Examining the Role of Substantive Justice in Planning Controversial Facilities

Introduction

In 1968, Martin Luther King, Jr., went to Memphis to support the Memphis Sanitation Strike—the protest of African American garbage workers demanding better pay and working conditions. ¹ While delivering his speech on April 3, 1968 at Mason Temple in Memphis, King said: “The issue is injustice. The issue is the refusal of Memphis to be fair and honest in its dealings with its public servants, who happen to be sanitation workers.” ² Next day Martin Luther King, Jr. was assassinated, but the spirit of his last speech remained and flourished in the emerging environmental justice movement ³ that would fade boundaries between civil rights and environmental causes, ⁴ and would result in a successful disruptive change ⁵ and emergence of a new paradigm. ⁶

Since the 1960s, the environmental justice discussions around waste management issues were primarily focused on socio-spatial patterns of siting unwanted waste management facilities. ⁷ This focus can be explained by the fact that the grassroots protests from which environmental justice movement grew were centered around the allocation effects of hazardous waste disposal in disadvantaged communities. ⁸ However, environmental justice claims have not been solely directed towards locational considerations and distributional inequalities. They also have included issues of procedural justice.

The recognition that people cared not only about the fairness of facility allocation, but also about the process itself, emerged in the 1970s ⁹ and alongside the concept of distributive justice, the notion of procedural justice was introduced. ¹⁰ Procedural justice refers to the fairness of certain procedures especially in relation to underrepresented stakeholders ¹¹ and is strongly embedded in the existing institutional and legal structures. ¹² “Procedural justice refers to perceived fairness of the quantity and quality of participation process,” ¹³ whereas the quantity of participation implies the number of public meetings, consultation sessions, or press activity. The quality of participation has to do with the level and timing of public involvement, issues of representation and voice, the impartiality of the process, and availability of information. ¹⁴

Although the primary attention of scholars has been directed towards distributive and proceduraljustice, ¹⁵ environmental justice scholarship has also conceptualized the notion of substantive justice. The latter “is about what constitutes a fair outcome.” ¹⁶ Although both distributive and substantive justice refer to the fairness of the outcome, the former is focused on the spatial distribution of environmental risks, whereas the latter has to do with the actual decision of pursuing certain practice regardless of its location. It is important to highlight this distinction, as previous scholarship has brought certain confusion while delineating substantive environmental justice. For example, Bell ¹⁷ argues that substantive environmental justice should provide answers to the following three distribution-related questions: “who are the ‘recipients’ of environmental justice? What is distributed? What is the principle of distribution?” In this conceptualization, substantive justice and distributive justice are synonyms. The three questions assigned by Bell ¹⁸ to substantive environmental justice are described to define distributive justice by Walker. ¹⁹ Yet, the empirical evidence from this study reveals that, although both relate to the final outcome of the planning process, distributive and substantive accounts of environmental justice differ from each other.

Although it has been acknowledged that environmental justice claims go beyond the distribution of environmental ills and race issues ²⁰ and incorporate the plurality of conceptualizations of justice, ²¹ substantive justice and its role in formulating public stances has enjoyed relatively scant attention. By overlooking substantive justice in environmental justice scholarship, we may fail to recognize important undercurrents of public opposition towards unwanted facilities. As Walker notes, ²² the “overreliance on simple and uni-dimensional geography in environmental justice analysis may serve to obscure inequalities that are constituted and spatialized in different ways.”

Using qualitative inquiry into three cases of planning waste incineration plants in Ontario, Canada, this study goes beyond distributional understanding of environmental justice and explores the role of substantive justice in environmental planning processes. While acknowledging the importance of distributional concerns, the study finds that beliefs about different waste management options notwithstanding facility location, and namely, their implications for human health and the environment and influence on shaping the future of waste management systems, significantly shape the attitude towards the proposed project. This conclusion underscores the importance of substantive justice and suggests important implications on how to view and address public opposition in controversial environmental planning processes.

Methods

Between 2009 and 2010 three case studies of planning waste incineration plants in Ontario were conducted—Halton Region thermal treatment project, Niagara-Hamilton waste-to-energy facility, and Durham-York Energy Centre. The cases differed in their characteristics, contexts, and process outcomes. The Halton and Niagara-Hamilton cases explored the planning processes that aimed to introduce waste incineration but failed to do so. The Durham-York case investigated the planning process where the two municipalities have partnered to construct a mass-burn incineration and finalized the project.

