Uprooting the Underclass: Comprehending Development Displacement as an Environmental Justice Issue

1. Introduction
Legal scholarship is belatedly addressing the problem of population movements caused by environmental
trauma,1 lagging far behind the efforts of other disciplines.2 Sociologists and anthropologists, for example, have
documented the different kinds and adverse effects of environmentally-triggered population displacements and
discussed ways to arrest their effects. 3 Legal scholarship is not only tardy, but also inconsistent. There are
disagreements on many aspects of the problem, from the basic definitions, to the causes, and the remedies
that have been recommended.
Of these efforts, some general observations can be made. First, legal scholars deal with the displacement of
peoples through environmental trauma as cross-boundary movements that can be addressed by international law
mechanisms. They maintain that the problem is the failure of the international community in specifying the duties
of states in addressing the plight of the victims of environmental abuse.
Second, legal scholars do not address the prevention of displacement, but focus on remedial work that
may be undertaken to mitigate the plight of the victims.4 These proposed remedies assume that environmental
trauma and the resulting displacement are inevitable, and ignore the fact that such damage can be caused by the
implementation of government policies that may be altered.
Third, in their attempt to identify the causes of such displacement, scholars target multilateral agencies
involved in the funding of development projects and suggest policy reforms within these institutions.5 This thread
in the literature assumes that displacement is an exclusive feature of the Third Worlds development process.
Given the premises underlying these works, the proposed remedies uniformly revolve around the use of the
international legal regime. They suggest extending refugee law to embrace environmental refugees, adopting
new conventions, controlling the funding of environmentally destructive projects by multilateral development
agencies, and recognizing international norms to augment the existing international legal framework.
These solutions, I submit, are inadequate, because they fail to consider the different kinds of population
displacements. Population movements can be triggered involuntarily by natural disasters and technological
accidents, or deliberately by state-sanctioned development policies. Rather than accounting for these variations,
scholars often lump together all the victims of environmental trauma, and tag them as environmental
refugees. The proposed international law remedies are not responsive to the needs of displaced populations
because they fail to account for the peculiar circumstances triggering the different kinds of population
1 There are many ways through which the displacement of peoples can be triggered and many are provoked by direct or indirect
changes in the environment. I use environmental trauma broadly to refer to all environmentally-related causes of displacement such as
war, natural disasters, accidents and state development efforts.
2 See generally, INVOLUNTARY MIGRATION AND RESETTLEMENT: THE PROBLEMS AND RESPONSES OF
DISLOCATED PEOPLE (Art Hansen & Anthony Oliver- Smith eds., 1982) [hereinafter INVOLUNTARY MIGRATION].
3 See Ibrahim F. I. Shihata, Legal Aspects of Involuntary Population Resettlement, in ANTHROPOLOGICAL APPROACHES TO
RESETTLEMENT: POLICY, PRACTICE, AND THEORY 39 (Michael M. Cernea & Scott E. Guggenheim eds., 1993) [hereinafter
ANTHROPOLOGICAL APPROACHES]. See also, infra notes 203-206 and accompanying text.
4 As one author noted, the best solution to the migration that results from environmental problems is to solve the environmental
problems themselves, but these constitute many problems which would continue even if beneficial environmental programs were
implemented globally and immediately. Gregory S. McCue, Note, Environmental Refugees: Applying Environmental Law to
Involuntary Migration, 6 GEO. INTL ENVTL. L. REV. 151, 158 (1993).
5 In contrast, others almost uniformly describe the state, at least in part, as the enemy. See generally, IN DEFENSE OF
LIVELIHOOD: COMPARATIVE STUDIES ON ENVIRONMENTAL ACTION (John Friedman & Haripriya Rangan eds., 1993)
[hereinafter, IN DEFENSE OF LIVELIHOOD].

movements.
This paper focuses on those forcibly displaced by state-initiated development projects such as energygenerating projects or resource-extractive activities. I make three main arguments in this paper. The first is
that development displacement is less of an international law or refugee law issue and is more of an
environmental justice issue. As such, the solutions to displacement that should be considered are those that have
been advanced by the environmental justice movement. I argue that development displacement is the
quintessential form of environmental injustice because economic development is championed as
unquestionably advantageous to populations as a whole. In the rush towards development, however, certain
segments of society, the underclass,6 bear the negative impacts of these efforts.7 This paper is not a definitive
statement on the proper approach to dealing with the issue of development displacement. Rather, it suggests an
alternative framework for the analysis of this phenomenon. My second argument is that development
displacement is a function of class structures in society. This paper will show that development displacement is
the result of the struggle between those with political power and those without, and that even in
economically advanced countries like the United States, poor and minority groups are more likely to be
victims of environmental trauma resulting from development policies ostensibly designed for the benefit of the
majority. Although large-scale displacements in the Third World receive abundant attention,8 the fact that
development displacement occurs even in economically advanced states is seldom acknowledged.9
Finally, I argue that the legal communitys faith in the international legal regime is misplaced because it
ignores the fact that struggles against development displacement are manifestations of the affected peoples
desire to be recognized as a community. The proposed international law remedies often rely on the
intervention of third parties, and do not acknowledge popular resistance against state hegemony.
6 Although admittedly a contentious term, underclass is used here to mean those in persistent poverty, who are not able, for whatever
reason, to gain a living within the dominant processes of production, distribution, and exchange. ROSEMARY CROMPTON, CLASS
AND STRATIFICATION: AN INTRODUCTION TO CURRENT DEBATES 158 (1993). Part of the debate about the use of the term
underclass revolves around the fact that it is often used to describe those whose poverty is attributable to their own actions, and who are
deemed to be undesirable and undeserving of government assistance. See Herbert J. Gans, The So-Called Underclass and the
Failure of Antipoverty Policy, in MYTHS ABOUT THE POWERLESS: CONTESTING SOCIAL INEQUALITIES 87, 88-91 (M.
Brinton Lykes, et al. eds., 1996), and CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE POVERTY, AND THE
UNDERCLASS 147 (1993). Even in the pejorative sense, underclass is consistent with my argument that the victims of displacement
are often those deemed to be incapable of contributing meaningfully to society and who should, therefore, be expunged.
7 The literature on environmental justice seldom addresses the displacement of peoples. Even in discussing the Third World,
environmental justice advocates limit their discussion to the export of waste and the introduction of risky technologies. See Robert D.
Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement, in CONFRONTING ENVIRONMENTAL
RACISM: VOICES FROM THE GRASSROOTS 15, 19-20 (Robert D. Bullard ed., 1993). See also Dana Alston & Nicole Brown,
Global Threats to People of Color in id. at 179 (discussing the effects of war, underground nuclear testing, and the international
waste trade), Hugh J. Marbury, Note, Hazardous Waste Exportation; The Global Manifestation of Environmental Racism, 18 VAND. J.
TRANSNATL L. 251 (1995) (discussing hazardous waste exportation to developing countries), MARY E. ROGGE, Environmental
Injustice: Social Welfare and Toxic Waste, in THE GLOBAL ENVIRONMENTAL CRISIS: IMPLICATIONS FOR SOCIAL
WELFARE AND SOCIAL WORK 53, 64-66 (Marie D. Hoff & John G. McNutt eds., 1994), and Danette L. Bloomer, Comment,
Beyond Our Own Backyard: Considering the Legal Implications and Environmental Risks of Importing Spent Nuclear Fuel, 10 J.
ENVTL. L. & LITIG. 157 (1995).
8 See e.g., Anne McIlroy, Hydro-Quebec stands alone in its attitude to Chines Dam, 1/16/95 Montreal Gazette A4, Mukul
Sharma, India-Development: Towards a National Rehabilitation Policy, 1/10/95 Inter Press Serv. (Pg. Unavail. Online), 1995 WL
2257921, Chee Yoke Ling, Environmental Protection Versus Development, Business Times, January 5, 1994 (available in LEXISNEXIS, Allwld file), Leah Makabenta, Putting Energy Before Ecology?, Inter Press Service, February 1, 1994 (available in LEXISNEXIS, Allwld file), War drums beat as villagers oppose Indian army, Janes Defence Weekly, May 21, 1994 (available at LEXIS,
Allwld file), Mahesh Uniyal, India: Development Projects Ignores Human Costs, Say Activists, Inter Press Service, August 7, 1992
(available at LEXIS-NEXIS, Allwld file).
9 See e.g., Jane Hadley, Attorney General is Asked to Stop Removal of Shanties, 4/14/94 Seattle Post-Intelligencer B2, 1994 WL
6138979, and T. Scudder, Development-Induced Relocation and Refugee Studies: 37 Years of Change and Continuity Among Zambias
Gwembe Tonga, 6 JOURNAL OF REFUGEE STUDIES 123, 125 (1993) (dams in the United States and Canada have largely involved
the relocation of Native Americans).

Throughout this study, I emphasize that the state, acting with the elites, consolidates its power, and sees the
victims of development displacement (mostly indigenous peoples and rural communities) as incompatible with
the idea of the state.10 The exploitation of resources by the state requires a denial of the rights of people who
maintain these resource bases; the latter are expunged to facilitate exploitation. The issue becomes the
identification of factions in society who will benefit from resource use.11 Contrary to popular notions, the state
is a coercive organization with its own independent agenda, and is not a neutral arena where social classes,
interest groups, or social movements contend on equal footing.12 States often go beyond the interests of the
social groups within their jurisdictions and make unilateral decisions in developing public policies.
Governmental outputs are not the result of the interaction of the economic, political, and social forces in the
societys social system, but merely reflect the states independent agenda that is often ignored in studies of the
impacts of resource development.13
Part 2 of this paper provides an overview of the problem. It examines those who are likely to be victims of
development displacement, as well as the effects of displacement on these communities. Part 3 reviews the legal
literature on population displacements caused by environmental trauma. It criticizes these approaches as failing
to distinguish between the different kinds of displacements and argues that the proposed solutions will do little to
alleviate development displacement. Part 4 is an overview of the environmental justice movement, and the
solutions that the movements advocates have advanced. The movement is analyzed to show that development
displacement should be considered an environmental justice issue and that it can be dealt with more effectively
under this framework. Part 5 of the paper analyzes the role of social stratification in the states decision to
distribute the effects of development. This part focuses on the United States to emphasize that development
displacement is also the rule in advanced capitalist societies. Finally, in Part 6, I examine the responses of
communities to development displacement. I argue that development displacement is a form of oppression and
that community resistance reflects more than a desire to be included in a democratic process; it is a challenge
from the underclass to political hegemony. I argue that the solutions that have been proposed by legal scholars
are unresponsive because they ignore this fundamental feature of the struggle against development displacement.
2. The Problem
Consider two cases from the Philippines. In 1991, environmental groups warned that the Philippine
National Oil Companys (PNOC) proposed construction of a geothermal plant on Mt. Apo, located in the
Southern part of the country, would cause irreparable damage to the mountains ecological system and the
displacement of more than 20,000 indigenous peoples. But the then Secretary of the Department of
Environment and Natural Resources (DENR) responded by saying, Its too early to talk about conservation.
We have to consider development first at this point.14 In December 1992, the DENR justified the issuance of
another permit for the operation of a coal-fired power plant in Masinloc, Zambales, by saying that while it was
aware of the environmental concerns of the project opponents, the times call for greater national interests to be
served.15

10 Although I discuss resistance as an overt form of protest, there is scholarly attention devoted to the study of flight as aform

of
resistance that tests, challenges and sometimes changes hegemonic orders. See Michael Adas, From Avoidance to Confrontation:
Peasant Protesting Precolonial and Colonial Southeast Asia, in COLONIALISM AND CULTURE 89 (Nicholas B. Dirks ed., 1995).
Subordinate groups resort to open confrontation because avoidance tactics prove inefficient. Id. at 117.

11 See Jason W. Clay, States, Nations, and Resources: An Interdependent Relationship?, 19-SPG FLETCHER F. WORLD AFF. 11-13
(1995). While Clays discussion is limited to the conflict between the state and indigenous nations, I find his analysis applicable to
other victims of development displacement.
12 Raymond Hall, Exploring Sociocultural Impacts: The Application of a Model, in DIFFERENTIAL SOCIAL IMPACTS OF RURAL
RESOURCE DEVELOPMENT 261, 263 (Pamela D. Elkind-Savatsky ed., 1986) [hereinafter DIFFERENTIAL SOCIAL IMPACTS].
13 Id. at 263-264.
14 Manila Chronicle, May 2, 1991, at 1.
15 Philippine Daily Inquirer, Dec. 29, 1992, at 1, 10.

Indigenous peoples opposed the geothermal plant primarily because they consider Mt. Apo a sacred
place.16 But the tribes and other non-governmental organizations are also concerned with the health effects of the
project. People living near the mountain have traces of arsenic in their bodies at levels more than twice what is
considered normal.17 Residents complain of skin irritations, crop damage, and turbid water coming out of
household taps. Lakes have turned murky with sulfur residues lining its sides.18 At least 68 families have been
displaced by the project since 1987, and the PNOC was accused of reneging on its promise to provide new homes
at a relocation site. No houses have been built by the government; only tents which shelter several families
each.19 Indigenous peoples were promised jobs but many ended up with contract work to dig canals and carry
rocks. The contracts only lasted for two to three months.20
The residents of Masinloc opposed the coal-fired plant because they claimed that it will ruin the towns
rich fish resources and their renowned century-old mango plantations.21 They claimed that toxic emissions from
the plant will pollute their water supply.22 Some ninety percent of an estimated 3,000 families that were directly
affected by the project23 claimed that there was a lack of public participation in the approval of the project and a
lack of access to information.24
These are illustrations of the tension between the states right to exploit its natural resources and its duty to
provide for its citizens. They also demonstrate how, as in many parts of the world, state development efforts
threaten to or destroy communities. While proponents of development are quick to point to compensation
mechanisms for the loss of property, these would not apply to the majority of populations affected by
displacement because the latter are rarely the legal owners of the resources involved. State development
efforts, however, displace even those whose rights do not amount to ownership.25 As one author explained,
the human victims of ecological degradation are typically poor, including the rural-poor (the land poor and the
landless for whom ecological questions are a matter of life and death), the unemployed and underemployed in
the cities, and the oppressed minorities in the First World.26 Even if the displaced peoples can be compensated,
this cannot account for the emotional and cultural losses which result when people are uprooted from their
16 One tribal leader explained that, This mountain is sacred to us. It was entrusted to us by Apo Sandawa (A tribal deity)... Apo
Sandawa told us to look after his home and endure whatever hardships we may encounter here, but he said we should never ever leave
this land and settle elsewhere. Lian Nemenzo, On a Dormant Volcano, Tribes Oppose Power Project, 9/21/92 Inter Press Serv. (Pg.
Unavail. Online), 1992 WL 2489088.
17 Lan Mercado, A Mountain of Arsenic, 3/3/95 Inter Press Serv. (Pg. Unavail. Online), 1995 WL 2259355. Tests by the Fukuoka
Institute of Public Health found very high concentrations of arsenic at one of PNOCs waste water dump sites.
18 Nemenzo, supra note 16.
19 Id.
20 Accord Paves Way for Completion of Geothermal Plant, 1/25/93 Inter Press Serv. (Pg. Unavail. Online), 1993 WL 2544588. For a
discussion on the indigenous peoples opposition to the PNOC plant, see Chip Fay, et al., The Destruction of Mt. Apo: In Defense of
Bagobo Ancestral Domain, 2:2 PHIL. NAT. RES. L.J. 18 (1990).
21 Ramon Isberto, Philippines-Environment: Power Plant Opponents Target Banks, 12/3/93 Inter Press Serv. (Pg. Unavail. Online),
1993 WL 2532603.
22 Philippines Tightens Security in Power Plants, Reuter Newswire, May 3, 1993, available in LEXIS-NEXIS (Allwld file).
23 Id.
24 Barbara Borst, Asia-Finance: NGOs Knock ADB Funded Projects, 5/3/94 Inter Press Serv. (Pg. Unavail. Online), 1994 WL
2581921. The opposition eventually waned and dissipated because of sheer exhaustion on the part of the residents. Many accepted the
compensation package offered by the National Power Corporation rather than take their chances in the outcome of eminent domain
proceedings. See Vicente Paolo B. Yu III, People Empowerment and Energy Resource Development: Possibilities for Participatory
Energy Resource Development in the Philippines, 7 PHIL. NAT. RES. L.J. 35, 77 (1996). See also PHILIPPINE CENTER FOR
INVESTIGATIVE JOURNALISM, SAVING THE EARTH: THE PHILIPPINE EXPERIENCE (Eric Gamalinda & Sheila Coronel eds.,
1993) for accounts of community resistance to government development projects in the Philippines.
25 Ibrahim F.I. Shihata, The World Bank and Human Rights: An Analysis of the Legal Issues and the Record of Achievements, 17 DEN. J.
INTL L. & POLY 39, 63 (1988). See also Shihata, supra note 3 at 50.
26 James OConnor, Uneven and Combined Development and Ecological Crisis: A Theoretical Introduction, 30(3) RACE AND
CLASS 1, 2 (1989).

homes.27 Infrastructure projects produce both human displacement and impoverishment. They create landless
workers or squatters who face continuing risks of eviction. Resettlement, the conventional remedy for
displacement, fails to provide adequate reparation, violates rights, and inflicts economic harms. In addition,
populations that are forcibly removed are resettled in unsuitable environments in terms of health and security.
Displacement also engenders insecurity and deprives people of their dignity. It breaks links to the past, and makes
the displaced groups dependent on others for their basic needs.28 It provokes drastic changes in the environment,
productive activities, social organization and interaction, and leadership and political structure. It produces
feelings of powerlessness and alienation. Community structures and social networks may be destroyed when
groups are dispersed to different resettlement sites.29 The effects of displacement on the social fabric occurs at
many levels. Production systems are dismantled and residential communities and settlements are disorganized.
Kinship groups and family systems are scattered. Informal social networks, trade linkages, and labor markets
are disrupted. Formal and informal associations suffer depleted memberships and become non- functional.
Traditional authority and management systems tend to lose their leaders. Abandonment of social markets, such
as ancestral shrines and graves, or spatial context, such as sacred mountains, water courses or trails, severs
physical and psychological linkages with the past and saps the roots of the peoples cultural identity. There is
evidence to suggest that the cumulative effect of the disruption of the social fabric of a society leads to
impoverishment that increases in time.30 The states attempt to acquire and control resources fuels hostility
from affected communities and this in turn makes repression of the latter imperative. Relocation and
resettlement programs become the tools to control these populations.31
3. The State of Legal Scholarship
Definitions
Damage to the environment causes population movements. Many areas are becoming unfit for human
habitation for many reasons including unsustainable land use practices which can cause long-term
environmental degradation, or technological accidents such as nuclear disasters which can instantly render lands
unhabitable.32 Displacements, therefore, can be the temporary effect of a sudden reversible environmental
27 Shihata, supra note 25 at id. This is especially true for indigenous peoples. See generally, Robert K. Hitchcock, International
Human Rights, The Environment, and Indigenous Peoples, 5 COLO. J. INTL ENVTL. L. & POLY 1 (1994).
28 James C. N. Paul, International Development Agencies, Human Rights and Humane Development Projects, 17 DEN. J. INTL L.
& POLY 67, 92-93 (1988).
29 Anthony Oliver-Smith, Involuntary Resettlement, Resistance and Political Empowerment, 4 JOURNAL OF REFUGEE STUDIES
132, 133 (1991). The short-term consequences of dislocation can include the loss of productive assets, dismantling of social networks,
destruction of cultural property, and increased morbidity and mortality rates for others. Shihata, supra note 3 at 39-40. See also William
L. Partridge, Involuntary Resettlement in Development Projects, 2 JOURNAL OF REFUGEE STUDIES 373, 374-377 (1989).
30 See Michael M. Cernea, Involuntary Resettlement: Social Research, Policy, and Planning, in PUTTING PEOPLE FIRST:
SOCIOLOGICAL VARIABLES IN RURAL DEVELOPMENT, 188, 195 (Michael M. Cernea ed., 1991).
31 Clay, supra note 11 at 16. This paper does not address urban displacement because it is inherently different. See Peter W. Salsich,
Displacement and Urban Reinvestment: A Mount Laurel Perspective, 53 U. CIN. L. REV. 333 (1984). Urban displacement occurs
through, a) clearance and redevelopment of residential areas for commercial and industrial purposes or for public facilities, b)
demolishing buildings which are adjudged to be unsafe if rehabilitation is not feasible, c) withdrawal of buildings from the market if the
owners cannot rehabilitate them to satisfy code violations, d) substantial rehabilitation of residential structures, where the interior of the
building is completely redone, e) the conversion of rental property to owner-occupied property, f) increased costs of occupation, and g)
the failure of subsidized housing projects. Id. at 340-343. Urban displacement focuses on gentrification, which is the displacement that
results from urban revitalization efforts that make certain areas too expensive for low-income communities. Gentrification describes a
trend where underdeveloped areas become revitalized as affluent people invest in homes and upgrade the neighborhood
economically. This causes the eviction of the less affluent residents who can no longer afford the increasingly expensive housing in their
neighborhood. Jon C. Dubin, From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income Communities of
Color, 77 MINN. L. REV. 739, 743 n.13 (1993). See also, Norman Siegel, Homelessness: Its Origins, Civil Liberties Problems and
Possible Solutions, 36 VILL. L. REV. 1063 (1991) (discussing how development projects can cause displacement directly, or indirectly
through reduced services, harassment, or rent increases), and Symposium, Litigating and Legislating for Affordable Housing, 13 N.Y.U.
REV. L. & SOC. CHANGE 911-988 (1984-1985).
32 Jodi L. Jacobson, Environmental Refugees: A Yardstick of Habitability, WORLD WATCH PAPER NO. 86 at 5 (November 1988).

