Fishing for Justice or Just Fishing?

This paper is based upon a talk given at the Fifth Annual Environmental Justice Symposium, entitled “Just Water: Solving an Environmental Justice Crisis.” A critical line of reasoning in the symposium was that people have a right to publicly-held “resources,” but that the right is often abrogated by the actions of agents with sufficient power to create or flout laws or to act in the spaces between laws. These agents can be private or public actors, but what they hold in common is an arrogant tendency to direct public goods toward private gain. An important facet of this problem is the real life-or-death situation that many people in the world face when it comes to having access to both water and the common wealth that water brings.

Just as the common wealth of water has been commodified and access to it has been denied to communities based on race and relative poverty, fish populations have been exploited and contaminated with disproportionate effects on poor, immigrant, and Native communities. Wealth and its concentration for private gain is taken for granted in Western-dominated cultures, often at the expense of public benefits that can accrue from treating wealth as a commonly-held value from which we can all draw. While preparing the symposium talk, I read an article by Joe Brewer on the CommonDreams web site[1] which differentiated between a) wealth as a societal value based on the health of the Earth and communities—wealth which is not created and which can be used by anyone, and b) wealth that is material accumulation, based on exchange currencies and based on extraction of benefits from the Earth and labor pools.

Two ways of considering the environmental justice ramifications of contamination and consumption of fish are through the lens of disparate health impacts (exposure to contaminants) and lack of involvement of impacted people in decision making.

I. Differential Exposure to Environmental Toxins

Disparities in environmental conditions leading to health impacts is a hallmark environmental justice issue. Constant questions are: how do we conclude that there is differential exposure among groups, potentially leading to health disparities among these groups, and how do we define these disparities as an environmental justice issue?

Mercury was used in nineteenth century gold mining operations in the Coast and Sierra Nevada ranges. Mining practices left many watersheds and waterways laden with mercury, which gradually washed downstream to the ocean. Because of these legacy sources and modern industrial releases and in the presence of natural conditions, or human-polluted environments, mercury enters the food chain and ends up in fish that people like to eat. As concentrations of mercury (as well as other pollutants) are high, there is a definite risk to public and individual health, particularly for people who eat substantial quantities of fish.

People without access to cars and boats tend to fish near home. Even those with cars tend to favor shorter trips to familiar places. As most people and most anglers live in urban areas, most fishing occurs near urban areas. The large urban areas of Northern California are also downstream of agricultural areas and down-wind of industrial activities. As a consequence, the waters near many Californian urban areas tend to be over-fished and tend to have greater concentrations of pollutants. In California, mercury and poly-chlorinated biphenyls (PCBs) accumulate in fresh-water fish and are consumed by anyone who eats fish in or near the Central Valley Delta or San Francisco Bay.

In 2005, there were at least 170,000 annually-licensed anglers in the Delta region and another 120,000 in the Bay Area.[2] Many of these licensed anglers and the tens of thousands of un-licensed anglers (California Department of Fish and Game staff, personal observation) are immigrants, or people of color from the United States. Many are also poor. For them, fishing can be a cultural or economic imperative, providing a traditional and cheap source of high-quality protein. Recent studies[3] show that there are subsistence fishing communities in the Delta region with high rates of fish consumption. For recently arrived Southeast Asian immigrants, rates of fish consumption are essentially identical to rates in their countries of origin.[4]

Until recently, angling in the Delta and San Francisco regions was considered to be a recreational activity. This characterization may have led to a fairly slow response from state and federal agencies to regulate and clean up discharges of mercury and other pollutants in the Delta watershed. Newer studies have shown that at least half of many Southeast Asian ethnicities and large fractions of other ethnicities (including Slavic immigrants) are eating fish almost every other day.[5] Because of the degree of contamination of the targeted fish, these rates of consumption equate to high rates of intake of mercury and possibly other toxic chemicals that are known to bioaccumulate in fish and have been found in the region. Although state and federal agencies are beginning to respond to this situation, the timeframe is such that a whole generation of subsistence fishing families have already been exposed to harmful amounts of mercury and other poisons.

