Publication Review
The Disproportional Allocation of Environmental Risks and the Construction of Environmental Justice
By Christoph Hess, 2016-02-12
February 2015 - A new contribution to the discussion on Environmental Justice was recently published in Brazil. The article "A Alocação Desproporcional dos Riscos Ambientais e a Construção de Justiça Ambiental" (The Disproportional Allocation of Environmental Risks and the Construction of Environmental Justice) was written by Rafaela Beltrami Moreira and published on the Brazilian internet portal Âmbito Jurídico. Rafaela Beltrami Moreira is a lawyer specialised in criminal law. In her article she gives an overview about Environmental Justice principles as discussed in Brazil and adds a juridical conceptual perspective, discussing how Environmental Justice could be incorporated into law theory.

The following review discusses some of the concepts and issued raised in the article with regard to Environmental Justice research.

Concrete and abstract risks

Moreira starts with an introduction on Environmental Justice (EJ) principles, focussing on the unequal allocation of environmental risks. Different to a common view, according to which environmental harm is equally distributed within the society, EJ highlights the inequality and injustices in this distribution, being that poor and marginalised classes, communities and groups are disproportionally affected by environmental harms and risks and, on the other hand, don't receive an adequate share of environmental benefits. Moreira introduces the concept of concrete and abstract risks from Leite e Belchior (2012), arguing that it is with the abstract environmental risks, invisible and insensible at a first moment (e.g. gradual air pollution or the greenhouse effect), that the affirmation of an equal distribution of responsibility and affection appears more coherent. However, according to Moreira, looking at concrete risks environmental injustices became more evident.


Targeting environmental injustice in Brazilian urban areas, Torres and Marques (2001, cited in Acselrad et al. 2009: 48f), carried out studies on the superposition of poverty and urban risks in the municipality of Mauá, a suburb of São Paulo city. Discussing their results, the authors introduced the concept of hyper-peripheries, or "peripheries within peripheries", defined as "the spatial superposition of the occurrence of environmental harm and poor socio-economic conditions in an intra-urban context." Studies which focus on average values, in contrast, often play down these occurrences and hence don't reflect reality.
The concept of hyper-peripheries merges environmental and social discrimination of communities. In this sense the concept is useful to apply to other countries and regions in an urban context. It can be added that this periphery approach has at least three levels: First, on a global scale exist countries which are situated on the periphery of the capitalist system. Second, within these countries, there exist urban centres, which usually concentrate peripheries on their outskirts or in determinate areas. And third, within these peripheries there exist the hyper-peripheries, as defined before. Moreira calls attention, furthermore, on the necessary precaution with average values.

The question of "development"

One of Moreira's conclusions from these findings of inter-urban environmental injustice is that the improvement of the living conditions of such poor communities and families is a precondition to resolve the environmental problems which affect them. This included, according to her, state intervention in order to "enable the economic ascension of poor families".

Maybe without noticing, Moreira tackles here one of the core issues of EJ, which is the question of development. That the solving of the environmental question is closely linked to social development of the poor is probably a widespread consensus in the EJ community. However, how this development should actually look like is much more controversial. EJ is not simply achieved by "the economic ascension of poor families"; on the contrary, rising consumption and living standards following the example of western industrialized capitalism is likely to even increase environmental injustice. Martínez Alier, as soon as 1995, questioned the "post-materialist thesis" and asked if people are really "too poor to be green". The post-materialist thesis argues that after a certain level of economic growth technical development and cultural change would decrease the environmental impacts of the economically most advanced countries (Environmental Kuznets Curve). However, this assumption did not hold true, and today it are still the few industrialized economies on the top of the world scale which have by far the highest environmental footprint. Martínez Alier (1995: 9) concluded that the post-materialist thesis shows "blindness towards the resource constraints on and the environmental effects of the mass-production and consumption of material commodities."

It is for this reason that EJ has to go hand in hand with development theory: "Herman Daly [...] suggests that the word 'development' implies changes in the economic and social structure, while 'growth' means an expansion in the scale of the economy which probably cannot sustain itself ecologically." (Martínez Alier 2007: 47, translated from Portuguese). Veiga (2009: 162, translated from Portuguese) criticises in this context the "dictatorship of the GDP": "Because the calculation [of the GDP, editor's note] does not include the depreciation of important assets, there is no easier way to increase the GDP than abusing the depletion of natural and human resources. With overexploitation of work and/or nature it only increases, while the true riches actually decrease."

Moreira turns to the necessity of a "new development model" later in her article. Her last paragraph – asserting that the concretization of EJ is still far away but that one could "establish guidelines to start the search for such a desired new socio-environmental state" – seems however rather helpless. But this is maybe characteristic for the EJ community, as many researchers encounter the limits of the "development model" in their conclusions on how EJ could actually be achieved or implemented. The further fusion of EJ and development research and the concretization of alternatives and how they could actually concretely look like is therefore one of the great challenges of EJ research.

Infernal alternatives

In the second section, Moreira turns to environmental inequality, which she subdivides into unequal environmental protection and unequal access to environmental resources. She calls attention that this is a problem on a global scale, derived by the power of corporations towards nation states: "The mobility of capital is a factor which defines the submission of the peripheral countries to environmental risks [...]." This situation led many countries to a mere option between infernal alternatives, a concept introduced by Acselrad et al. (2009: 137), describing a decision between two or more unfavourable options, "[...] between precarious and risky work conditions or no work at all, between some economic dynamism – even if it is predatory – or no growth, or very poor growth rates." (Acselrad et al. 2009: 137, translated from Portuguese)

To complement this discussion it is useful to introduce the concept of ecological debt (not mentioned in Moreira's article). Martínez Alier (2007: 287, translated from Portuguese) writes: "First [...] the exports of raw materials and other products from relatively poor countries are sold at prices which do not include the compensation for local and global externalities. Second, the rich countries use the environmental spaces and services disproportionally without paying for them, even ignoring the others' rights to these services, such as natural reservoirs and the temporal deposits of carbon dioxide."