change, or a permanent experience triggered by long- term or irreversible environmental change.33 It can be
gradual or sudden, voluntary or involuntary, large-scale or small-scale, and it may take place within a state or
across state borders.34 Population movements caused by environmental trauma constitute the single largest class
of displaced persons in the world, and those permanently displaced are the largest and the fastest growing.35 The
estimates of the number of people displaced by environmental causes range from a low of 10 million to a high of
850 million.36
The unsuitability of land for human habitation can be the direct result of the implementation of
government development programs. One author noted that:
Over the last six decades, the builders of dams have evicted from their homes and
lands many tens of millions of people, almost all of them poor and politically
powerless, a large portion of them from indigenous and other ethnic minorities. . . .
In many cases the people have been flooded out with only minimal
compensation often none at all and many once self -sufficient farming
families have thus been reduced to eking out a living as migrant labourers or slumdwellers.37
Millions more have been displaced by canals, irrigation schemes, roads, power lines and industrial
development which follow dams. Others have lost access to their sources of livelihood like fish, game, grazing
land, timber, fuelwood and wild fruits and vegetables. Downstream communities have been deprived of the
annual flood which once irrigated their fields. Millions have suffered from the diseases which dams and large
irrigation projects in the tropics almost inevitably bring in their wake.38 Despite the lack (or impossibility) of
precise statistics, there is a consensus that the number of internally displaced people worldwide surpasses the
number of those usually encompassed by the concept of international (or external) refugees. The U.S. Council
for Refugees has estimated that by the end of 1987 the number of cross-boarder refugees worldwide stood
at about 15.4 million; the same upheavals produced at least an additional 17 million people displaced
33 JoAnn McGregor, Refugees and the Environment, in GEOGRAPHY AND REFUGEES: PATTERNS AND PROCESSES OF
CHANGE 157, 158 (Richard Black and Vaughan Robinson eds., 1993).
34 Sarah Collinson, International Migration and Population Pressures: An Essay on The Ditchley Foundation Conference Held at
Ditchley Park, Oxfordshire, England, 16-18 September 1994, 7 JOURNAL OF REFUGEE STUDIES 418, 427 (1994).
35 Jacobson, supra note 32 at 37-38. Jacobson classifies them as those displaced temporarily because of a local disruption such as an
avalanche or earthquake; those who migrate because environmental degradation has undermined their livelihood or poses unacceptable
risks to health; and those who resettle because land degradation has resulted in desertification or because of other permanent and
untenable changes in their habitat.
36 Professor Norman Myers of Oxford University estimates that there are around 25 million environmental refugees around the
world. He defines such refugees as those forced to abandon their land because of drought, erosion, desertification and other problems
linked to environmental damage and exacerbated by demographic pressures and poverty. He expects the figure to rise to 50 million by the
year 2000. 50 Million Environmental Refugees by the Year 2000?, Europe Information Service, September 5, 1995 (available in LEXISNEXIS, Curnws file). The disparities in the estimates are due to the fact that many studies on population movements use different
factors in making their estimates. See, Migration, in GLOBAL TRENDS: THE WORLD ALMANAC OF DEVELOPMENT AND
PEACE 123, 129-130 (Ingomar Haucher and Paul M. Kennedy eds., 1994). The article limits the causes of environmental displacement
to drought, famine, floods, and volcanic activity. See also Barbara Hassell-Bond, et al., Counting the Refugees; Gifts, Givers,
Patrons, and Clients, 5 JOURNAL OF REFUGEE STUDIES 205 (1992) (explaining the difficulties in accurately determining the
numbers of refugees).
37 PATRICK MCCULLY, SILENCED RIVERS: THE ECOLOGY AND POLITICS OF LARGE DAMS 65-100 (1996). Some 20
million people have been uprooted by development projects in India, while some 6.5 million people have been displaced by
irrigation projects. Some were directly displaced by the projects while others were forced to move as land and water resources were
adversely affected by these projects. Susan Forbes Martin, The Inhospitable Earth, REFUGEES (No. 89-May 1992), at 12, 13-14.
Thousands are displaced through the acquisition of land for construction of housing, drinking water systems, airports, mines,
plantations, cattle ranches, sea ports or factories. Partridge, supra note 29 at 375. See also RICARDO CARRERE & LARRY
LOHMANN, PULPING THE SOUTH: INDUSTRIAL TREE PLANTATIONS & THE WORLD PAPER ECONOMY (1996)
(discussing displacements through tree plantations in Brazil, Chile, South Africa, Indonesia, and the Philippines).
38 MCCULLY, id. at 66.

internally. These figures do not include those displaced internally by planned development programs. Despite
the huge number of internal refugees, however, at present no international agency has responsibility for
ensuring the adequacy of protection and assistance, including health care, for internally displaced persons.39
Regardless of the cause, populations uprooted by environmental disruption have been collectively
labelled as environmental refugees. Environmental refugee is used to describe peoples displaced through
natural and man-made disasters and environmental degradation. They are people who have been forced to
leave their traditional habitat, temporarily or permanently, because of environmental disruptions (natural and/or
triggered by people) that jeopardize their existence and/or seriously affect the quality of life, as opposed to
people displaced for political reasons or by civil strife, and migrants seeking better jobs on purely economic
grounds.40 According to El-Hinnawi, environmental refugees are: a) those who are temporarily displaced by a
natural disaster, b) those who are permanently displaced because of changes in their subsistence base caused
by development projects, and c) those who are temporarily or permanently displaced because of
environmental degradation affecting their quality of life.41
This definition, however, implies that the movement is prompted solely by environmental reasons, to
which political developments are entirely unrelated. Qualifying these movements as environmental is illadvised because under the international refugee regime, a purely environmental cause of displacement does
not entail persecution on the part of the state of origin. It may encourage receiving states to regard displacees
as economic migrants to avoid their responsibility in providing protection and assistance.42 Environmental
refugee falsely suggests distinctions between overlapping and interrelated causes. Environmental problems can
have political roots particularly in cases of drought or famine. People become victims because their coping
strategies have been undermined directly or indirectly by the state, or their recovery prevented by failure to
provide insurance and relief. War also interferes with peoples strategies for coping with environmental
viability. Population movement is only one survival strategy used simultaneously or consecutively with others,
such as eating bush foods, selling assets, wage-labor, or short-distance migrations to less affected areas.43
The use of the term refugee has also been disputed because it assumes that environmental trauma
invariably causes cross-boundary movements and that it necessarily implicates the international refugee regime
which was not designed to address environmental causes of displacement. Despite the numbers of peoples
involved in environmentally-triggered migrations, most of these occur within the borders of the poorer states of
the world, drawing little international attention.44

39 Michael M. Cernea, Internal Refugee Flows and Development-Induced Population Displacement, 3 JOURNAL OF REFUGEE
STUDIES 320 (1990), citing GEORGETOWN UNIVERSITY, THE GEORGETOWN DECLARATION ON HEALTH CARE FOR
DISPLACED PERSONS AND REFUGEES (1988). Large hydroelectric dams are the main causes of forced relocation. BRUCE RICH,
MORTGAGING THE EARTH: THE WORLD BANK, ENVIRONMENTAL IMPOVERISHMENT, AND THE CRISIS OF
DEVELOPMENT 156 (1994).
40 McGregor, supra note 33 at 157, citing ESSAM EL-HINNAWI, ENVIRONMENTAL REFUGEES 4 (1985).
41 Id. at 4-5.
42 Id. States can define migrants in a number of ways to avoid responsibility under the international refugee regime. Theycan
designate them as boat people, economic migrants, displaced persons, illegal aliens, or those who have been permanently
resettled elsewhere. See Carlos Ortiz Miranda, Toward a Broader Definition of Refugee: 20th Century Development Trends, 20
CAL. INTL L.J. 315 (1990). See also Maria Stavropoulou, Indigenous Peoples Displaced from Their Environment: Is There
Adequate Protection?, 5 COLO. J. INTL ENVTL. L. & POLY 105, 120 (1994) (criticizing the use of environmental
refugee as erasing the distinctions between 1) migrants and refugees, and, 2) refugees and internally displaced people.

43 McGregor, supra note 33 at 158-159.

44 Collinson, supra note 34 at id. See infra, Part 3 for a discussion of the international refugee regime. See also Myron Weiner, Bad
Neighbors, Bad Neighborhoods: An Inquiry into the Causes of Refugee Flows, 21 INTERNATIONAL SECURITY 5, 9-11 (1996)
(discussing how cross-border movements are caused only by interstate wars, ethnic conflicts, non-ethnic civil conflicts, and the actions
of authoritarian and revolutionary regimes).

Because population movements are triggered in several ways, a single solution is unrealistic. This study
looks into those who are forcibly removed by state development efforts. I use the phrase development
displacement to avoid invoking the international refugee regime, an already well-defined body of law that was
never devised to address the victims of environmental trauma. Similarly, it does not discount the possibility that
the environmental causes or migration are actually politically motivated.
Making distinctions among population movements is not a novel task. As early as 1958, anthropologists
have been preoccupied with the classifications of displaced peoples. William Peterson distinguished between
those who retained some power to decide whether to leave a place, and those who had little or no such power.
The latter groups are forced or compelled migrants and are essentially passive.45 Forced population movements
are closely connected with a controlling social organization that overpowers individuals and directs their
movements in one way or another, and with the existence of cultural and racial differences in the society of
origin. In short,
forced migration is distinguished from voluntary migration by the diminished
power of decision in the former, sometimes reaching an extreme in which the
forced migrants are totally powerless. Although natural disasters are not mentioned
by most theorists as a cause of forced migration, the same element of powerlessness
applies. Another important distinguishing factor is the original absence on the part of
forced migrants of a desire or motivation to leave their place of residence... [T]he
forced migrant is more oriented towards retention or reestablishment of past conditions
than the voluntary migrant.46
Anthropologists have also addressed the plight of development refugees those dislocated by states
for the construction of development infrastructures.47 This phenomenon has also been called developmentinduced displacement. Induced development refers to development stimulated by a deliberate program, typically
initiated by government, which uses public financial resources to create new infrastructure or other economic
assets and thus triggers or accelerates growth and change.48 Resettlement efforts caused by development
projects are planned, deliberate displacements provoked by programs that purposely pursue change, and can be
subjected to mitigatory planning to reduce the need to displace in the first place.49
Development-induced displacement differs from other forms of displacement in many ways. First, most
voluntary movements, such as settlement in frontier areas, are characterized by choice. Involuntary movements
are attended with more anxiety and insecurity because they result from a lack of options. Second, voluntary
settlement programs usually attract young families in the early stage of the household life cycle. Involuntary
resettlements are indiscriminate, and can affect everyone at the same time. It severs economic and social ties
with homes that would normally be present for the benefit of the voluntary migrant.50 Third, the displacement
caused by development projects is the direct result of a planned political decision to take land away from its
current users, and are driven by actively pursued policies. Finally, people displaced by war or natural disasters
45 Anthony Oliver-Smith & Art Hansen, Involuntary Migration and Resettlement: Causes and Contexts, in INVOLUNTARY
MIGRATION, supra note 2 at 1, 3, citing William Petersen, A General Typology of Migration, 23 AMERICAN SOCIOLOGICAL
REVIEW 256-266 (1958).
46 Id., citing Jacob Eichenbaum, A Matrix of Human Movement, 13 INTERNATIONAL MIGRATION 21-41 (1975).
47 Oliver-Smith, supra, note 29. See also Scudder, supra note 9 at 125. These peoples are also called oustees, evictees,
displacees, resettlers, relocatees, and project affected persons. Cernea, supra note 39 at 321.
48 Michael M. Cernea, Anthropological and Sociological Research for Policy Development on Population Resettlement, in
ANTHROPOLOGICAL APPROACHES, supra note 3 at 14.
49 Michael M. Cernea, THE URBAN ENVIRONMENT AND POPULATION RELOCATION (World Bank Discussion Papers No.
152, 1993) at 11. I do not attempt to address the voluntary movement of peoples, or involuntary movements caused by natural
changes in the environment or accidents, although human factors may have contributed to both. See also Oliver-Smith, supra note 29 at
135.
50 See also, Partridge, supra note 29 at 375.

are often able to return to their homelands once the disturbance has subsided, which is not an option for those
displaced by development.51
The Causes of Displacement
Attempts to analyze population displacements use classification systems that overlap, and often minimize the
human role in displacement. One author identifies the environmental causes of migration as: a) long-term
degradation, b) sudden environmental disruptions, and c) accidents.52 This classification does not distinguish
between the natural and human stimuli for environmental trauma. Long-term environmental degradation such as
desertification, for example, is caused by both human and climatic factors.53 Sudden environmental disruptions
or natural disasters have also been attributed in part to faulty economic development.54
Michelle Leighton Schwartz identifies the causes of environmental migration as: a) irrigation and floodcontrol projects, b) desertification, and c) the policies of International Financial Institutions,55 unperturbed by
their overlapping nature. International Financial Institutions, for example, fund irrigation and flood-control
projects that have adverse impacts on the environment. These projects on the other hand can cause slow onset changes in the environment that lead to desertification.56
Perhaps the most elaborate classification has been developed by Maria Stavropoulou. She defines
displacement as the forced, forcible, or involuntary movement of people from their area of habitual residence,
including all cases of expulsion, deportation, forced resettlement, relocation, and transfer, whether across
national borders or within the home country. She uses the term displaced to refer to refugees, asylum
seekers, persons internally displaced or forcibly resettled, expellees, and uprooted individuals or groups.57
She divides the causes of displacement into root and proximate causes. She suggests that the root
cause of population movement is foreign policy formulation. The way to address the root cause would be to
integrate the effects of foreign policies.58 The proximate causes of displacement are deliberate displacement and
51 Scott E. Guggenheim & Michael M. Cernea, Anthropological Approaches to Involuntary Resettlement: Policy, Practice, and
Theory, in ANTHROPOLOGICAL APPROACHES, supra note 3 at 1, 3-4.
52 McCue, supra note 4 at 156.
53 See William C. Burns, The International Convention to Combat Desertification: Drawing a Line in the Sand?, 16 MICH. J. INTL
L. 831 (1995). Overcultivation, overgrazing, deforestation, and irrigation and salinization contribute to desertification. On the other
hand, the sparse vegetation resulting from rainfall variations result in erosion also accelerates desertification. See also Alastair Iles,
Recent Development, The Desertification Convention: A Deeper Focus on Social Aspects of Environmental Degradation?, 36 HARV.
INTL L.J. 207, 208 (1995) (pointing out that the causes of desertification are principally human and that the natural processes of
land degradation have been exacerbated by human factors).
54 See C. Russell H. Shearer, International Environmental Law and Development in Developing Nations: Agenda Setting,
Articulation, and Institutional Participation, 7 TUL. ENVTL. L.J. 391, 400, n.47 (1994) citing Address by Dr. James Lee, Director of
Environmental and Scientific Affairs, World Bank, American Bar Association Standing Committee on Environmental Law Panel (July
1985), reprinted in The Global Environment: Challenges, Choices, and Will, 16 ENVTL. L. REP. (Envtl. L. Inst.) 10,255 at 10,256
(Sept. 1986). See also Maria Stavropoulou, The Right Not to be Displaced, 9 AM. U. J. INTL L. & POLY 689, 704 (1994)
(discussing how in theory, human activity is responsible for all environmental causes of displacement except earthquakes or volcanic
eruptions), and Jacobson, supra note 32 at 6 (the effects of natural disasters made worse by human activity, are adding to the ranks of
environmental refugees). But see Scott D. Davis, Liability for Induced Earthquakes, 9 J. ENVTL. L. & LITIG. 551 (1994).
55 Michelle Leighton Schwartz, International Legal Protection for Victims of Environmental Abuse, 18 YALE J. INTL L. 355, 376378 (1993). The contributions of international financial institutions to the displacement of peoples have been addressed by several
authors. See discussion in Part 3, infra.
56 Much of the displacement that occurs result from bilaterally and multilaterally funded development programs. See Clay,supra note
11 at 15.

57 Stavropoulou, supra note 54 at 690.

58 Id. at 696. In her words,Foreign policy studies often fail to adequately take into account migration considerations. These
studies separate such analyses from other international public policy issues, such as international trade. Commentators have
criticized this separation as reflecting ignorance of or indifference to the fact that foreign policy often affects patterns of

displacement as a by-product of other circumstances.59

Her definition of deliberate displacement includes deportation and forced relocation or resettlement. State
authorities, in this case, force people out of their homes, and either deport them or confine them in other areas,
possibly in other parts of the country, sometimes to facilitate the implementation of a development project. It
may also be used to control people, to enforce assimilation, to alter the demographic composition of a
territory, or to cut off logistical support for insurgent groups. This is also used as part of a tactical policy in
times of armed conflict, or to preserve the welfare of the people.60 On the other hand, she identifies four
circumstances that cause displacement: (a) systematic human rights violations;61 (b) war, armed conflict,
communal violence, and aggression;62 (c) development-induced relocation; and (d) damage to the environment.63
She explains that development-induced relocation affords minimal legal protection because it purportedly
benefits the national or local welfare, if not those who are displaced. The resettlement policies under these
circumstances apply to cases where development policies have destabilizing effects that cause massive
movements of people, such as opposition to a governments decision to implement a particular development
policy.64 Environment-related displacements may be both natural or manmade, and it is difficult to identify
who or what is responsible for the damage.65 These disruptions are elemental (such as cyclones), biological
(such as locusts), slow-onset (such as droughts), accidental, and those caused by development and urbanization,
and environmental warfare.66
For purposes of this paper, Stavropoulous attempt to refine the types of population movements is
ultimately confusing. Under her analysis, development displacement is both a form of deliberate displacement
and a by-product of other circumstances. Under the latter, it is both development-induced relocation and
environment-related displacement. The classification scheme allows development displacement to qualify under
any of the forms of forced population movements she has identified and obscures its distinct characteristics.
Anthropologists, on the other hand, have been more precise in their classification of population
displacements. World Bank anthropologist Michael Cernea distinguishes four causes of population displacement
as: a) wars and political turmoil, b) persecution (or fear of) based on ethnicity, race, or religion, c) natural
disasters, and d) development projects that deliberately cause major changes in land and water use.67 This
international population movements in unintended ways, such as through political or military interventions or the absence of
such interventions. The same practice applies to development aid and assistance policies, the hasty implementation of which
may actually stimulate migration or have other adverse effects. A number of studies reveal that states use political interests as
a goal or an instrument to implement change in migration. In such situations, clear questions arise as to the responsibility of
the migration-generating state.