Most studies to date and most agency assumptions have been built around a model of occasional recreational fishing by mostly-white anglers who can afford boats. Problem solving has occurred through traditional agency-dominated decision-making pathways. This narrow focus and exclusive process left out the very communities and knowledgeable actors involved in subsistence fishing. Recent scientific surveying and community scientific knowledge have expanded this restricted characterization of the problem, revealing the extent and nature of mercury exposure among many ethnicities and economic classes. The highest exposure is among Southeast Asian immigrants, many of whom live in the poorer parts of Sacramento and Stockton.[6] Differential exposure to toxins like mercury results in health impacts for certain groups and is the first part of this environmental justice problem.

II. Differential Involvement by Groups Impacted by Fish Contamination

Environmental justice is more than just avoiding harm to certain communities because of economics, race, or other reasons. It is also fundamentally about including all affected parties in developing knowledge and decision making for environmental problems. Historically and in almost all contemporary environmental decision making, the role of non-white, poor, or non-technical parties has been marginal or non-existent. At best, members of communities impacted by environmental problems are asked for “input,” usually late in a decision-making process. In the Delta and San Francisco Bay regions, the CALFED (literally California-Federal) and Delta Vision processes have functioned over the last 15 years and 3 years, respectively, to ostensibly include a broad range of ideas about how to share the Delta and Bay. The processes have by and large excluded most of the traditionally disenfranchised communities.[7]

For example, the state has developed fish consumption advisories for waterways known to contain contaminated fish. Recently these have been developed in the languages of the anglers. While it is assumed that by telling people about potential harm from eating fish, they will change that behavior, there are several problems with this idea: 1) not everyone reading the sign will believe the information or change their behavior in response,[8] 2) few people read the signs,[9] and 3) when they do, they think it is referring to that exact spot and not necessarily nearby spots on the same river.[10] However, recent collaboration between community groups knowledgeable about fishing activities and their client communities is leading to improved communication through advisories.

Many environmental justice issues revolve around geographic, chemical, industrial, or biological processes, or a combination of these processes. It often does not occur to parochial agencies and staff studying or regulating these processes or their effects to ask for direction or advice from community organizations in the affected communities. Although there are well-meaning staff in state and federal agencies, historically a combination of cultural arrogance and ignorance in the agencies has developed a legacy of doubt and distrust among communities toward agencies charged with protecting their health. This attitude is usually expressed as making decisions in the absence of input from those impacted by the decisions. In response, some communities, organizations, and sovereign entities have developed their own science outside agency-led processes, or have successfully invaded the closed rooms where technocrats meet. Community science, both in terms of practice and knowledge, has evolved to the point where agency exclusion of representatives from impacted communities has more to do with fear of what these communities have to say than the inability of the parties to communicate with each other. This practice of exclusion persists, however, and is practiced by many in science and policy on family farmers in the Delta, African American air quality activists in Oakland, clean drinking water advocates in the San Joaquin Valley, native anglers in Clear Lake, and many other groups.

III. Fishing for Just Policies

Cleaning up the contaminated common wealth of fish in the Delta and Bay is symbolic of remedying many of the environmental problems facing California and its communities. Cleaning up fish and water in California often relies on the federal Clean Water Act (CWA) and the state Porter-Cologne Act. These laws require action by state and other agencies and private entities to return waterways to a level of cleanliness where human and wildlife health is not harmed. Although these tools were designed for the heavy lifting of cleaning up all waterways by the 1980’s, in the case of the CWA, their effectiveness unraveled because of weak or non-existent implementation. In addition, these laws were not designed for environmental justice work or even for significant protection of natural system functioning. Fundamentally lacking are effective policy and legal tools to protect common wealth and communities as if they really mattered. I can’t remember how many times I have been told directly or indirectly that there is no legal requirement to protect fishing communities at the subsistence rates they were eating fish, or that there is not enough money to clean up the various sources of mercury and other contaminants, or that there is not enough political will to take on the refineries polluting the air and water in the East Bay, the agricultural operations discharging pesticides and nutrients into the Central Valley waterways, or the water interests diverting water for urban and agricultural uses. We have the science, the knowledge, and the health impacts that are the fuel for environmental justice action. What we lack are the right tools for the job and the political will to use the tools at hand.

