Carmen Gonzalez on "Environmental Racism, American Exceptionalism and Cold War Human Rights"...

carmen gonzalez.jpg

Environmental Racism, American Exceptionalism, and Cold War Human Rights, 26 Journal of Transnational Law & Contemporary Problems 281 (2016-2017)

Carmen Gonzalez’ “Environmental Racism, American Exceptionalism, and Cold War Human Rights” packs a great deal into thirty-six pages.  I am woefully short on international human rights laws, but this work gets me up and running quickly, explaining why resort to international conventions has not produced material benefits for those seeking racial justice.  It’s focus on environmental racism comports very well with my economic conception of racism asymmetrical market imperfections, with the residents of Mossville, Louisiana, being an example of how black folks must endure a disproportionate amount of society’s transaction costs and harmful externalities. In this way, environmental racism is more than taxing, it is a tax.  Worse, tax subsidies were given to the polluters, further redistributing wealth from the poor to the elite.  Also, Professor Gonzalez reference to Cold War dynamics where prominent Black activists like Paul Robeson were caught up in the “Red Scare” provides a timely backdrop for Jeff Sessions and the Trump Administration re-invigoration of COINTELPRO against Black nationalists, or “Black Identity Extremists”. 

The economic impact and redistributive effect of environmental racism can be described in terms of asymmetrically distributed transaction costs and externalities.  In a perfectly free market, those who buy products also pay for the pollution they cause.  In the real world, pollution caused by commerce is distributed to those who can least avoid it.  In the United States, that tends to be poor black folks.  Professor Gonzalez writes, “The disproportionate siting of polluting facilities in the historically African-American community of Mossville is consistent with national and state patterns, whereby hazardous industrial facilities operate in close proximity to communities predominantly populated by people of color. This pattern is particularly evident in the state of Louisiana.”  As asymmetrically distributed transaction costs, they function hardly different than taxes in shifting the economic burdens of society onto Black people.

Worse, tax subsidies were given to the companies who pollute the Mossville area. “State officials lured industry to Mossville and other areas by exempting manufacturing facilities from property taxes for ten-year periods, which could be extended indefinitely by expanding the facility. This legislation turned Louisiana into a haven for polluting industries. Industries operating in Calcasieu Parish have taken full advantage of this generous tax break. Calcasieu Parish ranks second among the sixty-four Louisiana parishes for the highest number of industries receiving the ten-year industrial tax exemption.”

Despite the fact that the county in which Mossville sits is predominately white, the majority black town gets to house the industries with the harmful toxins.  It would be interesting to know the racial composition of the workforce at those chemical plants.  Surely, the tax subsidies were sold as a means to create jobs.  We know the black community of Mossville has to pick up a major part of the costs.  The last question is whether the redistribution of wealth was completed by the hiring of a predominately white work force?

Professor Gonzalez explains that the citizens of Mossville should be able to, but ultimately cannot, rely on federal courts in the United States to enforce international treaties that the U.S. has ratified, including ones that protect against racial discrimination.  She shows how prior to a case called Fuji most if not all treaties were considered “self-executing”, i.e., whether they operate with the force of law without acts of Congress.  But after Fuji, the opposite holds true, the federal courts except the United States from most human rights treaties it ratifies if Congress does not implement them with legislation.

“In Fuji v. California, a California appellate court struck down California's Alien Land Law because it discriminated against Japanese nationals in violation of the U.N. Charter's human rights provisions. The decision ignited a political firestorm. First, the court's ruling suggested that the U.N. Charter could be enforced in U.S. courts to invalidate conflicting state laws. Second, the decision implied that the United States might have abrogated the segregation laws of the southern states (and racially discriminatory laws in other states) in one fell swoop by ratifying the U.N. Charter. Third, by holding that the challenged legislation complied with U.S. equal protection law but violated the U.N. Charter, the decision made it apparent that international human rights law provided greater protection against racial discrimination than U.S. law, thereby casting doubt on American exceptionalism.”

“…Before World War II, the distinction between self-executing and non-self-executing treaties was rarely raised by the U.S. Supreme Court in cases involving the judicial application of treaties. After World War II, the U.S. government routinely deemed human rights treaties non-self-executing-- even though this practice has been widely criticized by legal scholars as inconsistent with the U.S. Constitution and contrary to the objects and purposes of the treaties.

…Despite the plain language of the U.S. Constitution that “all Treaties shall be the supreme Law of the Land,” courts were persuaded that non-self-executing treaties do not supersede conflicting state laws and are unenforceable in U.S. courts in the absence of implementing legislation. This reinterpretation of the treaty supremacy rule gives states carte blanche to violate non-self-executing treaties (such as the CERD) and immunizes these violations from judicial scrutiny.”

We should also pay special attention to the political climate of the 1950s when Fuji was decided, because there are striking similarities to today’s landscape.  Professor Gonzalez situates Fuji v. California and the beginning of American exceptionalism from human rights treaties within the Cold War between the United States and Soviet Union.  Popular lore invokes Malcolm X as being killed because he was the first to threaten to bring the case of African Americans before the United Nations.  However, Professor Gonzalez shows this not to be true.  Organizations like the NAACP and the Civil Rights Congress appealed to the UN in the 1940s and 1950s. 

Unfortunately, the backlash was swift and harsh.  “Many individuals, including Paul Robeson, W.E.B. DuBois, Louis Armstrong, and Josephine Baker, either had their passports confiscated or found they were under Federal Bureau of Investigation (FBI) surveillance. Even African-American diplomat Ralph Bunche, winner of the 1950 Nobel Peace Prize, was investigated and eventually exonerated of disloyalty to the United States. The NAACP, under United States government scrutiny for its human rights work, conducted a purge of suspected communists, rigged branch elections to oust left-leaning leaders, and shifted its strategy away from human rights advocacy at the U.N. and toward domestic civil rights litigation. Tragically, the stigmatization of human rights activism as anti-American, Soviet-inspired, and even treasonous would ultimately deprive the movement for racial equality of international human rights doctrines and institutions to address not only civil and political rights, but also economic, social, and cultural rights.”

Despite the deadly recent activities of avowed white supremacists, we saw that the United States Department of Justice is now applying special scrutiny to what it calls “Black Identity Extremists”.  This, among other things, is precisely what Coretta Scott King was afraid of when Jefferson Beauregard Sessions was nominated for the top law enforcement spot.  We have also recently seen that Russia influenced the 2016 election, in part by fanning the flames of racial tension, including competing memes and fake news ads on Facebook, some directly aimed at black activists.  So despite the fact that Russian interference was designed to help Donald Trump, and even though Jeff Sessions is on record for having met with the Russians, it seems that the neoconservative, alt-right, national socialist White House will use Russian election interference as an excuse to further harass and intimidate African Americans.

[I am of course no fan of the Central American street gang, MS-13, but Jeff Sessions announcing special scrutiny there strikes me similarly as pretext to harass and intimidate young latinos in America.]

- DreSmith