59 Id., citing Comprehensive Study Prepared by Francis M. Deng, Representative of the Secretary-General on the Human Rights
Issues Related to Internally Displaced Persons, U.N. ESCOR, Hum. Rts. Comm., 49th Sess., Prov. Agenda Item 11(a), U.N. Doc.
E/CN.4/1993/35 (1993).
60 Id. at 701.
61 These are usually committed by a government, an insurgent group, or other authority, and occur in connection with armed conflict, and
include assassination, torture, and the destruction of physical property to intimidate or remove opposing factions and their sympathizers, as
well as acute forms of denial of the right to pursue economic activity and education, or the creation of certain economic and social
conditions that threaten peoples physical integrity and survival. Id., at 701-702.
62 Displacement in these cases is a by-product of aggressive behavior, alien domination, foreign military intervention and armed
conflict, whether deliberate or not. Displacement can also cause environmental damage, which might lead to mass migrations. Id.
63 Id. at 703.
64 Stavropoulou, supra note 54 at 702-703.
65 Id. at 703-704.

66 Id. at 704, citing REFUGEE POLICY GROUP, MIGRATION AND THE ENVIRONMENT (1992).
67 Cernea, supra note 39 at 323.
10

approach achieves several things. It separates the natural environmental causes of displacement from those that
result from the pursuit of government development policies. At the same time, it points out that the latter can
cause environmental damage. Cernea also clarifies that while other causes of population displacement can
animate cross-border movements, development-induced displacements are characteristically an internal
phenomenon.68 His classification is able to focus attention on a discreet group of displacees that are often
lumped together with every other kind of displaced group.
The following section discusses these inconsistent classifications that lead scholars to suggest solutions
that are unresponsive to the needs of development displacees.
Proposed Solutions
The Use of Refugee Law
Treating all the environmental causes of displacement as a refugee issue raises problems. Refugee law,
shaped largely under the Convention Relating to the Status of Refugees69 (Convention), was not designed to
address the plight of development displacees. It was designed to ensure that victims of oppression and
persecution forced to leave their countries would be treated properly by the international community. The
Convention defines refugee as a person who, as a result of events occurring before January 1, 1951, is
outside his or her former home country because of a well-founded fear of persecution for reasons of race,
religion, nationality, membership of a particular social group or political opinion.70 The fear of persecution
must arise from events associated with the Second World War or events occurring in Europe before January
1, 1951. The Convention was drawn up by the United States and its allies to apply largely to refugees
from Soviet Bloc countries.71 Although the 1951 dateline was removed by the 1967 United Nations Refugee
Protocol72 Protocol), the definition is still inadequate because populations today are compelled to leave their
countries for other reasons such as civil war, internal strife, foreign aggression and generalized violence or
disregard of human rights.73
68 According to Cernea, technical and planning agencies tend to omit these people from statistics, planning, and resource allocation,
because their houses are not destroyed. The denial of displacement status of these families belittles the adverse effects of projects
through the device of refusing to recognize the rights, losses, and legitimate entitlements of part of the population affected. Id. at 323324. There are similarities between international and internally displaced peoples as when government fails to ensure that
communities displaced by a public development project are compensated and assisted to resettle adequately. Id.
69 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T 6259, 189 U.N.T.S. 137.
70 The notion of persecution first appeared in the draft Constitution of the International Refugee Organization, introduced by the
Special Committee on Refugees and Stateless Persons, established by the Economic and Social Council in 1946. It was meant to limit the
grounds which would entitle a refugee to refuse to return to his or her country of origin and thus to become the concern of the
Organization. It was possibly intended to ensure that persons who merely disliked the political conditions in their country of origin should
not be in a position to claim the resources of the Organization. Ivor C. Jackson, The 1951 Convention Relating to the Status of
Refugees: A Universal Bias for Protection, 3 INTERNATIONAL JOURNAL OF REFUGEE LAW 403, 404-405 (1991).
71 Little protection is actually afforded to refugees even if they satisfy the requirements of the Convention. States can expel anyone
who can find sanctuary elsewhere, or provide only temporary shelter for those whom they choose or are required to retain. They do not
have to instruct embassies to process asylum applications, request persecuting states to allow the departure of their victims, provide
temporary sanctuary in the embassy, and they retain discretion in assessing claims to refugee status. The restrictive operation is due to
the fact that the Convention was not meant to meet the needs of the refugees but to govern disruptions of regulated international migration
in accordance with the interests of states. Tom J. Farer, How the International System Copes with Involuntary Migration: Norms,
Institutions and State Practice, 17 HUM. RTS. Q. 72, 78-79 (1995). Refugee law protects Western states from most people seeking
asylum, and gives states the authority to administer refugee law consistently with its own interests. Even if fully implemented, the system
is inconsistent with the attainment of humanitarian or human rights ideals on a universal scale. See James C. Hathaway, A Reconsideration
of the Underlying Premise of Refugee Law, 31 HARV. INTL L.J. 129, 133, 144 (1990).
72 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
73 Jackson, supra note 70 at 407. See also McGregor, supra note 33 at 160-161 (a narrow political definition of persecution excludes
those suffering economic and social persecution and the effects of war, as well as victims of natural disasters in countries where the
state offers no protection).

11

To be sure, the interpretation of the Convention has evolved. For example, although the Convention
referred to an individual, the Protocol made it apply to all new refugee situations, including those involving
groups. The United Nations High Commissioner for Refugees (UNHCR), with the approval of the General
Assembly (G.A.), developed the good offices procedure to enable it to act on behalf of those refugees
outside the competence of the United Nations. In 1972, this approach was used for internally displaced
persons.74 Since the late 1950s, the UNHCR was authorized to assist persons outside its competence, and it
now intervenes to assist people of concern - those displaced by a combination of factors such as war,
drought, and changing entitlements to food and other sources.75
Not all legal scholars agree that these changes are comprehensive enough to include environmental
migrants. Even within the UNHCR, it has been noted that there is a need to provide international protection
to persons outside the current international legal definition of refugee.76 Schwartz points out that other
instruments have adopted broader definitions of refugees. Regional instruments such as the Organization of
African Unity Convention (OAU)77 and the Cartagena Declaration78 consider other causes of dislocation,
although the definitions still require asylum-seekers to cross a border. If environmental disruptions seriously
disturb public order, those affected may be considered refugees within the OAU definition.79 It refers to
objective conditions in the country of origin, and allows refugee status to be recognized for groups rather than
individuals.80
The Cartagena Declaration, adopted by the Organization of American States, defines refugee as
including persons who have fled their countries because their life, safety or liberty have been threatened by
widespread violence, foreign aggression, domestic conflict, massive violation of human rights or other
situations that have seriously disturbed public order. Thus, even these more expansive definitions do not
74 Jackson, supra note 70 at 409-410.
75 McGregor, supra note 33 at 161. The number of people of concern to UNHCR has risen from 17 million in 1991 to 23 million in
1993 and to more than 27 million at the beginning of 1995. Of this figure, some 14.5 million are refugees (those who have crossed an
international border and have been granted asylum). The UNHCR is also involved with some 5.4 million who are internally-displaced
(but have not crossed international borders), and 4 million former refugees who have returned to their homeland. There are also some 3.5
million people outside their countries who have not been recognized as refugees and are considered as people of concern to the
UNHCR. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, THE STATE OF THE WORLDS REFUGEES: IN
SEARCH OF SOLUTIONS 19-20 (1995) [hereinafter STATE OF THE WORLDS REFUGEES].
76 Agencies within the United Nations have concluded that existing human rights and humanitarian law are not explicit in the rights
applicable to internally displaced people and have recommended that these principles be explicitly enunciated. See Francis M. Deng,
Frontiers of Sovereignty: A Framework of Protection, Assistance, and Development for the Internally Displaced, 8 LJIL 249, 281
(1995).
77 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (Addis Ababa:
Organization of African Unity, November 22, 1984).
78 Agencies within the United Nations have concluded that existing human rights and humanitarian law are not explicit in the rights
applicable to internally displaced people and have recommended that these principles be explicitly enunciated. See Francis M. Deng,
Frontiers of Sovereignty: A Framework of Protection, Assistance, and Development for the Internally Displaced, 8 LJIL 249, 281
(1995).
79 Schwartz, supra note 55 at 380. The OAUs Convention expands the definition of refugee to apply:to every
person who, owing to external aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country of origin or nationality, is compelled to leave his place
of habitual residence in order to seek refuge in another place outside his country of origin or nationality.
Convention Governing the Specific Aspects of Refugee Problems in Africa, June 20, 1974, art. I(2), 1001 U.N.T.S. 45, 47.
Quoted in Francis M. Deng, Protecting the Dispossessed: A Challenge for the International Community (Brookings Occasional
Paper, 1993), at 8.

80 McGregor, supra note 33 at 161-162. The agreement was drawn up in the context of liberation struggles against colonial powers
and disturbances which were assumed by the drafters to be of a political nature. Drought and other natural disasters as causes of
flight were not specifically intended in the drafting. Although the scope of this expanded definition is regularly applied to those for
whom economic protection by the state is not forthcoming, a restrictive interpretation excluding victims of ecological and man-made
disaster is not precluded. Id.

12

protect people who have been displaced within their countries by environmental trauma. These definitions
apply only to persons who have fled their country of origin or nationality, in conformity with existing
international legal principles.
Schwartz also points out that international humanitarian law provides little protection for victims of
internal disturbances. These persons consequently receive very little protection and assistance from human rights
organizations.81 The protection for internally displaced people is limited by the very fact that they are within
the borders of their own countries, so that the extension of refugee law to these people can at best be
partially helpful.82
Present trends also counsel against relying upon international refugee law. The U.N. has been
experimenting with alternative approaches to the refugee problem such as the establishment of safety zones
(Northern Iraq), the deployment of human rights monitors (Rwanda), the use of a regional peacekeeping force
(Liberia), the use of U.N. troops to protect the delivery of humanitarian assistance (Boznia and Herzegovina),
the introduction of regional safe havens (Haitian asylum seekers), and the establishment of a war crimes
tribunal (the former Yugoslavia and Rwanda).83 The U.N. is averting refugee movements by containing armed
conflicts and the population movements that they provoke. The international community has opted for an
integrated approach to the problem by protecting human rights, keeping the peace between the states, promoting
sustainable development, and managing international migration.84 The UNHCR has noted that states are less
committed to the principle of asylum, and are ignoring established humanitarian principles and norms.85
Traditionally, the UNHCR and other refugee organizations were concerned with the right of people to
leave their own country and to seek asylum, but not their right to live in safety and security in ones own country
and community. It also placed responsibility for solving refugee problems on the host countries, and not the
states from which they fled.86 The present approach assumes that population movements can be averted if the
threats which compel people to move are eliminated.87 The concept of prevention places a burden on states not
only to prevent the outflow of peoples, but to create the conditions that will induce them to return. The approach
has become preventive.88 These developments suggest that the traditional approach of relying upon receiving
states to grant asylum to cross-border population movements would be unavailing. Given the reluctance of
states to open their borders and the international communitys preference for averting or containing these
movements, it would be logical to address population displacements as a domestic issue.
Refugee law, therefore, is inadequate because it excludes those who are internally displaced, and
those externally displaced for reasons other than the established concept of persecution.89

81 In recent years, however, U.N. agencies, non-governmental organizations (NGOs), and foreign governments have experienced some
success in providing humanitarian assistance despite the non-cooperation of governments. Schwartz, supra note 55 at 381.
82 Deng, supra note 79 at 8
83 THE STATE OF THE WORLDS REFUGEES, supra note 75 at 14.
84 Id. at 15.
85 States are obstructing the arrival of asylum-seekers, containing displaced people within their homelands, and are returning refugees to
their countries of origin as promptly as possible. Id. at 16.
86 Id. at 30-31.
87 Prevention includes monitoring and early warning, diplomatic intervention, economic and social development, conflict resolution,
institution-building, the protection of human and minority rights, and the dissemination of information to prospective asylum-seekers. Id.
at 43.
88 Military intervention, for example, can be used to prevent human rights abuses. Provision of relief and rehabilitation assistance to
people who are still in their own country and establishing human rights monitors can encourage people to either remain in or to return to
their countries. Id. at 43-44.
89 See also Arthur C. Helton, Essay, Forced International Migration: A Need for New Approaches by the International Community, 18
FORDHAM INTL L.J. 1623, 1625 (1995).

13

Other International Law Solutions

One other proposed solution is the adoption of a new convention that will address the plight of
environmental refugees.90 This proposal, however, covers migrations caused by accidents and natural disasters,
and will not assist those who are displaced by state development efforts. Under this proposal, the problems of
the migrants will be addressed in the country of origin. It would confer the duty upon states to prevent
environmental disasters, to minimize damage and provide emergency assistance, and to compensate for injuries
which result from environmental damage.91
Another suggestion has been to reinterpret, expand, and modify existing human rights instruments and
procedures to protect the victims of environmental abuse. Professor Schwartz suggests that access to human
rights tribunals and national courts should be expanded to facilitate the presentation of environmental human
rights claims. Since the conventions and instruments under which various adjudicatory human rights institutions
operate do not expressly include the right to a clean and healthy environment, she suggests that the
International Human Rights Commission and the Inter-American and European Courts and Commissions should,
a) identify the rights in the covenants and conventions that may be violated by environmental abuses, b) specify
the limits and content of those rights in protecting environmental victims; and, c) based upon the foregoing
evaluation, investigate environmental human rights abuses of governments.92 She suggests that the UNHRC
should draw up a convention that recognizes a fundamental right to a clean and healthy environment and that
provides special protection for environmental refugees. The instrument should require governments to (1) ensure
the right of all persons to know about potential environmental threats and to effectively participate in all
environmental decision-making; (2) evaluate the environmental risks associated with their activities or those
that they approve; and (3) disapprove projects or activities that may harm residents, unless they implement
mitigating measures developed with citizen input, and (4) provide a right to compensation to victims which can
be enforced by an international agency.93
She further suggests that the reinterpretation and expansion of existing human rights should be
accompanied by broadening access to human rights institutions and national tribunals. The International Court of
Justices standing requirements should be expanded to allow individuals to petition and appear as parties before
the Court, and that procedures used by the International Labour Organisation (ILO) allowing individuals to
petition through an industrial association of employees or of workers can be applied to international
environmental rights. She suggests that the Court should adopt the doctrine of actio popularis, and allow states
to claim violations of obligations owed to the world community, allowing a state to challenge anothers activities
which result in damage to common resources. She cautions, however, that since the provision may only be
invoked by associations that have recognized standing, it could favor only the established non-governmental
organizations and their causes and deny representation of the concerns of fledgling and non-traditional
associations of peoples. To avoid this possibility, she suggest the creation of a board that would screen petitioners.
Likewise, domestic courts should be used to enforce claims arising under international human rights and
environmental law. People harmed by pollution originating in another state should be allowed to bring claims in
the national courts of the polluting state.94
Stavropoulou, on the other hand, asserts that there is a right not to be displaced implicit in international
90 McCue, supra note 4 at 177-188.
91 Id. at 180.
92 Schwartz, supra note 55 at 383.
93 Id.
94 Members of the ILO are bound not only by the conventions which they have ratified, but also by a common law comprised
of the ILO Constitution and interpretations thereof, as well as the Conventions and Recommendations promulgated at the International
Labor Conferences. This could be useful in the international environmental regime because it would contribute to the advancement of
the corpus of shared obligations and interests of states. Id. at 384-385. This approach has the advantage of providing an enforceable
judgment, but this would depend on the polluting states environmental standards and remedies, which Schwartz claims can be remedied
by agreement between the states involved. Id. at 386.

14

law, and that its recognition could empower those in danger of being displaced to assert the violation of this
human right.95 She argues that the international community should make efforts to recognize this right.96
Others advocate the recognition of a right to participate in decisions that affect the environment.97 Under
this approach, political participation by affected peoples should incorporate the freedom to develop and exchange
ideas and information. This right obligates the government to provide environmental education and access to
government-controlled information. Environmentally significant information should be immediately available
and government must allow for public input in the environmental decision-making process. Environmentally
significant activities should be subjected to an environmental impact assessment and should incorporate public
comments and alternative measures, and these activities should be open to challenge through independent
review at all stages of progress. Political participation should apply to all activities that potentially affect the
environment and should consider the resources of participants and keep their expenses at a minimum.
Additionally, it should not discriminate among participants or projects. The process does have to account for
other national priorities, but rarely, if ever, at the expense of the environment.98
Closely related to this approach is one that urges the recognition of a right to participate in
development projects.99 Professor Celia Taylor asserts that practical participation in development projects is
necessary to ensure that those charged with promoting development are held accountable to the populations
they are supposed to be serving. She argues that providing communities with a voice in the development
process will ensure a meaningful check on official action. If properly crafted, participation can aid in the
proper identification, implementation, and sustainability of development projects. It can provide a key source
of information about the expectations, behavior and level of acceptance likely to be demonstrated by such
groups. Participation also promotes the populations sense of ownership in the project and encourages longterm involvement and commitment to the project.100 Under her approach, participation planners must make
decisions based on several factors apart from their individual expertise and experience. Some balance must be
reached for every project such that participation can be encouraged to the fullest extent possible without
derailing the overall project goal. This balance can be attained if every aid donor and recipient work to
standardize participation in each phase of the project cycle.101 She concedes, however, that the right to
participate should be balanced with other rights such as the right to development or the right of selfdetermination of a host country.102
There are also those who point to the existence of an international law of development that can be
inferred from instruments and conventions such as the U.N. Charter, the Universal Declaration of Human Rights,
the International Convention on Economic, Social and Cultural Rights, the International Convention on Civil
and Political Rights, ILO Conventions, treaties, U.N. General Assembly resolutions and declarations, U.N.
95 Stavropoulou, supra note 54 at 748-749.
96 Id. at 741. A similar position is taken in Patrick M. McFadden, The Right to Stay, 29 VAND. J. TRANSNATL L. 1 (1996)
(discussing how major human rights instruments contain a right to stay in ones residence).
97 Neil A. F. Popovic, The Right to Participate in Decisions that Affect the Environment, 10 PACE ENVTL. L. REV. 683 (1993).
98 Id. at 708-709.
99 Celia Taylor, The Right of Participation in Development Projects, 13 DICK. J. INTL L. 69 (1994).
100 Id. at 71.
101 Id. at 76.
102 Id. at 96. There are other works that cite international instruments to support the view that there is an international law basis for
popular participation in government decision-making particularly when it affects the environment. See Michael J. Kane, Promoting
Political Rights to Protect the Environment, 18 YALE J. INTL L. 389 (1993) (citing the International Covenant on Civil and
Political Rights and the Universal Declaration of Human Rights as mandating popular participation in governmental affairs), and Richard
D. Glick, Environmental Justice in the United States: Implications of the International Covenant on Civil and Political Rights, 19
HARV. ENVTL. L. REV. 69 (1995) (pointing out that the International Covenant on Civil and Political Rights should be used by
environmental justice advocates to supplement domestic approaches). See also Neil A.F. Popovic, Pursuing Environmental Justice With
International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996) (suggesting the incorporation of international
human rights to interpret state constitutional provisions recognizing the environmental rights of citizens).

