Published on: 4th December 2025
Authored by: Wendy Maru Sehlaga
University of Johannesburg
Abstract
We live in a world that is ruled and controlled by different legal systems. In many parts of the world, the states implement different laws in order to protect people’s rights, ensure justice, equality and maintain fairness within the communities. Do the legal systems apply the laws fairly within the communities? What happens in situations where the law fails to uphold fairness, justice and protection of people’s rights? Despite the advancements and the implementation of laws in most countries, marginalized communities continue to experience environmental harm. This article examines the role of both national and international legal systems in the lives of the marginalized communities from disproportionate environmental harm. Thereby, highlighting the existing challenges in the marginalized communities, law enforcement and accessibility while advocating for fair, equally inclusive laws in order to ensure equitable environment and health protection for all. This article presents an analysis of environmental justice and the law on the protection of the marginalized communities from environmental harm.
Introduction: Understanding Environmental Justice, Environmental Harm and Marginalized Communities.
Environmental justice refers to a social movement that ensures that there is fair treatment and equal meaningful involvement of everyone regardless of their background, gender, origin, race or even status with respect to the environmental legislations, policies and regulations. The environmental justice seeks to ensure that everyone has equal protection from the environmental hazards and access to a healthy environment. This helps to eliminate the unfair discrimination and inequality within the societies. Environmental harm refers to the damage made to the environment or natural world which causes degradation. It usually results from human activity. Examples include climate change, pollution, toxic waste and deforestation which result to various negative outcomes and environmental hazards. The environment becomes unhealthy and poses health complications or risks to individuals such as respiratory illnesses, cancer or asthma. The marginalized communities are groups of individuals that are unfairly excluded and discriminated from fair and equal social, economic and political access. For example, groups of marginalized people include black Africans, individuals living with disabilities, women, low-income individuals, coloureds and Indians. The principle of environmental justice seeks to rectify historical injustices of the legal framework. The systemic barriers and the judicial interpretations limit effective protection of marginalized communities. The marginalized groups experience disproportionate environmental justice. The marginalized communities face socio-economic discrimination and differences despite the existence of constitutional protections.
Environmental differences between marginalized communities and privileged communities:
Marginalized communities are usually characterized by socioeconomic disadvantages. They experience the failures of a legal system which affects the environment and poses health risks to their lives. They face the disproportionate environmental hazards such as the pollution, contaminated water and toxic waste. They have poor environmental quality and health. Marginalized communities are usually situated near industries, companies or landfills especially in developing areas. Marginalized communities are excluded from decision making. These communities lack political power to go against any industrial activities that are risky or harmful near their residential area. Marginalized communities are usually situated at poor and under resourced environments such as informal settlements or low-income neighbourhoods. On the other hand, privileged communities are highly advantaged by the law. They usually have access to fair and equal justice with minimal exposure to environmental injustices and are better defended against environmental risks. They have good environmental quality and health. They can be able to exercise their rights and have political power to oppose risky or unwanted industrial activities at their residential area. They live in safe, healthy and well-resourced environments such as the suburbs. They are usually located far from industrial zones, polluted areas and landfills.