This issue is another interesting EJ research topic. How do the "ecological debt" and the "ecologically unequal exchange" manifest themselves and concretely look like in the world economy today? Is this tendency decreasing as industrialized countries take over responsibilities? Or has it even been increasing during the last decades as many industrialized countries closed down raw material production (e.g. coal, iron, aluminium, oil, gas, uranium etc.) on their own territory and passed on to import these materials? Case studies on countries regarding their ecological balances could contribute to answer these questions.

The state at the mercy of science and the loss of sovereignty

From the power of international capital towards poorer countries Moreira concludes that the nation states lost part of their sovereignty. Moreover, she continues, the uncertainty about many environmental risks and harms weakens further public state apparatuses and the civil society, turning them dependent and susceptible towards science, which is itself increasingly influenced by economic interests. She cites José Esteve Pardo (2009), who argues that the modern state is "at the mercy of science" and even calls this a "modern State of Exception", deriving from the scientific uncertainty which implies a juridical insecurity. In this situation science and economy represent the "real sovereign in the post-modern risk society".

One could summarize that Moreira, in accordance with Pardo, sees in the modern capitalist society a sort of technocracy. This criticism is not new. Habermas argued as early as in 1968 that the politics in the modern society had to obey the "objective exigencies" produced by scientific-technical progress. In this condition "the process of democratic decision-making about practical problems loses its function and 'must' be replaced by plebiscitary decisions about alternative sets of leaders of administrative personnel." (Habermas 1968: 253) Feenberg, building on Habermas, defines technocracy as "a wide ranging administrative system that is legitimated [emphasis in the original] by reference to scientific expertise rather than tradition, law, or the will of the people" (Feenberg 1999: 4). It is the result of the reduction of political to technical discussion, when "politics becomes another branch of technology" and "public debate will be replaced by technical expertise". (Feenberg 1999: 2)

Following this definition, one could assert that Pardo's "modern State of Exception" is a sort of technocracy, thus. It is important to mention that all of us, as scientist or researchers, work in this setting. Moreira calls therefore attention to the EJ community about our responsibility and the necessity of reflection of our own roles as scientists. EJ principles are incompatible with technocracy. Acselrad et al. (2009: 22) argue, for example, that the recognition of different forms of knowledge – e.g. knowledge of workers, ethnical groups and local communities about their environments – should be recognized as equally relevant as scientific or technical knowledge for the elaboration of environmental policies.

Environmental citizenship and the "Environmental Constitutional State"

In section three of her article, Moreira turns to the construction of EJ. From the former assertion of the loss of sovereignty towards science and economy she derives the necessity of strengthening the state, in order to increase "the capacity of resistance to the unequal allocation of environmental risks". For this purpose she suggests investments in "own scientific research and technology, free from the interference of economic agents". As other means of strengthening EJ the author suggests environmental education as a fundamental part from the beginning of infant education and the creation of consensus forums (participative and shared administration), leading to "a new model of citizenship, known as 'environmental citizenship'."

© Christoph Hess

Turning to law theory, Moreira goes a step further and suggest, on the base of environmental citizenship, the orientation towards "the implementation of the Environmental Constitutional State" (Estado de Direito Ambiental), a denomination taken from Staczuk (2012). Such a state would impose the strict observance of normative precepts regarding environment and create rules in accordance with a systematic view of the environment. Moreira sees this proposal in sharp contrast to "liberal environmentalism", which according to her "defends that a way to solve the unleashed exploitation of the environment and the shortage of environmental resources would be their privatisation." She argues that under this approach the exploitation of the environment would continue but just become more expensive. Moreover, the State would become even more vulnerable towards economic agents and environmental services more expensive, depriving poorer classes and communities from the access to it. Moreira concludes: "What would happen, apparently, is not the reduction of the exploitation of the environment, but the accentuation of environmental injustice."


The "strengthening of the state" appears as a central strategy in order to implement EJ in Moreira's article. While this argument is comprehensible in the context of growing power of capital and in contrast to "liberal environmentalism" and neoliberalism in general, Moreira seems to take a rather uncritical position towards state policies. In many cases environmental injustices are happening due to the omission of state surveillance towards economic agents, or the absence or poor quality of public services. In these cases "the strengthening of the state" appears as a coherent strategy to tackle these injustices. However, in many other cases the state is actually itself a central protagonist of environmental injustice, as it is for example frequently the case in hydropower and other large energy and/or infrastructure projects. Environmental injustices might be triggered by economic agents or the state, or a combination of both. A mere "strengthening of the state" falls therefore short as a general strategy to implement EJ, but has to be enhanced by a discussion on how this state should actually act and function. The concept of the "Environmental Constitutional State" might open a way how to approach this issue.

The principal strength of Moreira's article is her valuable contribution to the application of EJ in the field of law theory and practice. Although the concrete content and form of an "Environmental Constitutional State" are very vague in her article, she opens the way to further discussion and research aiming at introducing EJ in the field of law and enhancing the global EJ community by another discipline.

Moreira's notion of EJ, as argued in her article, is largely concentrated on its distributional dimension. Schlosberg (2007) argues that distribution is surely central in EJ, however insufficient to capture all of its aspects, and suggests therefore taking recognition and procedure as additional dimensions into account. These two dimensions could be very relevant in a juridical context, too, and thus be a valuable contribution to advance Moreira's discussion.


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Image: © Christoph Hess