15

World Conferences, and even policies of international development agencies.103 Professor James Paul suggests
that an international right to development can be deduced from these sources which defines development as
people-centered, participatory, non-discriminatory, and protective of all the interrelated, indivisible human rights.
The right also requires that development be environmentally sustainable, concerned with the protection and
rehabilitation of environments, and must also protect cultures and cultural diversity, and promote democratic
systems of governance.104 This international law of development can be used to influence official conduct in
development activities, and to strengthen the efforts of Non-Government Organizations (NGO) in their attempt
to make development a more humane process. It would also legitimize NGO demands for more participation in
the protection of the environment and human rights.105 He suggests more transparency and accessibility to
decision-makers and more due process in the transactions of development agencies, developing procedures for
the mediation of grievances, and providing institutions and processes that can provide full remedies for harms
inflicted in the name of development.106
A right to the environment has also been said to exist ever since the 1972 U.N. Conference on the
Human Environment in Stockholm, which has gained support through the World Commission on Environment
and Development,107 other regional human rights instruments, and the 1992 Rio Declaration.108 The Rio
Declaration sets out Principles for decision-making that give precedence to long-term sustainable development
and requires public access to environmental information and environmental assessments for proposed activities
likely to have an adverse impact on the environment and which are subject to a decision of a competent
national authority. Other rights such as a right to environmental assessment, the right to information, and the
right to public participation, can in turn be derived from these rights.109
One work suggests that states commit the international crime of ecocide when their activities or
policies, or failure to regulate activities within their jurisdiction or control, directly cause or permit ecological
damage. Ecocide can arise from inappropriate planning and development policies in which environmental
impact assessment is rhetorical or marginal, and from the lack of or inadequacy of protective administrative
or legislative structures. Developed countries can commit ecocide by contributing to environmental
destruction in developing countries through facilitation or inadequate regulation of harmful activities by their
nationals, including implementation of unsustainable development assistance projects. Developing countries
can commit ecocide when they insist that the balance between environment and development is exclusively
a national concern, regardless of international consequences.110 It has also been suggested that the forced
relocation of peoples could constitute a violation of the right to self- determination.111
Multilateral Development Banks
Largely ignored at first, advocates for the environment and development succeeded in convincing
103 James C. N. Paul, The United Nations and the Creation of an International Law of Development, 36 HARV. INTL L.J. 311-319
(1995).
104 Id. at 319-325.
105 Id. at 327-328.
106 Id. at 328. See also Antonio A. C. Trindade, Environment and Development: Formulation and Implementation of the Right to
Development as a Human Right, 3 ASYIL 1993, at 15 (urging the creation of some form of institutionalized implementation of the right to
development as a human right).
107 WORLD CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 58 (1987), U.N. Doc.
UNP/GC.14/13 (1987).
108 The Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992).
109 Brian B. A. McAllister, Note, The United Nations Conference on the Environment and Development: An Opportunity to Forge a
New Unity in the Work of the World Bank Among Human Rights, The Environment, and Sustainable Development, 16 HASTINGS INTL
& COMP. L. REV. 689, 733, 736-740 (1993).
110 Mark Allan Gray, The International Crime of Ecocide, 26 CAL. W. INTL L.J. 215 (1996).
111 Eric Kolodner, Note, Population Transfer: The Effect of Settler Infusion Policies on a Host Populations Right to SelfDetermination, 27 N.Y.U.J. INTL L. & POL. 159 (1994).

16

multilateral development banks (MDB) that their aid projects result in environmental degradation.112 During the
1960s and 1970s, global environmental consciousness, mobilization by the public as well as individual
governments, and pressure from within the MDBs pushed the World Bank to revise its loan criteria to
incorporate environmental considerations.113
Between 1979 and 1980, the World Bank adopted a policy regarding the social issues involved in
involuntary relocation. This was due to increasing in-house use of social science knowledge and negative
feedback concerning its forced relocation projects. The Bank issued a resettlement policy in 1979,114 which was
revised in 1986.115 It was later issued as Operational Directive 4.30 on Involuntary Resettlement.116
These operational directives, however, are neither mandated nor subject to independent review, but are
112 Stephanie C. Guyett, Note, Environment and Lending: Lessons of the World Bank, Hope for the European Bank for Reconstruction
and Development, 24 N.Y.U. J. INTL L. & POL. 889, 890-891 (1992).
113 Id. at 892-893.
114 World Bank, Operational Manual Statement No. 2.33, Social Issues Associated with Involuntary Resettlement in Bank-Financed
Projects, February 1980.
115 World Bank, Operations Policy Note No. 10.08, Operations Policy Issues in the Treatment of Involuntary Resettlement 1986.
116 World Bank, Operational Directive No. 4.30, Involuntary Resettlement, (1990). See Cernea, supra note 48 at 20-21. Cernea, who
has been at the forefront of the Banks efforts to address displacement and who co-authored the 1990 Policy, summarized its key points as
follows:
a) Involuntary displacement should be avoided or minimized whenever feasible, because of its disruptive and
impoverishing effects. To avoid displacement all viable alternative project designs should be explored. Where
displacement is unavoidable, resettlement plans should be formulated with due care given to peoples entitlements, needs
and to environmental protection.
b) All involuntary resettlement should be conceived and executed as a development program, providing sufficient
opportunities to assist resettlers in their efforts to improve their former living standards and earning capacity, or at least
to restore them. Displaced persons should be: (a) compensated or their losses at replacement cost, (b) given
opportunities to share in project created benefits, and (c) assisted with the move and the transition period at the
relocations site
c) Allocation of adequate public resources (financial, technical, institutional) should be sufficient for compensating the
losses incurred by those displaced and for ensuring the means for adequate resettlement and rehabilitation.
d) Displaced people should be assisted to move in groups as social units of different kinds so as to preserve as much as
possible (and if desired by the affected people) the preexistent social networks and local forms of organization.
Group or individual self-resettlement should be facilitated whenever it represents the preferred option.
e) Minimizing the distance between the departure and the relocation sites can facilitate the adaptation and integration of
resettlers into the surrounding sociocultural and natural environments provided the economic and natural resource
potential at the new site is adequate. However, the possibilities of tradeoffs between spacial/cultural distance and
economic opportunities must be taken into account and balanced carefully.
f) The existing social and cultural institutions of resettlers and their hosts should be relied upon in conducting the
displacement, transfer and reestablishment process. Consultation and information to those to be displaced about their
entitlements, options moving schedules, etc., should be ensured throughout the preparations and relocation process.
Community participation in planing and implementing resettlement should be encouraged and organized.
g) The new communities of the resettlers, often created by regrouping several prior smaller villages, should be
designed as viable settlement systems equipped with infrastructure and services, with due consideration to their
integration in the encompassing regional economic contexts.
h) Host communities that receive resettlers should be taken into account in the overall planning process and assisted
to overcome possible adverse social and environmental consequences from increased population density.
i) Indigenous peoples, ethnic minorities, pastoralists, and other groups that may have informal customary rights to the land
or other resources taken for the project, must be provided with adequate land, infrastructure and other compensation.
The absence of a formal legal title to land by such groups should not be grounds for denying compensation and
rehabilitation.

17

merely encouraged.117 Thus, when the United States Human Rights Caucus held hearings on the issue in 1989,
the Bank and leading experts could not identify a single project where displaced groups were successfully
rehabilitated. Instead, it revealed that ongoing projects displaced 1.5 million people every year, and another
1.5 million were threatened by projects that were still in preparation.118
There are several suggested reasons why these policy directives have not led to the desired results.
One reason is that the recipient countries are often willing to incorporate environmental issues in their
development plans, but object to environmental safeguards as constraints which were not observed by
developed countries. Some countries agree to environmental covenants without any intention of enforcing them,
or are unable to enforce them because of the limited resources of their environmental programs.119
Another reason is the MDBs public disclosure policies. In some cases, the close links between the Bank
and the recipient countries prevent the former from enforcing its own directives. Its own public disclosure
policies have also prevented NGOs from identifying potential environmental problems early in the loan review
process,120 and prevents Congress from effectively influencing MDB policies.121
The biggest obstacle to the implementation of these policies is the nature of the Bank itself. MDBs
follow conservative development policies and use rates of economic return to evaluate loan proposals. They
prefer short-term economic growth through capital formation activities, and emphasize large-scale, capitalintensive development projects such as hydroelectric dams, extensive agricultural schemes, and other
infrastructure projects.122 These banks strive to reach annual lending targets so that they can justify a request
for a higher budget for the following year.123
The U.S. Congress has attempted policy reforms within MDBs through its voting share on the boards of
Id. at 24-25.

117 McAllister, supra note 109 at 711, citing Ibrahim F.I. Shihata, The World Bank and the Environment: A Legal Perspective, 16 MD.
J. INTL L. & TRADE 1, 12-13 (1992).
118 RICH, supra note 39 at 156. See also Roberto Ampuero, Third World: World Bank Projects Causing Ecological Disasters, Inter
Press Service, March 17, 1988 (available at LEXIS, ALLWLD file).
119 Guyett, supra note 112 at 909.
120 NGOs have complained that information regarding loan projects is impossible to obtain while the terms and conditions of the loan
are being negotiated. The Bank contends that divulging this information would violate the recipient countrys confidentiality. Id. at
910.
121 John M. Updegraph, III, Large-Scale, Capital-Intensive Development Projects in the Third World: Congressional Influence Over
Multilateral Development Bank Lending, 13 B.C. THIRD WORLD L.J. 345, 368 (1993).
122 Over the past two decades, the MDBs have focused on the direct alleviation of poverty, rejecting the trickle-down theories
of Third World economic development. Nevertheless, the MDBs continue to favor large-scale, capital-intensive projects over smaller,
more appropriate projects. Id. at 350.
123 Id. at 351-352. See also Zygmunt J. B. Plater, Multilateral Development Banks, Environmental Diseconomies, and International
Reform Pressures on the Lending Process: The Example of Third World Dam-Building Projects, 9 B.C. THIRD WORLD L.J. 169
(1989) (discussing how internal institutional dynamics of the Bank are geared towards large capital-intensive projects). Congress has
identified the banks reliance on inappropriate large-scale infrastructure projects as the major reason behind the lack of popular
support for the MDBs in the United States. The Senate Appropriations Committee recently threatened to withdraw support unless the
MDBs become more responsive to the problems of poverty, environmental degradation, and uncontrolled population growth. Updegraph,
supra note 121 at 366. See also, Prepared Statement of Bruce Rich on Behalf of Environmental Defense Fund, National Wildlife
Federation, Sierra Club, Greenpeace Before the House Committee on Banking and Financial Services Subcommittee on Domestic and
International Monetary Policy Concerning The World Bank: Effectiveness and Needed Reforms, 3/27/95 Fed. News. Serv. Cong. Hearing
Testimonies (Pg. Unavail. Online), 1995 WL 10384897. Rich claims that the Bank requires a significant shift in perspective, priorities,
approaches, and institutional culture. The problems are rooted in its management and structure, such as continued lack of sufficient
accountability and transparency, a lack of financial accountability for its decisions, an approach that relies heavily on foreign consultants
and often undermines development capacity in poorer countries, perverse administrative disincentives for quality control, and a
personnel system that reinforces the current loan approval culture. Id.

18

directors and the United States status as the worlds leading financial and economic power. This has been done
through three types of legislation: by providing policy guidelines for the United States representatives within
the banks, by imposing voting restrictions for U.S. executive directors, and by placing conditions on the use
of the appropriations.124 The Secretaries of the Treasury and State are required, for example, to promote
improvement in MDB environmental policy. The Executive Director of an MDB is instructed to incorporate
environmental impact assessments into the loan review process and to vote against making loans that would
result in environmental damage.125 Laws have been passed governing how MDB representatives should
participate and vote in bank fora. These may be general statements of policy, a requirement that the
Administration report to Congress on MDB activity in a particular area, or a directive to the representative to
propose, advocate, or oppose certain activities. Congress has also influenced MDB operations by controlling its
contributions, rescinding authorizations, specifying the uses of funds, or blocking their disbursement.126 But these
efforts have had limited success because they depend upon the Congressional mandates compatibility with the
MDBs rules and economic objectives. Banks are prohibited from interfering in the internal affairs of borrower
nations or basing lending decisions on any non-economic criteria,127 and do not consider the non-monetary
impacts of a project.128
The United States Congress attempts to steer the MDBs away from detrimental projects have been
ineffectual,129 leading others to suggest that Congress should stop attempting to influence policy reforms.
Instead, it should condition United States contributions directly to the banks compliance with its demands.130
Still others suggest that a negative vote by United States representatives should be required on any project
lacking alternatives and measures designed to mitigate potential environmental consequences, and that
Congress put more pressure on the World Bank to make commitments to prevent adverse environmental
impacts of bank-sponsored projects, including the amendment of its Articles.131 The IDFA pressures MDBs to
ensure preparation of environmental impact statements, but allows the U.S. Executive Director to vote for a
124 Updegraph, supra note 121 at 363-364. See also Ian Bowles & Cyril F. Kormos, Environmental Reform at the World Bank: The
Role of the U.S. Congress, 35 VA. J. INTL L. 777, 781 (1995).
125 Guyett, supra note 112 at 902. While seemingly positive, these measures do very little because a negative vote by the U.S. director
will not result in loan denial because the United States has neither a majority of the shares in the World Bank nor veto power over the
Banks loan decisions. Id. at 903.
126 Updegraph, supra note 121 at 365. Congress has passed laws that affect U.S. policy toward the MDBs either by addressing the need
for development aid to target the poor directly, or the importance of promoting smaller-scale, less capital- intensive project lending. The
Foreign Assistance Act of 1961 102, 22 U.S.C. 2151-1(a) (1988), directs U.S. MDB representatives to consider the extent to which
a loan program directly benefits the poor in the debtor country. Representatives must vote for those projects that address basic human
needs under the International Financial Institutions Act 701, 22 U.S.C. 262g-2 (1988). The Secretary of the Treasury must consult
with bank representatives of other countries to adopt international guidelines specifying that portions of MDB funds will be channelled
to benefit the neediest people, and to request the MDBs to prepare assessments of the extent to which their lending practices have
benefitted the poor. 22 U.S.C 262g-2 and 262o(a)(1) (1988). Congress adopted a policy to advocate the allocation of MDB agricultural
aid funds to projects that are concerned with the debtor countrys domestic food needs. This obligates the Secretary of the Treasury to
instruct the U.S. bank representatives to support MDB programs that are aimed at generating broad increases in income and
employment, especially among the rural poor. The representatives should also support activities that encourage debtor countries to
diversify agriculturally. U.S. MDB representatives are directed to promote sustainable economic development projects and programs
that small-scale economic activities. Id. at 365-366.
127 Id. at 367. The Articles of Agreement of the World Bank prevent it from considering human rights or politics when
negotiating loans to ensure its neutrality and independence. McAllister, supra note 109 at 706. See also, Ibrahim F.I. Shihata, Human
Rights, Development, and International Financial Institutions, 8 AM. U. J. INTL L. & POLY 27, 29 (1992) (discussing how the
Articles of Agreement of the Bank prevent it from engaging in political reform of borrowing countries. The author claims that depriving
financial assistance to people under regimes with poor human rights records only furthers their plight, and that the solution is to ensure
that economic and social adjustment programs should be accompanied by social safety nets and other measures to minimize their
negative effect on the poor).
128 Updegraph, supra note 121 at 368.
129 Id. at 369.
130 Id. at 368-369.
131 David Young, Note, The Application of Environmental Impact Statements to United States Participation in Multinational
Development Projects, 8 AM. U.J. INTL L. & POLY 309, 335-336 (1992).

19

project regardless of its environmental consequences, as long as an environmental impact assessment is

performed. Young suggests that Congress should amend the regulations to require a negative vote on any project
lacking alternatives and measures designed to mitigate potential environmental consequences. Structural
changes can also be made if Congress pressures the World Bank to amend its charter to explicitly include an
environmental provision such as the one followed by the European Bank for Reconstruction and Development.132
Environmental Impact Assessments
Another approach that has been suggested involves the use of environmental impact assessments
(EIA). There have been two approaches along these lines; the first is to ensure the extraterritorial
application of the National Environmental Policy Act (NEPA)133 to federal projects outside the United
States, and the second is to force MDBs to incorporate EIA systems in their procedures.
NEPA requires federal agencies to prepare an Environmental Impact Statement for any proposed
major federal action that would significantly affect the human environment. But courts have refused to extend
NEPA to extraterritorial actions.134 Others have suggested that NEPA be amended to make it applicable
extraterritorially, allowing only for the narrow exceptions recognized under case law. Thus, exemptions should
be recognized only in matters that directly and materially involve important national security interests. It
has been recommended that Congress implement the changes to ensure that these exceptions do not become
excuses for ignoring NEPAs mandate.135 The main problem with merely giving NEPA extraterritorial application
is the fact that the United States Supreme Court has interpreted the statute to have only a procedural mandate.136
NEPA will only force federal agencies to consider the environmental impacts of their actions and alternative
measures, but they are not obliged to take the most environmentally sound approach.
The other approach that has been suggested is to pressure MDBs to adopt an EIA system in its
operations. It has been proposed that a new international agreement should ensure the preparation of EIAs
for all multinational actions. This is not a novel recommendation because there are several international
agreements that require an environmental impact statement to assess the effect of development projects.137 The
proponents of this view argue that this will not intrude upon the sovereignty of the developing country because
132 Id. The extended discussion of the World Banks experience should not detract from the fact that other MDBs have likewise
been charged with displacing peoples. The Asian Development Bank, for instance, has been faulted for funding projects that displace
thousands of people in Indonesia, the Philippines, and Bangladesh. See Sahabat Alam Malaysia, Campaign Paper on ADBs
Involuntary Resettlement Policy, in NGO-PO CAMPAIGN MANUAL ON THE ADB FOR BEGINNERS, Part L, 1-17 (Elizabeth
Pua-Villamor & Melinda Mae Buan Ocampo eds.,1996).
133 42 U.S.C. 4321-4347 (1988).
134 In Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Haw. 1990), the District Court for the District of Hawaii refused to apply NEPA
when the U.S. Army removed chemical weapons from Germany and transported them to Johnson Atoll for destruction, saying that
because there was a prior agreement between the two countries, applying NEPA would have grave foreign policy implications. In
Environmental Defense Fund v. Massey, 772 F. Supp. 1296 (D.D.C. 1991), the court categorically refused to apply NEPA abroad
because Congress did not provide a plain statement of extraterritorial application for NEPA. The court relied on the Supreme Courts
decision in Equal Employment Opportunity Commn v. Arabian American Oil Co. (ARAMCO), 111 S. Ct. 1227 (1991), which held that
legislation is meant to apply only within the territorial jurisdiction of the United States, unless there is a clear congressional intent to apply
it extraterritorially.
135 One possible method of doing so is to mimic guidelines similar to those that are in place for the Freedom of Information Act (5
U.S.C. 552 et seq. [1994]). Legislation can stipulate performance of an EIS but limit release of the EIS findings so that vital national
security information is not compromised. Young, supra, note 131 at 334-335.
136 See Kleppe v. Sierra Club, 427 U.S. 390 (1990), Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989), Stryckers Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1979), and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, 435 U.S. 519 (1978).
137 Young, supra note 131 at 329. The Stockholm Declaration of 1972 likewise recommended that signatories assess environmental
impacts of development projects. Id. citing Stockholm Declaration on the Human Environment, reprinted in Report of the United
Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14 (1972), at 38.

