hear the Mossville complaints about alleged violations of the right to life and the right to health; these, it ruled, had to be brought in American courts under the American Clean Air and Clean Water Acts. But the IACHR takes a broader view of the right to equality before the law and the right to privacy and inviolability of the home than American courts do. They interpret the right to equality to include protection against discriminatory effects, not just against intentional discrimination. And although the IACHR has previously ruled that the right to privacy does not include protection against pollution, the commission has now decided to reconsider.

What does it mean?

International bodies, such as the IACHR, have very slow processes, and no direct power to enforce their decisions. However, they have significant “soft power”, and are generally taken seriously by democracies. If the IACHR decide that it is a serious breach of human rights to allow the cumulative effect of lawful pollution to affect human health in nearby communities, the US EPA will have to change how it regulates cumulative effects. Environmental justice, and the effect of industrial clusters on minority groups, is already an important priority for Lisa Jackson, the current Administrator of the EPA. Condemnation of US conduct by the IACHR would make this an even higher priority for the Obama administration. 

And where US environmental regulation goes, we usually go too.