Interviewing was the central method of this study to gather primary data and gain insight into the planning process. In total, 18 semi-structured interviews with the representatives of the regions and municipalities, consultation firms, and environmental and advocacy organizations were conducted between October 2009 and April 2010. On average, interviews lasted for about an hour. When the informants granted permission, their interviews were recorded and later transcribed. The interviewees were asked about their experience of participating in environmental planning processes and their views on the fairness of the planning outcome. To minimize my personal biases and to ensure the validity of the gathered primary data, the interviewees were asked to verify the interview transcripts.

The interviews were complemented by a review of the archival data. The analysis of the documents that were produced throughout the planning process enabled a better understanding of the setting and context as well as the approaches and views of the actors. The majority of the studied documents consisted of the official documents produced during the planning process. The analyzed documents included environmental assessment reports, meeting minutes, reports on public consultations, official media releases, and official agreements (e.g., between the regions to conduct a joint study).

Results

From the perspectives of interviewees, the spatial distribution of facilities and siting decisions were not a determinant of a fair outcome. Siting was considered to be a relatively insignificant issue compared to the overarching problem of introducing an incinerator plant as one of the waste management options. As a representative of the involved environmental advocacy group explained:

The siting issue is such a minor part of it, because the impact of the incinerator is wide ranging. The problem is incinerator itself, not so much siting of it. You will always get NIMBY [not in my backyard], but for real people who fight against it, like us, it's not about that. I think that politicians don't give credit to how well-educated the public is, or how well-educated they can become when it comes to the things that they care passionately about.

The strong emphasis on substantive justice and deeply rooted beliefs about waste incineration and its environmental impact, does not denounce the existence of the siting considerations of distributive justice. When describing the controversial nature of waste incineration projects, the interviewees often acknowledged that there will always be people who are primarily driven by NIMBY sentiments. Most interviewees agreed that NIMBY is still an important factor and, in general, the public gets more active once the proposed project may directly affect them.

The issues of distributive justice were strongest in the Niagara-Hamilton case, where the informants linked them to siting polluting facilities in disadvantaged communities. Such a conclusion can be traced back to the experience of hosting a polluting SWARU (City of Hamilton's Solid Waste Reduction Unit) incinerator in Hamilton. In the latter case, the link between the facility location and its possible negative impact on human health and the environment was strongly perceived.

Yet, even in the Niagara-Hamilton case where the historical experience of hosting a polluting incineration plant activated distributive justice claims, the emphasis on substantive justice was evident. Those opposing the project stressed that although they were willing to be part of the planning process and bring their contribution, they had a strong stance about the appropriateness of incineration as a waste management option, that was unlikely to change. As a representative of the Hamilton-based environmental organization explained:

I have always expressed support to the municipality for the progressive work they have done. We have got the relationships so that we are comfortable in expressing that we are not happy about the certain issue. But at the same time, we are the organization that is always more than welcome to cooperate with the city on the issues that we can work together although at the end of the day it is about the substance of the problem.

The idea of compensation was unanimously negatively evaluated by the interviewees despite their conflicting views on the project. Interviewees in all three cases doubted or altogether rejected the effectiveness of compensation schemes during environmental planning processes. Commenting on the possibility of compensation, the leader of an environmental advocacy group responded: “our objections to the incinerator were so fundamental that you couldn't buy us off. That's what it [compensation] is—trying to buy people off.” On the other hand, the regional official noted that although compensation schemes are not totally effective, they could be effective to some extent depending on “the morals and the intent of the people” who oppose the project. As he explained:

There is no difference from the case when the compensation is given for the piece of property where the road expansion is planned. The compensation is not totally effective, but it can be. For EFW [energy-from-waste] facility or any other waste disposal facility, you get very escalated opposition. Therefore, offering compensation won't work in this case.

Even in the case of the Niagara-Hamilton thermal treatment plant, were the sentiments of distributive justice were strongest, the interviewees noted that compensation would not be effective as for the public; rather than being a mechanism of an equitable redistribution of costs and benefits, it implies that the facility has an undesirable impact on the environment and human health.

Discussion

The findings of this research reveal that substantive justice accounts are different from those related to distributional concerns, and play an important role in formulating actors' positions towards the proposed project. Substantive justice is associated with the fairness of the final outcome regardless of its location, and has to do with the beliefs about different waste management options, namely, their environmental performance and influence on shaping the future of waste management systems. Therefore, those opposing the proposed project consider incineration to be an unfair practice notwithstanding its location, because it will negatively affect human health and the environment, and will hinder waste reduction efforts. ²³

Although this finding does not denounce the importance of distributional issues, the data analysis reveals that the perceptions of fair outcome are also linked to the normative stances around waste management alternatives. Thus environmental justice is not only about distributive justice issues on who benefits or suffers from a particular practice, and where and how it is executed, but also about the fairness of the choice of the practice itself. Therefore both—substantive justice and distributive justice—should be incorporated into the multifaceted environmental justice discourse within the context of planning waste incineration plants.