20

the EIA requires the input of local experts who will work in conjunction with Bank consultants. Presumably, the
EIA will also help in identifying potential refugees and determining their needs.138
The World Bank has incorporated environmental assessments in its programs as conditions for its loans,
but they have not proven effective. This failure has been attributed to pressure from borrower countries to
maintain the volume of funding and to reduce the restriction and conditions on the supply of these funds, as
well as pressure on the Bank to provide inexpensive access to funds. This affects the Banks cost-benefit
analyses as well as the degree to which it will allow environmental cost to undermine project profitability.139
Congress, it is argued, should pressure the World Bank to make additional commitments to prevent adverse
environmental impacts of bank-sponsored projects. For instance, the World Banks Environmental Impact
Assessment Directive excludes the need to perform an EIA if the project can be classified as
environmentally beneficial.140
An Assessment
These approaches will not effectively address development displacement. As pointed out, the international
refugee regime is inapplicable. Controlling the funding of multilateral development banks and the use of
environmental impact assessment systems have proven ineffective. The mere inclusion of policies in the
Banks lending procedures does not ensure their implementation. The other approaches that have been
suggested rely heavily on the existence of a right that can be extracted from international law. I submit that there
are reasons why these suggestions will not address the plight of the victims of development displacement.
First, as in any attempt to rely on such rights, questions of enforceability inevitably arise. Little can be
gained by the recognition of these rights if the state, which is the displacing agent, refuses to adhere to them.
Second, these approaches only slightly, if at all, recognize the fact that the displacement of peoples is
essentially an act of the state. Worse, they imply the inevitability of both environmental trauma and
displacement, and seek only the mitigation of these effects. The bottom line of these suggestions is that
development efforts of the government and the security of peoples to live in an environmentally safe
environment should find some compromise. There are suggestions that correctly point out the value of
empowering communities to enable them to participate in the states development agenda, but these suggestions
are also framed as part of an international legal framework, and again, the question of enforceability is critical.
Finally, as impressive as these rights may seem, the suggested approaches assume that the victims of
development displacement are organizationally equipped to assert these rights. In reality, many of the affected
groups have had little use for the domestic legal regime, much less, the international legal system. The
remedies ignore the vulnerability of these communities and assume their familiarity with legal systems that are
entirely alien to their experience.
These suggested approaches also reduce the victims of development displacement into passive players.
As I discuss below,141 the resistance to development displacement involves a communitys attempt not only to
participate in a democracy, but to be recognized as a community. What is involved here is a refusal to submit to
the domination of those with political power. Many of the proposals, however, rely on intervention by the
international community, and disregard the roles of community initiative and empowerment.
I am not suggesting that there is absolutely no use for any of the proposals that have been made.
Controlling the funding of destructive projects will surely help reduce displacement. Again, however, these
138 See Carole Kein-Chesivoir, Avoiding Environmental Injury: The Case for Widespread Use of Environmental Impact Assessments in
International Development Projects, 30 VA. J. INTL L. 517 (1990).
139 Sue Mahony, World Banks Policies and Practice in Environmental Impact Assessment, (1995) 12 EPLJ 97.
140 Young, supra, note 131 at 335-336.
141 See infra, Part 6.

21

proposals do not address the more fundamental features of development displacement. They disregard the
communitys response to displacement and rely too much on external assistance, belittling the communitys
efforts to question the necessity of displacement. I propose that instead of relying on international law,
development displacement should be considered as a domestic issue that recognizes both the role of the state
in the exploitation of resources, as well as the significance of community resistance to displacement. I argue
that this approach runs parallel to the tenets of the environmental justice movement.
4. Environmental Justice
The Movement
I argue that development displacement can best be addressed by using an environmental justice
approach. Indeed, at the very heart of development displacement is the question of resource use and the
allocation of its benefits and disadvantages. Development displacement operates against the essence of
environmental justice; it is undertaken on the pretext that development efforts will redound to the benefit of the
majority of the population, when in fact, segments of the population bear the negative effects of these efforts.
Environmental justice has eluded easy definition.142 The United States Environmental Protection Agency
(EPA) defines it as:
the fair treatment of people of all races, cultures, incomes and educational levels with
respect to the development, implementation and enforcement of environmental laws,
regulations and policies. Fair treatment implies that no population of people should be
forced to shoulder a disproportionate share of the negative environmental impacts of
pollution or environmental hazards due to lack of political or economic strength.143
Environmental justice covers issues on the disproportional distribution of environmental hazards to
minority and low-income communities, and includes the disproportionate placement of toxic hazards in minority
areas, the exclusion of minorities from environmental planning, and the devastation of traditional communities.
As a result, minority and low-income communities pay the pollution costs of industrial production, while the
benefits accrue to society in general.144
Others have asserted that environmental justice is a critique of traditional views of environmentalism,
science, and social policy. It defines the environment, not as a place that should be conserved, but as a place
where people live. It reveres public participation and accountability in the formulation of public policy and
environmental decision-making, reshapes public health and environmental risk policies to include synergistic
risk, and promotes community-level analysis of environmental protection.145
142 See Robert W. Collin, Review of Literature on Environmental Racism, Environmental Equity, and Environmental Justice, 9 J.
ENVTL L. & LITIG. 121, 125-128 (1994).
143 William C. Scott, Environmental Justice: A New Era of Community Empowerment, Political Activism, and Civil Rights Litigation,
7 ENVIRONMENTAL CLAIMS JOURNAL 5 (1994), citing UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
ENVIRONMENTAL JUSTICE INITIATIVES 19 (1994).
144 Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 KAN. L. REV. 272, 273 (1992).
Minorities and the poor have always known that they suffer pollution in greater amounts than their white and generally more affluent
counterparts because they have been the steady targets for most undesirable but necessary by-products of an industrial society. This
is because polluters know that low-income neighborhoods are politically safe for the siting of garbage incinerators. The state is less likely
to meet resistance in a community of low-income, blue-collar workers with a high-school education or less. Beverly Wright,
Environmental Equity Justice Centers: A Response to Inequity, in ENVIRONMENTAL JUSTICE: ISSUES, POLICIES, AND
SOLUTIONS 57, 58-59 (Bunyan Bryant ed., 1995) [hereinafter, ENVIRONMENTAL JUSTICE].
145 Charles Lee, Developing the Vision of Environmental Justice: A Paradigm for Achieving Healthy and Sustainable Communities, 14
VA. ENVTL. L.J. 571, 572 (1995). The environmental justice movement is often characterized by its focus on people, and their distrust
towards the mainstream environmental movement. See ROBERT V. PERCIVAL, ET AL., ENVIRONMENTAL REGULATION: LAW,

22

Much of the literature on environmental justice focuses on the distributional consequences of the
application of environmental laws, which are ignored because they were considered social issues that go
beyond the consideration of environmental protection programs.146 Robert D. Bullard explains the problem as one
wherein environmental laws, regulations, and policies are not uniformly applied so that some neighborhoods and
communities are being exposed to elevated health risks. In his view, the environmental justice framework
1.
2.
3.

4.
5.

Incorporates the principle of the right of all individuals to be protected from

environmental degradation;
Adopts a public health model of prevention (elimination of the threat of harm
before the harm occurs) as the preferred strategy;
Shifts the burden of proof to polluters and discharges who do harm or discriminate
or who do not give equal protection to racial and ethnic minorities and other
protected classes,
Allows disparate impact and statistical weight, as opposed to intent, to infer
discrimination,
Redresses disproportionate risk burdens through targeted action and resources.

The goal of the framework is to make environmental protection more democratic.147 As another author
tersely put it, the goal is equal justice and equal protection from pollution.148
The evolution of the movement, has produced even broader definitions. When the First National People
of Color Environmental Leadership Summit was held in Washington, D.C. in 1991, the participants produced a
seventeen-point statement called the Principles of Environmental Justice which, among others, affirmed the
right to be free from ecological destruction, and the right to political, economic, cultural and environmental selfdetermination of all peoples. It included demands for the right to participate as equal partners at every level of
decision-making including needs assessment, planning, implementation, enforcement and evaluation. It
opposed the destructive operations of multi-national corporations, and military occupations, repression and
exploitation of lands, peoples and cultures, and other life forms. 149 The preamble of the Principles referred to
the building of a national and international movement of all peoples of color to fight the destruction and
taking of our lands and communities and securing the political, economic and cultural liberation that has been
denied for over 500 years of colonization and oppression, resulting in the poisoning of our communities and
land and the genocide of our peoples.150
SCIENCE, AND POLICY 26 (1992) (grassroots organizations accuse large environmental groups as approaching environmental
protection as the government and industry do), Nicholas Freudenberg & Carol Steinsapir, Not in Our Backyards: The Grassroots
Environmental Movement, in AMERICAN ENVIRONMENTALISM: THE U.S. ENVIRONMENTAL MOVEMENT, 1970-1990, at 27,
32 (Riley E. Dunlap & Angela G. Mertig eds., 1992) (the national environmental organizations are perceived to be more concerned
with protecting animals from extinction than with protecting children from toxic pollutants in their own homes), and Martin V. Melosi,
Equity, Eco-racism, and Environmental History, 19:3 ENVIRONMENTAL HISTORY REVIEW 1 (1995) (the environmental justice
movement focuses on anthropocentrist goals as opposed to the ecocentrist values of the large national organizations). For a detailed
comparison of these movements, see Dorceta Taylor, Can the Environmental Movement Attract and Maintain the Support of Minorities?,
in RACE AND THE INCIDENCE OF ENVIRONMENTAL HAZARDS: A TIME FOR DISCOURSE 28-54 (Bunyan Bryant & Paul
Mohai eds., 1992).
146 Richard J. Lazarus, The Meaning and Promotion of Environmental Justice, 5 MD. J. CONTEMP. LEGAL ISSUES 1, 2 (19931994).
147 Robert D. Bullard, Environmental Justice for All, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND
COMMUNITIES OF COLOR 3, 10-11 (Robert D. Bullard, ed. 1994) [hereinafter UNEQUAL PROTECTION].
148 Deeohn Ferris, A Call for Justice and Equal Environmental Protection, in UNEQUAL PROTECTION, id. at 298, 316.
149 More than 600 African Americans, Latino Americans, Asian Americans, Native Americans, as well as people from other
countries participated in the conference. Karl Grossman, The People of Color Environmental Summit, in UNEQUAL PROTECTION,
supra note 147 at 272, 272-275.
150 Id. at 272-273.

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Thus, while the weight of literature focuses on the issue of siting of hazardous plants in
predominantly low-income or minority areas,151 environmental justice is broad enough to cover other
issues such as the acquisition of lands from disenfranchised groups.152 There are several themes that
emerge from this literature.153 I define environmental justice broadly to refer to the movement against
government actions affecting the environment that cause a disparate impact on poor or minority communities.
Despite the vast literature on environmental justice,154 there is no consensus as to the proper legal
remedy that will resolve the issue. Some maintain that the NEPA155 is sufficient to address the issues,156 at least
until amendments are made to reassert the Acts intended substantive mandate.157 Others have pointed to other
existing and proposed legislation as the solution.158 The literature is almost unanimous in conceding that there is
no clear answer to the crisis and there is agreement that the present remedies are deficient.159 Relying upon
federal environmental laws is said to be ineffective because they do not address the highly localized problems
found in inner cities and their economically disadvantaged communities.160 These laws employ uniform standards
that do not account for the cumulative impact of pollutants.161 Other environmental laws also afford little relief,
being mainly in the form of injunctive or declaratory relief and/or civil penalties.162 It has been surmised that
minority interests have traditionally little influence in the process of enacting environmental legislation. Interest
groups who are active in the enactment of these laws include mainstream environmental groups (representing
conservation, recreation, hunting, wildlife and resource protection, and human health concerns), and the
commercial and industrial concerns. Only lately, if at all, have these interest groups concerned themselves with
the implication for minorities of environmental protection.163 It is has also been said that environmental laws
151 See e.g., Michael Wheeler, Negotiating NIMBYs: Learning from the Failure of the Massachusetts Siting Law, 11 YALE J. ON REG.
241, 246 (1994), citing Daniel A. Mazmanian & Michael Stanley Jones, Reconceiving LULUs: Changing the Nature and Scope of
Locally Unwanted Land Uses, in CONFRONTING REGIONAL CHALLENGES: APPROACHES TO LULUS, GROWTH, AND
OTHER VEXING GOVERNANCE PROBLEMS (Joseph Dimento & LeRoy Graymeyer eds., 1991), and Naikang Tsao, Ameliorating
Environmental Racism: A Citizens Guide to Combatting the Discriminatory Siting of Toxic Waste Dumps, 67 N.Y.U. L. REV. 366
(1992).
152 Environmental justice covers several other issues including lead poisoning, the number and proximity of noxious facilities,
distribution of air pollution, occupational health and safety incidents, contaminated fish consumption, and the cleanup of Superfund
sites. Lee, supra note 145 at 571.
153 It covers several issues from, a) the concept of sustainability, b) the community-based nature of the environmental justice
movement, c) the distribution of the benefits and burdens of environmental protection, and d) the unique situation involving Native
Americans. Collin, supra note 142 at 143-165. For other areas that have been examined see, Mary Cabrera, Legal Remedies for the
Victims of Pesticide Exposure, 1 KAN. J. L. & PUB. POLY 113 (1991), Thomas O. Mcgarity & Sidney A. Shapiro, Poverty and
Politics of Occupational Safety and Health, id. at 129, and Patrick West, et al., Minorities and Toxic Fish Consumption: Implications
for Point Discharge Policy in Michigan, in ENVIRONMENTAL JUSTICE, supra note 144 at 124-137.
154 The literature on environmental justice has grown at such a rate that a bibliography has been produced four years ago. See Tery
Link, Environmental Racism/Environmental Equity: A Bibliography, 2 GREEN LIBRARY JOURNAL 17 (1993).
155 42 U.S.C. 4321-4347 (1988).
156 Heather E. Ross, Using NEPA in the Fight for Environmental Justice, 18 WM. & MARY J. ENVTL L. 353 (1994).
157 See Philip Weinberg, Its Time to Put NEPA Back on Course, 3 N.Y.U. ENVTL L.J. 99 (1994), Philip Michael Ferester, Revitalizing
the National Environmental Protection Act, 16 HARV. ENVTL REV. 207 (1992), and Nicholas C. Yost, NEPAs Promise - Partially
Fulfilled, 20 ENVTL. L. 533 (1990). NEPAs insufficiency is due to the trend in cases that the law simply sets out a procedural
mandate, rendering it largely ineffective for addressing potential socio-economic injuries to minority or low-income communities. See
also Jonathan Poisner, Essay, A Civic Republican Perspective on the National Environmental Policy Acts Process for Citizen
Participation, 26 ENVTL. L. 53 (1996) (discussing how the NEPA fails to encourage deliberation among participants).
158 George Friedman-Jimenez, Achieving Environmental Justice: The Role of Occupational Health, 21 FORDHAM URB. L.J. 605
(1994), Linda D. Blank, Seeking Solutions to Environmental Inequity: The Environmental Justice Act, 24 ENVTL. L. 1109 (1994), and
Claire L. Hasler, The Proposed Environmental Justice Act: I Have a (Green) Dream, 17 U. PUGET SOUND L. REV. 417 (1994).
159 Collin, supra note 142 at 166.
160 Hope Babcock, Environmental Justice Clinics: Visible Models of Justice, 14 STAN. ENVTL L.J. 3 (1995).
161 Id. at 15-16.
162 Id. at 17-18.
163 Richard J. Lazarus, Pursuing Environmental Justice: The Distributional Effects of Environmental Protection, 87 NW. U. L.
REV. 787, 812 (1992). Disinterest in minority concerns also channels resources away from the improvement of non-urban areas, and

24

fail because the values they protect are subjected to the influences of the political process. In this view, the
political process protects only some rights such as free speech and expression, but subjects environmental
values to influences in the public arena.164
Litigation using the equal protection clause and federal civil rights laws is also ineffectual. The U.S.
Supreme Court has required a showing of statistically demonstrable disparate impact and specific discriminatory
intent for Equal Protection claims before relief can be awarded.165 A showing of disparate impact on
minorities is insufficient to infer discriminatory intent.166 Complicating this, is the fact that the disparate
distribution of environmental impacts is rarely accompanied by specific and explicit evidence of motive, and
thus the Fourteenth Amendment has been of little use in environmental justice claims.167 Others have
suggested the use of Title VI of the Civil Rights Act of 1964,168 and Title VIII of the Civil Rights Act of 1968
instead.169
Other Approaches
The variety of the proposed solutions to environmental injustice, too many to detail here, combine

impedes implementation of environmental laws in minority areas. Id. at 815-816.

164 Robert A. Williams, Large Binocular Telescopes, Red Squirrel Piatas, and Apache Sacred Mountains; Decolonizing
Environmental Law in a Multicultural World, 96 W. VA. L. REV. 1133, 1149 (1994).
165 See Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673 (S.D. Tex. 1979), East Bibb Twiggs Neighborhood
Association v. Macon-Bibb County Planning & Zoning Commission, 706 F. Supp. 880 (M.D. Ga. 1989), R.I.S.E., Inc. v. Kay, 786 F. Supp.
1144 (E.D. Va. 1991), and Rozar v. Mullis, 85 F.3d 556 (11th Cir.(Ga.), Jun 17, 1996) (NO. 95-8227).
166 The following have to be shown to establish discriminatory intent, a) the official actions effect on a particular race; b) the
decisions historical background; c) the sequence of events immediately preceding the action; d) any substantive or procedural departures
from the ordinary decision-making process; and e) the actions legislative or administrative history. Village of Arlington Heights v.
Metropolitan Housing Development Corp., 29 U.S. 252 (1977).
167 Babcock, supra note 160 at 19-20.
168 Title VI of the Civil Rights Act of 1964 prohibits discrimination on the grounds of race, color, and national origin by any program
or activity receiving Federal financial assistance. The implementing rules of Title VI require only a showing of discriminatory impact,
and not discriminatory intent. See Luke W. Cole, Environmental Justice Litigation: Another Stone in Davids Sling, 21 FORDHAM
URB. L.J. 523 (1994), James H. Colopy, The Road Less Travelled: Pursuing Environmental Justice Through Title VI of the Civil
Rights Act of 1964, 13 STAN. ENVTL L.J. 125 (1994), Robert R. Kuelin, Remedying the Unequal Enforcement of Environmental
Laws, 9 ST. JOHNS J. OF LEGAL COMMENT. 625, 643-648 (1994), and Michael Fisher, Environmental Racism Claims Brought
Under Title VI of the Civil Rights Act, 25 ENVTL. L. 285 (1995). More than a dozen Title VI complaints have been filed with the EPA
since September 1993. See Luke W. Cole, Civil Rights, Environmental Justice and the Environmental Protection Agency: The Brief
History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. ENVTL. L. & LITIG. 309 (1994).
169 Title VIII of the Civil Rights Act of 1968 prohibits the refusal to sell or rent . . . or otherwise make unavailable, or deny, a
dwelling to any person because of race, color, religion, sex, familial status, or national origin. A plaintiff need only prove that the conduct
of the defendant actually or predictably results in discriminatory impact. See Cole id. at 534-535. See also, Alice L. Brown & Kevin
Lyskowski, Environmental Justice and Title VIII of the Civil Rights Act of 1968 (The Fair Housing Act), 14 VA. ENVTL. L.J. 741
(1995).

