Summary : This post originally appeared in the Oxford Human Rights Blog on April 18, 2016. The systemic collapse of the U.S. coal extraction industry has scarcely been of benefit to the subordinated Appalachian citizenry. However, tangible socio-legal progress may be achieved in the Appalachian region vis-à-vis a critical human rights approach to environmental justice issues.

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By Nicholas F. Stump

 

The natural resource extraction industry has long wrought environmental, social, and economic devastation in Appalachia—a U.S. region historically defined by a deeply exploitative coal extraction mono-economy. However, in tandem with the (climate change-driven) global pivot towards non-carbon, cleaner energy sources, widely publicized market and legal developments have resulted in a systemic collapse of the once dominant American coal industry.

Progressive environmentalists rightly celebrate these historic energy market transitions towards a more renewables-focused power grid. The historic Paris Climate Agreement is perhaps a first crucial step in averting catastrophic, carbon-driven climate change. But the Appalachian region remains imperiled: Among other persistent issues ( endemic poverty , most notably), the catastrophic after-effects of surface mining—paired with environmental harms stemming inter alia from hydraulic-fracturing externalities and a crumbling infrastructure —pose serious public health concerns for the Appalachian citizenry.

“Appalachia” by Justin Meissen (licensed under CC by SA 2.0)

Poisons continuously leach into Appalachian waterways via, among other multitudinous sources, coal slurry ponds, decades-old acid mine drainage, and endless MTR valley fills (which have obliterated over one thousand miles of Appalachian headwater streams). This coal extraction-produced “environment degradation…will remain despite the reduction in the production of coal.” Concurrently, fracking operations poison Appalachian water and air alike—and incidents stemming from a rapidly deteriorating infrastructure produce environmental disasters on the scale of the Elk River Chemical Spill , a national U.S. scandal that left three hundred thousand Appalachian citizens without potable water. Therefore, vast stretches of Appalachia are marked by insufficient environmental protections.

These dire public health concerns are usefully explored using a human rights approach to environmental justice (“EJ”), which illustrates how disproportionate environmental impacts on subordinated groups are problematic and that structural environmental inequities must be remedied as part and parcel of any comprehensive and just regional socio-legal reconstruction project.

EJ has been a prominent critical discourse for decades. Supported by empirical literature , it teaches that environmental harms tend not to be distributed equitably within modern industrialized liberal democracies; rather, minority, female, and low-income populations suffer disproportionate health and economic-related impacts. Moreover, EJ has continued to evolve. Third and fourth wave critical re-visionings of EJ involve an “integrated particularized approach” that exhibits a “greater complexity based on each community’s cultural, historical, and political experience and its specific needs and goals.”

The Clinton Administration’s Executive Order 12898 institutionalized normative EJ principles in the U.S.; following a period of turbulent policy oscillation, President Obama subsequently reinvigorated the order in 2008. Under E.O. 12898, U.S. federal agencies must consider EJ dictates in applicable regulatory decision-making. To date, widespread implementation of the order has proved largely elusive—and the failure of E.O. 12898 to curtail the long-lasting public health impacts of the radically destructive mountaintop removal mining (“MTR”) practice on low-income Appalachian populations, in particular, is now well-documented.

A human rights approach to EJ strengthens the discourse and is especially applicable to the uniquely situated Appalachian region. Scholarly commentators and legal practitioners have “framed the demands of the environmental justice movements nationally and globally in the language of human rights.” For instance, insufficient environmental protections pertaining to the “substantive right to a healthy environment ” are a prima facie violation of principles articulated in numerous regional treaties ; additionally, tribunals have determined that insufficient environmental protections pertaining to ” life, health, food, [and] water ” implicitly violate other regional human rights treaties.

Such legal trends are heartening. E.O. 12898 has failed Appalachia in part because its dictates are merely one factor to be weighed by an often-captured governmental elite. Re-visioning EJ concerns as not a sole regulatory factor, but rather as enforceable, controlling human rights may indeed yield more transformative EJ outcomes for the region. Moreover, a critically informed human rights approach —wherein the Appalachia demos co-determines the scope and nature of such rights at the grassroots level—is a crucial procedural component for a citizenry so long marginalized by structural democratic deficits.

Profound Appalachian socio-legal reconstructions are indeed required in the region: And a more substantial human rights approach to EJ is perhaps one component of a more comprehensive critical project for radical Appalachian reform. Socio-reconstructions of this nature are necessary ends-in-themselves; however, such reformist efforts may additionally serve as a potentially potent model in broader regional and global work. Diverse reformist outcomes might, therefore, be accomplished through critical explorations of Appalachian human rights.

Nicholas F. Stump is a Library Faculty Member at West Virginia University College of Law, where he administers and teaches in the legal research curriculum. Professor Stump’s scholarship focuses on the intersection of environmental law, Appalachian studies, critical legal theory, and critically informed approaches to legal research and analysis.

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