The existence of strong beliefs about how waste should or should not be managed has an important implication on how to address public opposition. Namely, within this context, a widely discussed mechanism of compensation loses its topicality. The existence of strong substantive justice claims towards proposed waste incineration plants explains the fact that compensation is often not viewed as an effective solution. Most of the informants negatively responded to the possibility of both financial and in-kind or public good compensation. The evidence from the case studies conflicts with the assertion by Claro ²⁴ that compensation is a realistic mechanism to reach the equal distribution of burden by transferring resources to those who host the facility. The conclusions over the effectiveness of compensation also contrast with the explanation by Gallagher et al. ²⁵ that compensation is able to reduce public opposition towards the proposed plant.

As substantive justice in this study is about the fairness of waste management options implying their impact on the environment, it strengthens the conceptual connection between environmental justice and the environment itself. It has been argued that the major focus of environmental justice discourse, including those related to distributive and procedural justice issues, has been on environmental injustices and ills to humans, rather than the unjust treatment of the environment itself. ²⁶ By highlighting the importance of substantive justice, the focus expands not only on the unjust treatment of human beings, but on the non-human environment as well. Substantive justice claims, as shown in this study, relate to practices (waste incineration) that are perceived to be unsustainable. Aside from the concern that incineration will cause air pollution, substantive justice claims are also about making a choice (waste incineration) that will hinder more environmentally favorable options of waste management. The focus of substantive justice, therefore, is about what actors perceive to be fair in terms of their choices that will have short- and/or long-term impact on the environment.

The findings of this study also reveal that in planning processes for waste management facilities, the focus of the environmental justice discourse may be shifting from redistribution to prevention. ²⁷ If for the past decades the major discourse was about allocation issues and equitable distribution of environmental burden, today the central theme seems to be addressing practices and choices that create the need for the redistribution. In the waste management sector, increasing attention is directed towards waste reduction and recycling practices. Environmental justice discussion, therefore, is concentrated not only on the fairness of practice allocation, but on the fairness of the practice itself.

More broadly, substantive justice closely relates to the concept of “just sustainability” ²⁸ that brings together environmental justice frame and sustainable development one. Just sustainability is about ensuring good quality of life for present and future generations but achieved in a just manner. As Agyeman et al. ²⁹ explain:

Sustainability, we argue, cannot be simply a “green” or “environmental” concern, important though “environmental” aspects of sustainability are. A truly sustainable society is one where wider questions of social needs and welfare, and economic opportunity, are integrally related to environmental limits imposed by supporting ecosystems. This emphasis upon greater equity as a desirable and just social goal, is intimately linked to a recognition that, unless society strives for a greater level of social and economic equity, both within and between nations, the long-term objective of a more sustainable world is unlikely to be secured.

The latter implies not only socio-spatial patterning of environmental bads in an equitable manner, or ensuring just and inclusive decision-making processes, but also making choices that are sustainable. This is why the substantive justice accounts should be fully incorporated into the environmental justice discourse.

Conclusion

This article explored substantive justice within the context of planning waste incineration plants. Whereas scholars have researched both distributive and procedural accounts of environmental justice, the current scholarship falls short in investigating substantive justice discourse with the same rigor and detail. By studying three cases of planning waste incineration plants in Ontario, Canada, this article concludes that whereas the distributive aspect of environmental justice is undoubtedly important, substantive justice plays a significant role in environmental justice discourse, particularly in defining the fairness of the practices to be adopted (or rejected).

From the theoretical perspective, this article contributes towards broadening theoretical bases of environmental justice by underlining the importance of substantive justice in environmental planning processes. It thus addresses the call to recognize and explore the plurality of environmental justice accounts that go beyond the distributive theories of justice. ³⁰

From the practical perspective, this research enhances our understanding about perceptions and motivations behind public opposition towards infrastructure projects, and particularly waste management facilities. Given the complex nature of public opposition phenomenon, the research addresses the need to build an in-depth understanding of public motivations and perceptions that shape their attitudes towards proposed projects. ³¹ This comes as a timely contribution when the waste disposal capacities are decreasing, yet the waste amounts are steadily increasing and the pressure rises to find local solutions to waste management problems. Set against this background, the introduction of new waste management facilities proves to be a challenging and costly endeavor, mainly due to the strong public opposition. The need to better understand the undercurrents of controversial planning processes is, thus, obvious.