25

both political and legal strategies.170 There has also been a trend in the efforts of state171 and the federal172
legislatures to address the problem of the siting of unwanted facilities in areas that affect communities. There
are still more efforts from the federal government and the academe to come up with solutions to environmental
justice issues.
Government
The Executive Branch of the United States Federal Government has also kept up with the environmental
justice movement. In 1994, President Clinton issued an Executive Order173 directing all agencies to develop an
agency-wide environmental justice strategy that identifies and addresses disproportionately high and adverse
human health or environmental effects of its programs, policies, and activities on minority and low-income
populations.174
The EPA is also incorporating these concerns into the environmental management programs of
corporations through the use of environmental auditing systems.175 Environmental auditing is the systematic,
documented, periodic and objective review by regulated entities of facility operations and practices related to
meeting environmental requirements. It is designed to verify environmental compliance, evaluate the
effectiveness of environmental management systems already in place, or assess risks from regulated or
unregulated materials and practices.176 Although, environmental auditing is suspect because corporations are
170 See Richard J. Lazarus, The Meaning and Promotion of Environmental Justice, 5 MD. J. CONTEMP. LEGAL ISSUES 1, 7-12
(1994) (environmental justice can be attained by action from Congress, federal and state environmental protection agencies, the
United States Department of Justice, and the environmental public interest community); Douglas A. McWilliams, Environmental
Justice and Industrial Redevelopment: Economies and Equality in Urban Revitalization, 21 ECOLOGY L.Q. 705 (1994)
(redevelopment advocates should solicit community inputs beforehand and frequently); Amanda Atkinson, Environmental Inequity: An
Emerging Concern for Government, 5 MD. J. CONTEMP. LEGAL ISSUES 81, 103 (1994) (opening the lines of communication
between government regulators and affected citizens); Deeohn Ferris, A Broad Environmental Justice Agenda: Mandating Change
Begins at the Federal Level, 5 MD. J. CONTEMPT LEGAL ISSUES 115, 127 (1994) (coordinating federal approach to environmental
laws and compliance and enforcement activities); Peggy M. Shepard, Issues of Community Empowerment 21 FORDHAM URB. L.J.
739, 749- 751 (1994) (clinics and health risk assessments, developing leadership and advocacy skills, and institution building and
resource development); Gerald Torres, Environmental Burdens and Democratic Justice, 21 FORDHAM. URB. L.J. 450-451 (1994) (all
government agencies and departments must begin to work together with the affected communities to develop policies and programs that
ensure that minorities, and the public as a whole, benefit from a clean environment and achieve a basic level of public health protection);
Deeohn Ferris, Communities of Color and Hazardous Waste Cleanup: Expanding Public Participation in the Federal Superfund
Program, 21 FORDHAM URB. L.J. 671 (1994) (CERCLA must be amended to ensure that EPA fulfills the elements of the program
which value the need for citizens living near sites to be well-informed).
171 See Stacy Hart, Note, A Survey of Environmental Justice Legislation in the States, 73 WASH. U. L. Q. 1459 (1995) and Vicki Been,
Conceptions of Fairness in Proposals for Facility Siting, 5 MD. J. CONTEMP. LEGAL ISSUES 13 (1994) for a discussion of state
legislative efforts to resolve the sitings issue.
172 Federal legislative efforts in environmental justice issues are discussed in Bradford Mank, Environmental Justice and
Discriminatory Siting: Risk-Based Representation and Equitable Compensation, 56 OHIO ST. L.J., 329, 351-357 (1995), and Clarice E.
Gaylord & Geraldine W. Twitty, Protecting Endangered Communities, 21 FORDHAM URB. L.J. 771, 779-782 (1994).
173 Executive Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-income
Populations, 9 Fed. Reg. 7629 (February 11, 1994).
174 The program shall list programs, policies, planning and public participation processes, enforcement, and/or rule-makings related to
human health or the environment that should be revised to 1) promote enforcement of all health and environmental status in areas with
minority populations and low-income populations; 2) ensure greater public participation; 3) improve research and date collection
relating to the health of and environment of minority populations and low-income-populations; and 4) identify differential patterns of
consumption of natural resources among minority populations and low-income populations. Id. The EPA now considers
environmental justice issues when commenting on an Environmental Impact Statement. See e.g. 60 Fed. Reg. 25564 (1995) and 60
Fed. Reg. 131156 (1995). Present Congressional actions, however, are endangering the federal governments environmental justice
programs. The EPA, which spends less than one percent of the federal budget, will suffer budget cuts, and its enforcement program will
be constrained by legislative riders. See Harvey Berkman, et al., Congress Returns to Legal, Regulatory Reform, The National Law
Journal, September 18, 1995, at A16.
175 See Environmental Leadership Program, 58 Fed. Reg. 4802 (1993), Environmental Leadership Program: Request for Pilot
Project Proposals, 59 Fed. Reg. 32062 (1994), and Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27282, 27283-27284
(1995).
176 Restatement of Policies Related to Environmental Auditing, 59 Fed. Reg. 38455, 38456 (1994). This is a restatement of the EPAs

26

usually perceived to be motivated purely by profit,177 these programs are actually designed to meet a broad
range of objectives and management philosophies.178 The public may benefit from a companys environmental
management program179 because the latter can be used as an opportunity to promote a decentralized,
ecologically-sensitive society in which all of societys organizations incorporate environmental values into
their decisions, instead of being coerced by centralized rules.180
In January 1993, the EPA solicited comments for the Environmental Leadership Program (ELP),181
which would provide recognition to companies and facilities that reflect a commitment to prevention-oriented
environmental management that goes beyond mere compliance with regulations. Companies would be
expected to demonstrate national leadership through a statement of corporate environmental principles, openness
to public scrutiny, model compliance records, and measurable reductions of the environmental impacts of their
production processes or products.182 Under the program, compliance will remain the threshold criterion for
environmental leadership, with pollution prevention and sustainable development as key components. These
considerations will be balanced in a two part program: a Corporate Statement of Environmental Principles and a
Model Facilities Program.183 A criterion for both programs is community and employee involvement.184
EPA is supporting worker participation in identifying, implementing, and evaluating pollution prevention
practices, and believes that workers can play a major role in the companys compliance activities.185
policy on environmental auditing and is substantially the same as the first Policy Statement issued in 1986. See Environmental
Auditing Policy Statement, 51 Fed. Reg. 25004 (1986). The International Chamber of Commerce defines it as a series of activities
undertaken on the initiative of an organizations management to evaluate environmental performance. The more sophisticated programs
are distinguished by a systematic, objective approach to verify both environmental compliance and the systems in place to manage
environmental responsibilities. It is the methodical examination, involving analysis, tests, and confirmations of a facilitys procedures and
practices with a goal of verifying whether they comply with legal requirements and internal policies. See INTERNATIONAL
CHAMBER OF COMMERCE, AN ICC GUIDE TO EFFECTIVE ENVIRONMENTAL AUDITING 3-4 (1991).
177 See e.g. Janis A. Morelli, Performing Environmental Audits: An Engineers Guide, CHEMICAL ENGINEERING, February
1994, at 104, 110 (environmental audits are used to check compliance with environmental regulations, to prepare the facility in the event
of an inspection, and to increase the value of assets should the facility be sold). See also Neil Gunningham, Environment, SelfRegulation, and the Chemical Industry; Assessing Responsible Care, 17 LAW & POLICY 57 (1995) (self-regulation is viewed as an
attempt by self-interested parties to give the appearance of regulation to ward off direct government intervention. They are usually weak,
seldom enforced, and mild).
178 INTERNATIONAL CHAMBER OF COMMERCE, supra note 176 at 7.
179 Id. at 11.
180 See Richard O. Brooks, A Program for the Education of Environmental Auditors at Vermont Law Schools Environmental Law
Center, 2:2 ENVIRONMENTAL AUDITOR 59 (1991). Focusing on the role of industry is sensible considering that the
environmental justice movement almost invariably fails to include industry as a participant in the resolution of the problem. In one work,
the authors proposed nine solutions to environmental injustice but only one touched on the role of the private sector. They said that
industry should assume a role in instituting measures directed at pollution reduction and the elimination of environmental pollutants.
They should evaluate their practices and, where appropriate, institute research to replace current methodology with environmentally
friendly procedures. They must also interact with the communities through outreach and sensitivity-based programs for the community as
well as the industrys employees. See Clarice E. Gaylord and Geraldine W. Twitty, Protecting Endangered Communities, 21
FORDHAM URB. L.J. 771, 783-786 (1994). This, despite the fact that industry is identified as one of the major causes of
environmental injustice. See Cynthia Hamilton, Coping with Industrial Exploitation, in CONFRONTING ENVIRONMENTAL
RACISM: VOICES FROM THE GRASSROOTS 63, 66 (Robert D. Bullard ed., 1993) (the legal and political system has protected
those who are destroying the future; corporations are allowed to pollute the air, water, and soil. Industries consume vital resources and
transform harmless elements into hazardous by-products); Daniel Faber and James OConnor, Capitalism and the Crisis of
Environmentalism, in TOXIC STRUGGLES: THE THEORY AND PRACTICE OF ENVIRONMENTAL JUSTICE 12, 16-17 (Richard
Hofitcher ed., 1993) (capital interests in real estate, finance, chemicals, oil refining, timber, and other natural resources have poured
money into the anti-environmental movement to deregulate the economy).
181 Environmental Leadership Program, 58 Fed. Reg. 4802 (1993).
182 Id. These comments are designed to stimulate discussion on what should constitute corporate environmental leadership. The
program would encourage companies to go beyond compliance with the law by incorporating pollution prevention into the full range of
operations like purchasing, manufacturing, and marketing. Id. at 4802.
183 Id. at 4803-4804.
184 Id. at 4805.
185 The EPA claims that there is evidence to suggest that these concerns are perceived as increasingly important by corporate

27

The Statement of Environmental Principles is envisioned to go beyond legal requirements that mandate
communication between a company and its neighbors on issues related to toxics manufacture, storage, and use
within a facility.186 EPA is seeking comments on how the ELP can empower communities and workers,187 who
could be viewed as stakeholders of the company with an interest in information related to environmental
concerns and decision-making related to those concerns.188
In June 1994, the EPA requested pilot project proposals for the ELP to explore the ways that EPA and
States might encourage facilities to develop innovative auditing and compliance programs and to reduce the risk
of non-compliance through pollution prevention practices.189 The pilot projects would help the EPA design a
full-scale leadership program and determine if the program can improve environmental compliance.190 These
voluntary pilot projects will benefit the public by encouraging industry to take greater responsibility for selfmonitoring, which will lead to improved compliance, pollution prevention, and environmental protection. The
projects will benefit industry by providing an opportunity to receive recognition for outstanding environmental
management practices and to address barriers to self-monitoring and compliance efforts. They will benefit the
government by reinforcing Federal-State partnerships and allowing EPA to gather empirical data on
environmental compliance methodology and measures. Applicants must demonstrate that their employees and
their communities are involved in developing and implementing their environmental management programs.191
They must show that their auditing and pollution-prevention programs will be used as models within their
company or industry.192
In March 1995, the President announced that EPA would develop a set of pilot projects that would
test alternative strategies to achieve environmental goals. The initiative would give some regulated entities
flexibility to develop alternative strategies that would replace or modify specific regulatory requirements on
the condition that they produce greater environmental benefits. In exchange, these entities would be held to
a higher standard of accountability for demonstrating project results.193
These XL (which stands for excellence and leadership) programs differ from the ELP because they
allow flexibility from existing regulations if they can attain results beyond what would have been accomplished
through compliance with those regulations. The ELP projects work within existing regulatory requirements.194
environmental leaders. Id. at 4808.
186 See Emergency Planning and Community Right to Know Act, 42 U.S.C. 11001, et seq.
187 58 Fed. Reg. 4802, 4804.
188 EPA is hesitant to prescribe specific worker training or community relations programs conceding that a variety methods may be
successful. It is seeking comments on how the ELP can accomplish worker and community empowerment without being unduly
prescriptive. Id.
189 Environmental Leadership Program: Request for Pilot Project Proposals, 59 Fed. Reg. 32062 (1994).
190 Id. EPA opted not to develop its own Corporate Statement of Environmental Principles and decided to work with
organizations that have developed their own corporate or industry-specific codes.
191 EPA, the states, and the facilities will hold dialogues with the environmental justice communities, environmental groups, and the
public about the components of the pilot program and obtain their input on shaping the requirements for a full-scale ELP. Steven A.
Herman, EPA Launches Environmental Leadership Program, NATIONAL ENVIRONMENTAL ENFORCEMENT JOURNAL, May,
1995, at 14, 15.
192 These facilities should suggest mechanisms which can be used to verify this involvement. 59 Fed. Reg. 32064. Examples of
mechanisms that were suggested were interviews with employees and local Emergency Planning Commissions. See also Eric W. Orts,
Reflexive Environmental Law, 89 NW. U. L. REV. 1227 (1995) (discussing the similarities of the ELP program with the recently
developed European Eco-Management and Audit Scheme).
193 Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27282, 27283-27284 (1995). There will be three regulatory reinvention
pilot programs: the XL program for facilities, the industry-wide or sector-based XL program, and the XL program dealing with
government agencies regulated by the EPA.
194 The EPA wants to test innovative compliance approaches such as third-party auditing. It is one of the means for streamlining
compliance oversight. ELP allows facilities to identify ways to streamline reporting requirements and reduce compliance inspections
without sacrificing environmental and public health protection. Facilities will use management techniques such as environmental

28

The XL Projects have a separate set of criteria,195 the most significant being shifting of risk burden. Under
this criteria, the project must be consistent with the Presidents Executive Order on environmental justice196 and
must protect worker safety and ensure that no one is subjected to unjust or disproportionate environmental
impacts. Like the ELP, the new approaches must be adaptable to the Agencys programs or in other facilities
in the same industry.197
The Academe
Other solutions for environmental justice include a Takings approach to private property.198 The
proponent argues that discrete and insular minorities are likely to be the victims of the failure of the
majoritarian system, and that this would justify subjecting governmental actions that have a disparate impact on
their property interests to heightened scrutiny under the Takings Clause.199 Another is the use of the anticipatory
nuisance doctrine,200 where a defendant may be restrained from conducting an activity where it is highly
probable that the activity will lead to a nuisance.201
One other approach, although not directly suggested as an environmental justice strategy, is to sue
for damages if injury results from the changes introduced to the land. It has been suggested, for example,
that damages from induced earthquakes can be recovered under strict liability, negligence, and nuisance
law doctrines.202
Finally, attention has been called to the possible use of the social impact assessments mandated by
NEPA, which have been largely ignored.203 Indeed, social scientists agree that the incorporation of social science
auditing and pollution prevention that reduce the burden of paperwork and inspections on the facilities, while enhancing compliance with
existing environmental laws. Id. at 27286.
195 These include environmental results, cost savings and paperwork reduction, stakeholder support, multi-media pollution prevention,
transferability, feasibility, and monitoring, reporting and evaluation. Id. at 27287-27288.
196 Executive Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations, 9 Fed. Reg. 7629 (1994).
197 60 Fed. Reg. 27282, 27287 (1995). See also William H. Freeman & Karen A. Caffee, EPAs Project XL: Regulatory Flexibility,
NATURAL RESOURCES & ENVIRONMENT, Vol. 10, No. 4, Spring 1996 at 59-61 for recent developments in the XL projects.
198 William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782,
873 (1995).
199 U.S. Const. amend. V. Under this approach, courts should look at whether there has been disparate impact, and not simply
discriminatory purpose as under present equal protection cases. Disparate impact, it is argued, is appropriate in the takings context
because the kinds of process failures at issue in environmental justice claims reflect the organizational difficulties that minority
communities face (as well as more subtle biases of decision-makers). Id. at 875-877. This approach might be difficult because the
Supreme Court has rejected the idea that poor people might constitute a politically powerless group which is undemocratically denied a
fair share of influence in the processes of public decision-making. The Court has resorted to a mere rationality standard in these cases,
presuming that classifications that affect the poor are constitutional, without inquiring into the democratic legitimacy of the underlying
process. It has warned that any judicial intrusion into allocative decisions which necessarily expresses majoritarian preferences, would
undermine the foundations of democracy. Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. PA. L. REV. 1277, 1306
(1993).
200 Serena M. Williams, The Anticipatory Nuisance Doctrine: One Common Law Theory For Use in Environmental Justice Cases, 19
WM. & MARY ENVTL. L. & POLY REV. 223 (1995).
201 Id. at 239-240, citing RESTATEMENT (SECOND) OF TORTS 821D cmt.d (1979). The prevention of injury to the
environment is susceptible to injunctive relief. The benefit from using this approach is the prevention of harm before it occurs, as well as
the prevention of economic waste, because the defendant will not invest resources in a project that will likely be thwarted. Id. at 241.
202 Davis, supra note 54. Several human enterprises are now know to trigger or induce earthquakes such as fluid injection to increase
oil production, geothermal energy production, and solution mining, injection of fluid toxic wastes; fluid withdrawal during oil production
and geothermal energy production; reservoir filling and rock removal during mining and large-scale surface quarrying. Id. at 558.
203 James P. Boggs, NEPA in the Domain of Federal Indian Policy: Social Knowledge and the Meaning of Negotiation, 19 B.C.
ENVTL. AFF. L. REV. 31 (1991). There are cases which have laid down the rule that socio-economic impacts alone are
insufficient to trigger NEPA compliance. See, e.g. Breckenbridge v. Rumsfeld, 537 F. 2d 864 (1976), City of Battle Creek v.
Federal Trade Commission, 481 F. Supp. 538 (1979), and Citizens Committee Against Interstate Route 675 v. Lewis, 542 F.

29

knowledge has not been properly incorporated in development planning. While this knowledge can be used in
the formulation of policies, the impact statements that have been produced have not yielded recommendations
for policy reform because they tend to avoid making recommendations beyond the case at hand.204 The failure
of social planning in influencing project designs has been blamed on both social scientists and project
planners. Social analysts have failed to organize their insights into a systematic and usable conceptual framework
about settlement processes, while planners have designed settlement programs only in technological terms, and
have ignored the socioeconomic aspects of the settlement process.205 Project planning is so dominated by
technical factors or economic factors that people are dealt with only as an afterthought.206
The review of the environmental justice movement emphasizes, first, the broadness of the issues that it
covers, and, second, the variety of ways in which the issue is being addressed. These approaches do not rely on
regulatory or command-and-control techniques; rather, the innovations that have emerged reflect a recognition of
the need for community empowerment and participation. The attention to community empowerment and
participation is perhaps in response to the perception that the problem stems from a public that does not trust its
leaders to make wise decisions.207 In the next section, I explore how this mistrust is engendered by class
structures in society.
5. Resource Use and Displacement
The Role of Class
Development displacement is the result of deliberate government action. It is primarily a domestic
issue even when governments resort to international assistance for their development programs.208 Indeed, others
believe national law can be more generous in providing protection than would international laws.209 Even
governments and development agencies consider their goal in dealing with involuntary resettlement as one of
equity, where those who have been resettled should be left in the same social and economic status as they were
Supp. 496 (1982).In essence, these cases state that an environmental impact statement is not required where the alleged effects
of a project are primarily socio-economic. It would not, however, be a barrier to using the NEPA in development displacement
cases because environmental damage is a primary concern of the complainant.