Ultimately, my talk was and this paper is a plea for help from those interested in ecological law. Using a case study like fishing for justice in the Delta is one way to illustrate the current inadequacies of environmental and community protection. I provide below two very important pathways for helping with restoring our common wealth of healthy fish for eating and other enjoyment.

One pathway is to help community organizations practice science, law, and policy in the context of the state and federal clean water acts. Practicing an effective combination and integration of science, law, and policy requires working knowledge of the tools available and assistance and motivation to use them in hearing rooms, courtrooms, and legislative offices. This integrated practice will allow these laws to be pushed as far as they can to protect those facing disproportionate harm and disparities in both health and decision-making power. If we cannot protect the health of disenfranchised communities in the Delta and the Bay and protect their involvement in decision making, then environmental law has failed a critical litmus test—its applicability to environmental justice and the protection of the common wealth.

A second pathway for helping community organizations is to develop new policies and statutes that clarify the steps, responsible parties, involved parties, and penalties for inaction for protecting the common wealth and communities. Many would say that we have sufficient legal protection for the environment and for public health, even among disenfranchised communities. However, the actual application of the law and the lack of adherence to environmental justice principles in the absence of statutory protection[11] belies this assertion. For example, in the case of the state’s cleanup planning for mercury in the Delta under the state and federal clean water acts, the lead agency uses low rates of fish consumption from other regions to develop cleanup requirements,[12] despite evidence of higher regional rates to the contrary.[13] Using the higher fish consumption rates found among subsistence immigrant communities would result in heavier regulatory burdens on agricultural, urban, and water managing entities. In the days of “stakeholder process,” these potential burdens are considered untenable, despite their apparent legality.

What would a new “common wealth for communities” policy look like? There have been many articles in this journal alone and talks given at Berkeley Law-sponsored events that provide some clues. The litmus test for the policy would be that it recognizes that the common wealth emerging from healthy communities and environments should be available for all to enjoy and not for anyone to concentrate into material wealth. In many ways, this is similar to Ecuador recently granting constitutional rights to nature, except that the idea of common wealth may be more utilitarian. One upcoming home for this way of thinking is in the new California Constitution that is under consideration. Under Article 1, Declaration of Rights, a new section could be added (Sec. 32) declaring the right of a healthily-functioning nature to exist for its own sake and the continuing right of the public to enjoy the common wealth of healthily-functioning nature untrammeled by private activity or gain. Opportunities like these do not come very often and there are no legitimate reasons why the various inadequacies in California’s resource and health protection policies and practices cannot begin to be addressed in the state’s Constitution.

For the day-to-day practice of community and environmental protection, some new and practical tools will still be needed. The state of science and legal practice suggest that two main types of statutes are needed. One is a state environmental justice statute that can be a model for the United States. This would be based on the environmental justice principles of resolving disparate impacts and other inequities. It would also open all environmental and health studies and decision making to involvement by the disenfranchised communities that have a stake in these studies and decision making processes. Many environmental justice advocates have already articulated this need, but governmental action is lacking. The other statutory area is protection of the common wealth of nature. This would involve a reprise of some aspects of environmental law, but ideally would be couched in giving rights and protection to nature for both its own sake and for future human generations.

Justice for the environment and for all communities and people will not be freely handed over; instead, it must be aggressively extracted from our legal and political systems with both existing and new tools.

Copyright 2009 The Regents of the University of California. All rights reserved.

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