204 Cernea, supra note 49 at 13, 15-16. Cernea and other anthropologists have urged that development planning become a
multidisciplinary undertaking. Id. at 31 (Economists, lawyers, engineers and other specialists contributed to policy development and the
social scientists developed informal alliances within the institution with other professional groups), and G. Edward Schuh, Involuntary
Resettlement, Human Capital, and Economic Development, in ANTHROPOLOGICAL APPROACHES, supra note 3 at 59-61 (the
multidisciplinary teams should include sociologists, as well as representatives of the various technical disciplines and engineers to provide
the perspective of the biological, natural, and physical sciences). Absent from these enumerations, however, are the communities affected
by the development project.
205 Thayer Scudder, A Sociological Framework for the Analysis of New Land Settlements, in PUTTING PEOPLE FIRST:
SOCIOLOGICAL VARIABLES IN RURAL DEVELOPMENT, 148, 150 (Michael M. Cernea ed., 1991).
206 Michael M. Cernea, Knowledge from Social Science for Development Policies and Projects, in id. at 1, 7. Anthropological
contributions in British-funded development efforts were absent until the 1980s. There was reluctance to invite anthropologists to
contribute their skills on the premise that anthropology had little to do with contemporary problems in industry or development.
Anthropologists were viewed as poor team workers because they were not familiar with the planning process or with the
administrative, political, and bureaucratic settings of decision-making and resource-allocation. Their techniques were also criticized as
time-consuming; they relied on qualitative not quantitative data, and focused more on discussion rather than how to implement agreed
upon objectives. TOM GABRIEL, THE HUMAN FACTOR IN RURAL DEVELOPMENT 37, 41-42 (1991).
207 James T OReilly, Environmental Racism, Site Cleanup and Inner City Jobs: Indianas Urban In-fill Incentives, 11 YALE J. ON
REG. 43 (1994).
208 Shihata, supra note 25 at 44-46.
209 Helton, supra note 89 at 1626. See also Astri Suhrke, Environmental Degradation and Population Flows, 47 JOURNAL OF
INTERNATIONAL AFFAIRS 473-496 (1994) (stating that displacement through deforestation and desertification, or by deliberate
policies such as dam-building, requires responses through or in cooperation with the state concerned).

30

before the implementation of a project.210

In this section, I attempt to show that development displacement is not exclusive to Third World.211 I
focus on the United States to illustrate that displacement affects even economically advanced societies. Indeed,
displacement in urban development in the United States has already been thoroughly examined.212 It is said that
the governments failure to provide protective zoning to low-income communities of color through its land-use
policies results in the siting of environmental hazards and stimulates development-induced displacement of lowincome residents.213 Highway construction projects, in particular, have been challenged in courts on the grounds
that they cause the displacement of minority communities.214
Because of these skewed development policies, community responses to the development approaches
in urban areas have spurred alternative, locally-based development efforts by minorities which are largely
efforts to obtain freedom, justice, or equality among those who have been dominated by whites in power.
These groups operate on the basis of self-help, protest, and collective politics to advance their agendas.215 I
argue here that development displacement is also widespread in the rural United States, and as anywhere else
in the world, resistance to displacement has cultivated community responses that focus on self-help and
collective politics.
The history of the United States has been characterized by displacement. Contrary to romantic historical
accounts, the settlement of the West was a series of violent episodes of the continuous displacement of native
populations.216 This reality, however, remains unfamiliar to the white community which has opted to write an
210 Schuh, supra note 204 at 53.
211 Most case studies on development displacement concentrate on the construction of dams in the Third World. The most often cited
cases are the Sardar Sarovar Dam Project in India which is likely to displace 90,000 people, and to accelerate deforestation, erosion
and other environmental degradation of the surrounding environment, and Egypts Aswan High Dam. See Young, supra note 131 at 309,
Taylor, supra note 99 at 72, and Updegraph, supra note 121 at 345-346.
212 See Robert Bullard, Residential Segregation and Urban Quality of Life, in ENVIRONMENTAL JUSTICE, supra note 144 at
76, 78 (low- income communities of color are vulnerable to freeway construction, industrial encroachment, and other nonresidential land
uses that are considered undesirable).
213 See Dubin, supra note 31 at 744. The judicial treatment of racial zoning promoted and perpetuated separate minority
communities. He also discusses how zoning that significantly increases the cost of retaining housing can be disruptive to the residents of
low-income communities of color leading to their displacement through the process of gentrification. Id. at 768. See also Benjamin B.
Quinones, Redevelopment Redefined: Revitalizing the Central City with Resident Control, 27 U. MICH. J. L. REF. 689 (1994).
214 These efforts, however, were not successful. In Coalition on Sensible Transportation Inc., et al., v. Dole, (642 F. Supp. 573 [1986]),
the District Court of the District of Columbia noted that there were several mitigating measures in place and that the displacement and
loss of wetlands and terrestrial habitats will be minimized. Id. at 582. In Coalition of Concerned Citizens Against I-670 v. Damian (608
F. Supp. 110 [1984]), plaintiffs alleged that the defendants failed to involve the public in making the decision whether a freeway was
needed to meet anticipated traffic demand, and that they failed to take into account the disproportionate impact of I-670 upon minority
citizens in violation of Title VI of the Civil Rights Act of 1964. Seventy-five percent of the 355 persons that would have been displaced
by the project were members of racial minorities. The court held that defendants have met their burden of justifying the location of the
project by articulating legitimate nondiscriminatory reasons for the location. Id. at 127.
215 John J. Betancur & Douglas C. Gills, Race and Class in Local Economic Development, in THEORIES OF LOCAL ECONOMIC
DEVELOPMENT: PERSPECTIVES FROM ACROSS THE DISCIPLINES 191, 191-192 (Richard D. Bingham & Robert Mier eds.,
1993). Inner-city communities are reshaping the social landscape and taking over a role abdicated by government. Social movements
promoting progressive change on behalf of marginal and excluded groups seek change through innovative or rebellious means. See John
O. Calmore, Racialized Space and the Culture of Segregation: Hewing a Stone of Hope From a Mountain of Despair, 143 U. PA. L.
REV. 1233, 1258- 1259 (1995).
216 A less popular, yet more accurate view of history was one of racism and greed. As bluntly put by one
author:We must face the shameful fact: historically America has been a racist nation. After all, white America
started out as a people so confident in our own racial superiority that we felt licensed to kill red people, to
enslave black people, and to import yellow and brown people for peon labor. We white Americans have been
racist in our laws, in our institutions, in our customs, in our conditioned reflexes, in our soul.
Arthur Schlesinger, Jr., Multiculturalism and the Bill of Rights, 46 ME. L. REV. 191, 198-199 (1994).

31

artificial past that stresses the valorous talents of those who settled the frontier but ignores their destructive
actions towards indigenous populations.217 The massive displacement of indigenous populations was fueled by
the conviction of white peoples that the acquisition of property was a cultural imperative. Land was to be
divided, distributed, and registered. The westward expansion of the country turned open areas of North America
into transferable parcels of real estate. So innate were the values attached to property,218 that in the half century
following the American Revolution, population growth and commercial expansion resulted in the unstoppable
westward movement of people into new territories, despite poverty, inclement weather, and the presence of
Indians.219
The racist character of this movement has been traced to the medieval era, when the Church- inspired
a legal tradition which denied non-Christian peoples the right of self-rule and jurisdiction over the lands and
property that they possessed.220 This legal tradition was likewise applied against any race of peoples, whose
religion, civilization, or form of culture, differed from norms established by Christian Europeans.221
Further animating the settlers was the fact that during the expansion of capitalism in late- nineteenthcentury America, land and natural resources became critical to economic growth and they provided incentives
and opportunities for those who wanted to begin or expand their financial empires. Their actions altered
productive relations and the legal status of land and natural resources, their social and economic worth, and
the particular moral value that landownership held for common citizens.222
The continuous exploitation of natural resources persists, and continues to cause displacement.223
The annihilation of the Indian in U.S. history has been recast as an adventure about taming the wild and
as a story of opportunity for the discontented outcast to begin life anew. WILLIAM C. ROBBINS, Ideology
and the Way West, in COLONY AND EMPIRE: THE CAPITALIST TRANSFORMATION OF THE
AMERICAN WEST 6 (1994). This approach continues to command respect despite recent revisionist efforts.
Robbins argues that there is a failure on the part of historians to acknowledge the pervasive influence of
capitalism on the countrys historical development. Id. at 6-8. In another authors view, what was missing wasa
frank, hard look at the violent, imperialistic process by which the West was wrested from its original owners
and the violence by which it had been secured against the continuing claims of minorities, women, and the
forces of nature. That capacity for violence may be inherent in all people, but when it showed its ugly face
among the respectable and the successful it was called progress, growth, the westward movement,
the march of freedom, or a dozen other euphemisms - and it was such time historians called such violence and
imperialism by their true names.
217

DONALD WORSTER, Beyond the Agrarian Myth, in UNDER WESTERN SKIES: NATURE AND HISTORY IN THE
AMERICAN WEST 11-12 (1992) (this phase in history had been marred by racism, ethnocentrism, brutality, misunderstanding, and
rage on the part of both the encroaching majority and the declining minority, but was especially marred by oppression and exploitation by
the former). Id. at 13.

218 PATRICIA N. LIMERICK, THE LEGACY OF CONQUEST: THE UNBROKEN PAST OF THE AMERICAN WEST 55-56
(1987).
219 GORDON WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 305-311 (1993).
220 Robert A. Williams, Columbus Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples Rights of
Self-Determination, 8 ARIZ. J. INTL & COMP. L. 51, 59 (1991).
221 Id. The propensity to acquiring property has been traced to the European legacy of cultural racism which was used to
discriminate against indigenous peoples, and to deny them the rights of self-rule because of their deviation from European standards. Id.
at 66. For a more detailed study on the medieval origins of the Federal Indian Policy, see ROBERT A. WILLIAMS, JR., THE
AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990).
222 WILLIAM G. ROBBINS, In Pursuit of Private Gain: The West as Investment Arena, in COLONY & EMPIRE: THE
CAPITALIST TRANSFORMATION OF THE AMERICAN WEST 77 (1994).
223 See e.g., BRUCE JOHANSEN AND ROBERTO MAESTAS, WASICU: THE CONTINUING INDIAN WARS (1979), Celia
Byler, Free Access or Free Exercise?: A Choice Between Mineral Development and American Indian Sacred Site Preservation on
Public Lands, 22 CONN. L. REV. 397 (1990), and Kathy Hall, Impact of the Energy Industry on the Navajo and Hopi, in UNEQUAL

32

Sociologists explain it as a necessary outcome of class dominion and subordination which is a feature of
modern societies.224 Because of class stratification, minority groups, women, the aged, and the poor, are
disparately affected. These disempowered groups who maintain values which are at variance with the majority
beliefs are further subjected to unequal impacts from development projects.225
Sociologists have asserted that resource development is generally determined by social
stratification.226 Social inequality is generally understood to consist of structured social relationships of
privilege and disprivilege, and domination and subordination.227 The United States is a highly stratified society
which generates inequalities. These inequalities create groups which possess different amounts of wealth,
power, and prestige, which are passed on to succeeding generations.228 Wealth, power, and prestige, in turn,
are largely determined by the division of labor in the production of goods and services in society.229
Over time, class structures became nationalized because of the expansion of resource development patterns.230
This expansion forced the United States to resort to international resources and to increase efforts at domestic
resource development.231 As a result, resource development reflects a relationship of domination from those
who seek unrestricted access to resources, and opposition from those who are dependent upon a certain resource
base.232 Natural resources exploration has been transformed into a nationwide activity, which puts minority and
low-income groups at a disadvantage.233
Although the United States is characterized by ethnic, racial, linguistic, and religious diversity, much of
this diversity was ignored when the nation was originally designed. The founders of the United States used
PROTECTION, supra note 147 at 130-154. Approximately two-thirds of uranium resources, one-third of Western U.S. low-sulfur coal,
and twenty percent of known U.S. reserves of oil and natural gas, pristine water, and stands of unexploited old growth timber are in
indigenous territories, and multinational corporations have been extracting these resources for years and want to increase and expand
extraction and production leases. See Tom B. K. Goldtooth, Indigenous Nations: Summary of Sovereignty and the Implications for
Environmental Protection, in ENVIRONMENTAL JUSTICE, supra note 144 at 138, 143.
224 Although frequent references are made here to capitalist economic systems, it has been pointed out that even communist systems
adopt the goal of subordinating nature. See Cynthia Hamilton, Industrial Racism, the Environmental Crisis, and the Denial of Social
Justice, in CULTURAL POLITICS AND SOCIAL MOVEMENTS 189 (Marcy Darnovsky, et al. eds., 1995) [hereinafter
CULTURAL POLITICS], and MALCOLM HAMILTON & MARIA HIRSZOWICZ, CLASS AND INEQUALITY IN PREINDUSTRIAL, CAPITALIST, AND COMMUNIST SOCIETIES 3 (1987).
225 Pamela D. Elkind-Savatsky & Judith D. Kaufman, Cultural Assessment of Rural Resource Impacts: An Addendum, in
DIFFERENTIAL SOCIAL IMPACTS, supra note 12 at 283. See also HAROLD M. HODGES, JR., SOCIAL STRATIFICATION:
CLASS IN AMERICA (1964).
226 Social stratification describes the systematic structures of inequality in human societies that explain and justify the unequal
distribution of societal resources. CROMPTON, supra note 6 at 1.
227 Jeffers W. Chertok, The American Society/Environment Relationship: Challenging Prevailing Assumptions, in DIFFERENTIAL
SOCIAL IMPACTS, supra, note 12 at 17. Social stratification is a relatively recently developed approach to the phenomenon of
social inequality. It looks at political power as a direct function of social class position, where class is understood in terms of
position within a system in which hierarchical gradations are based on wealth, occupation, education, prestige, or some combination
thereof. Id. at 22.
228 Chertok, id. at 23. The United States commits less of its national income to redistributive welfare programs and tolerates more
income inequality compared to other industrialized countries. Its poverty rate for every significant age group is higher than most other
countries, and it has the highest percentage of children living in poverty. The United States has the worst infant mortality rate. It is also
less likely to exert any efforts at reducing poverty, with other countries spending twice as much on social welfare programs. See Loffredo,
supra note 199 at 1324-1326.
229 Chertok, supra note 227 at 24.
230 Chertok argues that from the post-Civil War period to the twentieth century, America was characterized by the rise of the corporate
enterprise which became the dominant form of business enterprise. The national economy operated with a system of small, highly
restricted, privately-owned, and personally-managed corporations operating on classical laissez-faire theories which changed the local
and regional stratification of antebellum American society. Since the First World War, the American economy has been characterized by
the penetration of other societies in the search for raw materials, new markets, and cheaper labor. Id. at 25-26.
231 Id. at 31.
232 Id. at 31-32.
233 Raymond L. Hall, Whose Ox Is Gored? A Sociocultural Model of Impact Distribution in Resource Development, in
DIFFERENTIAL SOCIAL IMPACTS, supra note 12 at 61.

33

white, Anglo-Saxon, and Protestant values as the basis upon which the nation would function so that the
American political and economic system, in effect, operates in the interest of an Anglo majority. Minority groups
are still seeking acceptance of their cultures, race, and ethnicity into American society, and still face
discrimination, racism, and other forms of exclusionary pressures that engender inequality.234 It has been argued
that the state does not operate in the mutual interest of individuals, but is managed by individuals and groups
who use it in their own best interest.235
The disproportionate distribution of power in communities in the United States leads to the differential
distribution of negative impacts of resource development. The negative impacts are more likely to affect the
poor sections of a particular community, and are more likely to affect the minority-group sections of the
community than the majority-group sections. Those associated with the dominant class avoid or minimize
these negative impacts because their educational and occupational attainments allow them to have more
information in advance of resource development efforts largely because they have initiated or participated in
every stage of the decision-making processes. They are in a position to reduce negative impacts, or to shift them
to other less-powerful sections through the use of political, legal and economic mechanisms easily available to
them.236 Those adversely affected by resource development decisions argue that culture, race, ethnicity, and
occupation should be considered in development decisions.237
Enterprises that supply energy are operated mostly by males belonging or closely affiliated to the
state. Those prominent in energy resource development tend to be white males like those in the large
corporate sector. When they exercise their power to facilitate natural resources development, they assume that
they perform class-neutral functions that do not have adverse cultural impacts. They ignore development
impacts that do not directly benefit them, assuming that resource development brings good for the society as a
whole.
Indeed, the discriminatory intent requirement in environmental justice cases has been criticized as
inappropriate because the standard demonstrates a misunderstanding of the causes and manifestations of racial
discrimination. Racism operates on a preconscious level, motivating individuals to act in a racially
discriminatory manner without being aware of it. Systemic factors also prevent courts from using the
discriminatory intent test from detecting racism. Governmental decision-making bodies do not always follow
articulation and recording procedures. The notion that minority participation in decision making processes
precludes discrimination has little basis in fact because these minority representatives may develop racist
tendencies against their own race, or may be excluded from genuine decision making processes.238 Most whites
reject traditional forms of discrimination, and use ostensibly nonracial factors to justify any behavior that may
have a disproportionate impact on non-whites or could be perceived as being racist.239
234 Id. at 68-70. Hall explains that high group status in the United States depends on whether or not the group is of European origins;
these groups possess a virtual monopoly on American social power. Non-European groups are included in the American political
economy depending on their cultural proximity and instrumental use-value. In short, the closer the cultural affinity existing between
the state and a group, the more likely it is that the states activities will be in congruence with their interests. Id. at 74.
235 Id. at 64. The state defines the public interest as in the interest of the state giving it an incredible veto power over the sum of its
parts. The exercise of this power in reality affects its several parts differently. Id. at 67.
236 Id. at 77. As one author put it, the effect of capitalism on the environment is directly correlated. The greater the profit rate and the
accumulation rate, the greater the rate of depletion/exhaustion which indirectly leads to a greater rate of pollution. Conversely, the
greater the profit and accumulation rates, the greater the direct pollution, and the greater the indirect depletion and exhaustion of
nature. OConnor, supra note 26 at 11.
237 Hall, supra note 233 at 84.
238 See Edward Patricki Boyle, Its Not Easy Bein Green: The Psychology of Racism, Environmental Discrimination, and the Argument
for Modernizing Equal Protection Analysis, 46 VAND. L. REV. 937, 963-967 (1993).
239 Eleanor Marie Brown, Note, The Tower of Babel: Bridging the Divide Between Critical Race Theory and Mainstream Civil
Rights Scholarship, 105 YALE L.J. 513, 523 (1995). Land-use decisions, like highway planning, industrial-park location, and bridge
development, affect the development of jobs and housing and the allocation of resources and economic access, even when those
decisions appear to have nothing to do with race. See Martha R. Mahoney, Segregation, Whiteness, and Transformation, 143 U. PA. L.

34

In addition to innate racism, energy resource planning is also characterized by deference to technocracy;
scientists and engineers are perceived to be experts who are in the best position to make important decisions
for society as a whole. In reality, most technical experts are fettered to organizational structures that influence or
dictate the solutions that are considered.240 On the other hand, affected communities possess detailed
knowledge of the local ecosystems and are aware of threats posed by hazardous waste facilities in their midst,
but they are often denied access to the decision-making processes dominated by technocrats working within
bureaucratic systems.241
Rural areas are also more prone to suffer these negative development effects because of industrial
decentralization. Increased industrialization of rural areas,242 is motivated primarily by the lower transaction
costs, in these locations.243 Corporations move to rural areas to avoid the financial and social costs associated
with urban minorities and poverty, and to take advantage of lower taxes and the cheaper rural labor force.244
The greater ability of natural resources to absorb pollution draws corporations to rural areas, but it is primarily
the social and political structures there that attracts them.245 The lower population size and density, reduces
conflicts between corporate practices and population needs and corporate planners expect less organized
environmental resistance in these rural areas.246
During the 1970s and 1980s, in particular, large-scale energy resource developments became widespread
throughout the northern Great Plains and Rocky Mountain Regions, and in most instances these occurred in
geographically isolated and sparsely populated rural areas not only because of the presence of unexploited
reserves of energy resources, but also of the social, economic and political vulnerabilities of traditionally
resource-dependent rural areas.247 These activities also caused rapid population growth, sometimes doubling or
tripling in just two or three years,248 and the cumulative evidence suggests that at least some dimensions of
well-being deteriorate for many residents.249
To summarize, continuing displacement in the United States is caused by several factors. Class
stratification distinguishes those who are allowed to participate in decisions affecting resource development, and
those closely associated with the state become less susceptible to adverse developmental impacts. Persistent
racism, though more subtle today, also allows those in power to make decisions that adversely affect minority
populations. In addition, technocracy allows experts to ignore community inputs in decision-making. Finally,
corporate encroachments into rural areas are also prompted not only by the environments ability to absorb
higher levels of pollution, but also the perceived absence of community organization and resistance to
REV. 1659, 1678 (1995). See also Charles R. Lawrence III, The Id, the Ego, and Equal Protection Reckoning with Unconscious
Racism, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 235-257 (Kimberle Crenshaw et
al., eds. 1995).
240 Conner Bailey, et al., Environmental Justice and the Professional, in ENVIRONMENTAL JUSTICE, supra note 144 at 35, 36.
241 Id. at 38. See also, DANIEL PRESS, DEMOCRATIC DILEMMAS IN THE AGE OF ECOLOGY: TREES AND TOXICS IN THE
AMERICAN WEST 42-48 (1994) (explaining the reliance upon technocracy as a result of our inability to imagine citizens as being
sufficiently active, responsible, and competent enough to manage complex environmental problems).
242 Allan Schnaiberg, Reflections on Resistance to Rural Industrialization: Newcomers Culture of Environmentalism, in
DIFFERENTIAL SOCIAL IMPACTS, supra note 12 at 229.
243 Transaction costs are those costs of linking buyers and sellers in the market place, including all indirect costs of production and
distribution such as the costs of complying with environmental and other state regulations. Id. at 230.
244 Id. at 230.
245 Id. at 230-231.
246 Id. at 234.
247 Richard Krannich and Lori Cramer, Social Impacts of Energy Development in the Western USA: The Case of the Boom Town, in
THE GREENING OF RURAL POLICY: INTERNATIONAL PERSPECTIVES 151 (Sarah Harper ed., 1993) [hereinafter,
GREENING OF RURAL POLICY].
248 Id.
249 Id. at 162.

35

environmentally destructive actions.

The Role of Law
I argue that because the legal system is also a product of hierarchy, it assists the dominant class in the
displacement of people. As critical legal scholars point out, legal systems have the power to legitimize its acts as
neutral decisions ordained by society.250 It creates a political culture that persuades people to accept both the
legitimacy and the inevitability of the existing hierarchal arrangement.251 This is achieved by routing all forms
of serious social conflict into public settings that are heavily infused with ritual and authoritarian symbolism. In
doing so, it supplants democratic participation with authority, and rationalizes acquiescence to the state as
patriotism.252 Legal ideology, it is said, reifies the boundaries within which the nature of social conflict is
defined.253 It does not calm people into thinking that the system is ideal, but it prevents consideration of
alternative systems.254 Hierarchy forces people to experience each other as powerless individuals, and this
powerlessness becomes a source of social repression that leads to the reproduction of class, race, and gender
hierarchies from generation to generation.255
Environmental laws have legitimated the pollution of low-income neighborhoods, and those with
economic power have used these laws to make the poor bear a disproportionate share of environmental
hazards. Most of these laws operate under the premise that environmental harm is caused by individuals acting
contrary to societal norms. Grassroots environmentalists, on the other hand, claim that normal operations of
institutions generate environmental hazards.256 Thus, where traditional environmental laws have focused on the
control of emissions from potential polluters, grassroots environmentalists have concentrated on the prevention of
pollution.257
In the environmental justice context, resorting to law has been criticized as counterproductive. Legal
strategies can be disempowering because it reduces the participants from a community to one or two individuals,
and broad societal injustice into legally cognizable claims,258 which transforms community movements into
another issue requiring new laws or legal strategies. It is feared that this process bolsters existing hierarchies
because it favors legal expertise over community action, and draws solutions from people who are not
affected by the issue.259
There is some truth to the notion that community action should prevail over standard legal action,
but these are not necessarily mutually exclusive. Legal conflicts can become opportunities to disable the
illegitimacy that hierarchies project. There are ways of working in the legal arena that consistently challenge the
250 Peter Gabel and Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 REVIEW OF
LAW & SOCIAL CHANGE 369, 371 (1982).
251 Id. at 372.
252 Id. at 372-373. Class and managerial elites set the terms upon which others lead their lives. Critical scholars argue that the existence
of hierarchy and contradiction in a liberal society is masked by the ideal of the rule of law, so that outcomes are said to be the product of
impersonal, natural methods of choice, rather than imposed preferences of an illegitimate hierarchy. Allan C. Hutchinson & Patrick J.
Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REV. 199,
209-210 (1984). This author is not unaware of the rifts within the critical legal studies movement, but as it has been noted, their works are
recognized more for the similarity of their themes, rather than their differences. Peter Boyle, Introduction, in CRITICAL LEGAL
STUDIES xiv (Peter Boyle ed., 1994).
253 Gabel and Harris, supra, note 250 at 373-374.
254 Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW 413, 418-420 (David Kairys ed., 1982).
255 Peter Gabel, Reification in Legal Reasoning, 3 RESEARCH IN LAW AND SOCIOLOGY 25, 28-29 (1980).
256 Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 ECOLOGY
L. Q. 619, 642-643 (1992).
257 Id. at 644-645.
258 Luke W. Cole, Foreword: A Jeremiad on Environmental Justice and the Law, 14 STAN. ENVTL. L.J. ix, xi (1995).
259 Id. at xiii-xv.

36

states control over the nature of social reality.260

Challenges to the class hegemony have become evident in some places in the United States. The
incursion of urban land uses into the countryside has raised concerns over the protection of the agricultural land
base, groundwater quality, soil erosion, river and stream pollution, and the social transformation of
distinctive rural places into a homogenous suburban culture.261 Changes in farming practices have also raised
concerns. Farming is the largest nonpoint source of water pollution. Agricultural runoff carries sediments,
minerals, nutrients, and pesticides into rivers, lakes, estuaries, and underground water reservoirs, affecting the
quality of drinking water and the aquatic resources of rivers, lakes, and estuaries. Between 675 million and 1
billion tons of eroded agricultural soils are deposited in the water each year, and most of all the nutrients
reaching surface waters come from agricultural land in the form of fertilizers and animal waste. About 500
million pounds of pesticides are used in agricultural fields each year in the United States. People of color suffer
the greatest impact of environmental pollution because they tend to rely on fish consumption as a source of
protein.262 Citizen participation is changing the nature of land use planning, challenging many of the underlying
presumptions of the customary model and the expertise of land use or environmental planners. People assert
that their views on land use and settlement planning decisions are as relevant and important as economic and
scientific considerations. They are making it clear that land use and settlement planning and policy is as
much a social and political issue as it is a physical and economic one,263 and that what is involved is a public
resource, with implications for intergenerational environmental equity.264 Land use and settlement planning in
the United States is becoming more pluralistic and more political.265
6. Ignoring Identity, Recognizing Rebellion
Proposing solutions to environmental justice issues has never been a simple task. Environmental
justice has been described as a political issue that can be harmed by resorting to judicial remedies because of
the absence of the realistic possibility of success.266 To others, the solution to the protection of peoples requires
a holistic worldview steeped in an environmental and social justice ethic,267 or an inclusive and democratic
policy requiring fundamental social and political transformations that seem unlikely in the foreseeable
future.268
260 Gabel & Harris, supra note 250 at 374.
261 Harvey Jacobs, The Changing Nature of Settlement Policy in the USA: A Theoretical and Case Study Review, in GREENING OF
RURAL POLICY, supra note 247 at 135.
262 Ivette Perfecto, Sustainable Agriculture Embedded in a Global Sustainable Future: Agriculture in the United States and Cuba, in
ENVIRONMENTAL JUSTICE, supra note 144 at 172, 175. See also, David Ostendorf & Dixon Terry, Toward a Democratic
Community of Communities: Creating a New Future with Agriculture and Rural America, in ENVIRONMENTAL JUSTICE, supra
note 144 at 149, 155, discussing the threat of the consolidation of control over food production, processing, and distribution by corporate
interests. The growth of superfarms owned by wealthy individuals or families and some big corporations has raised great
environmental concerns. Their huge irrigation systems have bled dry underground aquifers, and they use massive doses of chemicals and
artificial fertilizers which poison the water and killed the essential living organisms.
263 Jacobs, supra note 261 at 137.
264 Id. at 139.
265 Id. at 147.
266 Torres, supra note 170 at 459.
267 Deehon Ferris & David Hahn-Baker, Environmentalists and Environmental Justice Policy, in ENVIRONMENTAL JUSTICE,
supra note 144, at 66, 71.
268 Loffredo, supra note 199 at 1284. The U.S. Supreme Court, however, has acknowledged that economic inequities tend to
reproduce themselves in the political sphere and displace democratic governance. In Austin v. Michigan Chamber of Commerce, (494 U.S.
652 [1990]), the Court recognized that states have a compelling interest in regulating the deployment of concentrated wealth, and upheld
Michigans restrictions in corporate election expenditures. The case challenges the presumption that democratic systems work for the
poor. Id. at 1285, 1367-1389.

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Francis Deng, who was appointed by the U.N. Secretary-General as the Representative on Internally
Displaced Persons concluded that internal displacement is sometimes caused by distributional issues that can be
resolved within the state.269 The remedy, he contends, requires understanding and addressing the causes of
internal conflicts, which are often rooted in the quest for dignity and justice.270 In many cases, conflict is the
result of the politics of identity where individual and group notions of identity conflict with the tendency of the
dominant, hegemonic groups to impose their identity as the framework for national identity. Conflict arises
because there is a challenge to the assertiveness of disadvantaged minority groups.271
While Deng focused on situations which result in civil war or ethnic cleansing, I suggest that this
analysis can be applied in the context of development displacement. Environmental struggles are about people
working for a state that will consider the claims of its disempowered citizens, and tip the balance in their favor.272
They want a fair hearing and to have their rights as citizens and human beings acknowledged.273 The
environmental justice movement operates under the notion that the true test of democracy is the ability and
capacity of ordinary people, especially the disenfranchised and dispossessed, to participate in the decisionmaking procedures of institutions that fundamentally regulate their lives.274 It emphasizes the structural
conditions surrounding the democratic process so that the regeneration of the disadvantaged can occur.275 It is
an effort to reclaim the idea of self-realized individuals and self-regulating communities.276 It opens the
practice of environmental law and policy to traditionally underrepresented communities to ensure their
meaningful participation in processes that affect their health and welfare,277 and rejects reliance upon science
and technology of the federal environmental regulatory scheme as incapable of addressing social justice
issues.278
This is not simply a situation where peoples are working to be respected by organized society as
responsible, participating members. 279 Contemporary social movements, to which the environmental justice
movement belongs, are more radical because they require changes across a broad range of human experience so
that domination can be expunged as a core element of social relations. They seek political reforms that
engender equality, respect, autonomy, and the right to participate in decision-making through changes in the
structures that perpetuate domination, marginality, and environmental degradation.280 These new social
movements
269 Deng, supra note 76 at 251.
270 Id. at 256.
271 Id. at 258-259.
272 John Friedman & Haripriya Rangan, Introduction: In Defense of Livelihood, in IN DEFENSE OF LIVELIHOOD, supra note 5 at 1,
19.

273 Id.
274 William A. Shutkin, The Concept of Environmental Justice and a Reconception of Democracy, 14 VA. ENVTL. L.J. 579, 580
(1995).
275 Id. at 587. Another author suggests that democracy mandates the recognition of the multiplicity of several identities and the
promotion of a political system that is based on layered and shared sovereignties. See Sugata Bose, Safeguards for Minorities Versus
Sovereignty of Nations, 19-FLETCH. F. OF WORLD AFF. 21, 26 (1995).
276 Shutkin, id. at 588.
277 William A. Shutkin & Charles P. Lord, Environmental Law, Environmental Justice, and Democracy, 96 W. VA. L. REV. 1117, 1120
(1994). The authors argue that the movements approach is postmodern in the sense that it rejects technology, science, and rationality as
hegemonic, and instead embraces plurality, heterogeneity, multiplicity, and otherness. Postmodernism, according to the authors,
listens to the voices of the oppressed and the marginalized. Id. at 1128-1129.
278 Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22
ECOLOGY L.Q. 1, 27 (1995) (asserting that environmental justice activists insist on a participatory, democratic model that considers the
larger social context, and they seek the elimination, and not the distribution of risk). Id. at 28.
279 Kenneth L. Karst, Citizenship, Race and Marginality, 30 WM. & MARY L. REV. 1 (1988).
280 Allen Hunter, Rethinking Revolution in Light of the New Social Movements, in CULTURAL POLITICS, supra note 224 at 320, 326332.

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advocate a new form of citizen politics based on direct action, participatory

decision-making, decentralized structures, and opposition to bureaucracy. They
advocate greater attention to the cultural and quality-of-life issues rather than
material well-being. They advocate greater opportunities to participate in the
decisions affecting ones life, whether through direct democracy or increased
reliance on self-help groups and cooperative styles of social organization. They
appeal to value- and issue-based cleavages instead of group-based or interest
group issues.281
They defy the presumption that society has developed impartially.282
The underclass is made to believe that both the domination of nature and the uprooting of people
are necessary for economic development. I do not suggest that development displacement is simply the
subordination and exclusion of the Other283 from political participation in a democratic arena. In the context of
development displacement, the Other stands in direct opposition to the societal imperative of wealth
accumulation and the subordination of nature. Viewed this way, the underclass becomes the necessary target of
displacement. Resistance to displacement is a challenge to the elites assurance that their sacrifice is necessary;
they question the domination of outsiders who do not acknowledge their identity as a community. As one author
put it, rebellion rejects hierarchy, and requires that experiential truths be reconciled with the dominant class
perspectives.284 Cynthia Hamilton underscored this when she said that:
The emphasis on community is far from an abstraction: It is the source of an
important contribution to alternative models, values, and lifestyles. It is also a direct
response to new development and environmental hazards that literally threaten
homes and neighborhoods, a response that fosters the transformation of individual
fears and concerns into group efforts. In these situations, the cry to save
community is synonymous with the cry to save the earth.285
The State, as an agent of globalization and unlimited economic gain, has been unable to recognize this.
Community initiatives arise independently of state action. In an otherwise gloomy account of the global
corporate takeover of the international economic system, one study pointed out that
Local citizens movements and alternative institutions are springing up all over
the world to meet basic economic needs, to preserve local traditions, religious life,
cultural life, biological species, and other treasures of the natural world, and to
struggle for human dignity. Because the global economic and political systems are
out of synch, and therefore unresponsive and unaccountable, people are staking
their own living space. Exiles from the new world order, they spend their lives
281 Joel F. Handler, Postmodernism, Protest, and the New Social Movements, 26 LAW & SOCY REV. 697, 707 (1992) cited in
Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 CALIF. L. REV. 741, 785 (1994). See also Calmore, supra note
215.
282 Marlee Kline, The Colour of Law: Ideological Representations of First Nations in Legal Discourse, 3 SOCIAL & LEGAL
STUDIES 451, 452- 453 (1994).
283 Culture shapes identity by contrasting our beliefs and behavior as the model to be followed, with those of the Other, which
must be avoided. Only those who conform with the model are full members of the community and are entitled to equality. See Karst,
supra note 279 at 2-3.
284 Robert L. Hayman, Jr., Re-Cognizing Inequality: Rebellion, Redemption and the Struggle for Transcendence in the Equal
Protection of the Law, 27 HARV. C.R.-C.L. L. REV. 9, 65-67 (1991).
285 Hamilton, supra note 224 at 191.

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building the communities that give their lives meaning, establishing links with other
communities with common interests. . . .
More and more people who are bypassed by the new world order are crafting their
own strategies for survival and development, and in the process are spinning their
own transnational webs to embrace and connect people across the world.286
7. Conclusion
Poor and minority communities are not only more likely to suffer the negative impacts of pollution
prevention programs, to be targeted for the siting of unwanted land uses, to consume contaminated foods, or
to be excluded from participating in environmental decision-making processes. They are also more likely to
bear the brunt of state development efforts, and are more likely to be displaced by large-infrastructure projects
or resource extractive activities. But development efforts that lead to displacement of entire communities have
not been adequately discussed in the environmental justice literature. The trend, rather, has been to discuss the
tragedy as a failure of refugee law. It is often addressed as an issue involving only large infrastructures in Third
World countries or as a case of flawed planning practices by international financial institutions. Scholars have
suggested changes to the existing framework of international law to accommodate the needs of those that
have been forcibly displaced. While the literature is correct in assessing that the international refugee regime is
ill-suited to address the issue, the remedies that have been proposed can do little to prevent development
displacement and, can at best mitigate the effects of the dislocation of people.287 These solutions overlook the
paramount role of the state in initiating development displacement and focus only on solutions that can mitigate
the plight of displaced communities.
I have also argued that scholars overlook the most basic feature of resistance to development
displacement it is an expression of the desire to be recognized as a community a rebellion against
class hegemony. The proposed solutions to development displacement do not treat these concerns and will
likely fail. Together, they emphasize intervention by the international community and undermine the
communities assertion of their identity.
The environmental justice movements attention to community empowerment and action should also
be considered as a framework in addressing development displacement. My task here was not to create a
formula that would instantly resolve the problem of development displacement. Rather what I hoped to do
was to reorient the way the problem is confronted. Because modern societies are driven to dominate nature,
the proper approach would be to address the structures that prevent communities from being recognized by
the state. The task at hand is not to augment the states role in uprooting peoples, but to recognize and respect
communities.

286 RICHARD J. BARNET & JOHN CAVANAGH, GLOBAL DREAMS: IMPERIAL CORPORATIONS AND THE NEW
WORLD ORDER 429 (1994).
287 There are suggestions from those that espouse an international law approach that parallel those that have been advocated by
environmental justice activists; those that focus on empowerment by ascertaining access to information and decision- making
processes. However, because they are promoted as international law solutions, these solutions inevitably face the question of whether
they can be effectively enforced.

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