International Comparative Analysis:
The South African Constitution under section 24 (a) and (b) establishes the right to a healthy environment for everyone and future generations.[1] This constitutional provision guarantees everyone the right to an environment that is not harmful to their well-being or health. The right encompasses the protection of the environment with measures such as preventing pollution, ecological degradation, promoting justifiable economic and social development. The state, businesses, companies and communities has to fulfil an obligation to protect the environment and effective measures to give effects the environmental rights. In South Africa, the National Environmental Management Act (NEMA) provides for co-operative environmental governance.[2] This Acts seeks to ensure that the environmental considerations are integrated into the daily lives of the individuals within the societies. India enacted Environment Protection Act, [3] in response to the 1984 Bhopal gas tragedy which was a chemical leak that happened in the Indian city of Bhopal resulting in high death rate and environmental hazards.[4] This Act provides a legal framework for environmental protection and prevention of environmental pollution. The Act was enacted to allow the Central Government to establish legal authorities to prevent pollution and address the environmental issues. The Act provides a legal framework to maintain the healthy environmental standards and effective management of hazardous chemicals. The Act further includes provisions for public involvement and participation in environmental decision-making. This is a legal measure to protect and improve the environment preventing the pollution and encouraging sustainable development. Similarly to India, The United States passed Emergency Planning and Community Right-to-know Act (EPCRA) also known as SARA Title III. This supports the environmental justice, the rights of communities including the marginalized communities and provides environmental information. [5]This Act gives information about toxic and hazardous chemicals within their communities and to facilitate emergency planning for chemical emergencies. It requires facilities to report hazardous and toxic chemicals and assist the communities to develop emergency response plans. This is a development and advancement of a country to ensure the preservation of the natural, healthy and safe environment. The main purpose of the Act is to address the safety and environmental concerns which are related to the handling and the storage of toxic chemicals. The public is informed about the chemicals which are existing in their communities which emphasizes proactive emergency planning. In Brazil, Rio de Janeiro, an international declaration was adopted in 1992 Earth Summit (United Nations on Environment and Development). It consists of 27 principles which aims to uphold global ecological health. For instance, Principle 1 states that all human beings are at the center of concerns for sustainable development. Therefore, they are entitled to a healthy and productive life in harmony with nature. The Rio Declaration recognizes and promotes the right to a healthy environment for everyone. In Nigeria, a landmark case of COPW v NNPC highlights the roles of the legal systems in environmental protection.[6] This case allowed non-governmental organizations, public individuals and interest litigation to act on behalf of the public in order to protect the environment. The Court reaffirmed the right to a healthy environment (s 20) which is guaranteed by the Constitution.[7] The African Charter on Human and People’s Rights grants authority to the NGOs to demand compliance with the environmental laws and remediation. This can be used when the government agencies fail to act fairly and impartially. This case highlighted an important progress towards ensuring environmental justice and public involvement in environmental cases.
Challenges of the Marginalized Communities in realizing Environmental Justice:
Despite the implemented legal frameworks and constitutional provisions, marginalized communities continue to face disproportionate environmental justice. As much as environmental justice aims to ensure that everyone lives in a healthy environment, have fair treatment, equitable involvement and access to a healthy environment. Marginalized individuals still struggle to access fair treatment, meaningful involvement, equitable access and right to a healthy environment. There is an unequal access to information within the different communities. Marginalized communities do not get enough, timely, clear and relevant information about the environmental hazards. This results in negative consequences for the marginalized communities. For instance, the Cancer Alley in Louisiana, USA which is an approximately 85-mile stretch along the Mississippi River from Baton Rouge and New Orleans. The name ‘Cancer Alley’ comes from the high risk possibility of the area’s residents developing cancer due to the concentration of the industrial facilities nearby their residence. The marginalized communities living between Baton Rouge and New Orleans area are negatively affected as they have suffered the health complications related to respiratory illnesses and high rates of cancer such as lung cancer.[8]
The limited access to information prevents the residents from being aware of the situation they are facing, what may be the consequences and how to protect themselves from the possible side effects. In many instances, the communities end up facing the environmental injustices due to lack of adequate warnings about the exposure risks and lack of protection alternatives. Most of the communities in many parts of the world continue to experience disproportionate exposure to pollution, toxic and hazardous chemicals in the environments they occupy. At times the marginalized communities cannot afford to relocate due to lack of money or unemployment. Therefore, they decide to stay even though it is risky. The challenges faced by the marginalized communities highlight the legal systemic failures on how the current existing environmental laws are enforced, structured and interpreted to the public.
Recommendations and Solutions:
To achieve environmental justice is not likely to happen but it is possible. Alternative solutions and actions that can be taken by countries includes developing legal measures to minimize disproportionate environmental justice within the marginalized communities. This can be done through raising awareness of the importance of environmental justice and sustainability within the communities. This will help to educate all individuals within societies. They will attain all necessary knowledge about environmental justice. The marginalized communities need to have adequate access to information. They need to access information about the industrial activities, industrial accidents like chemical leaks, protection measures, toxic chemicals, environmental risks and regulations. This will alert citizens on the preventative and effective plans to avoid the negative impacts of disproportionate environmental justice. The marginalized communities should be involved in the policy-making and environmental assessments. Their concerns should not be ignored. It can be about land use, pollution control, protection measures and risks. Marginalized communities should not be excluded from the regulatory meetings. They have to know about the general discussions, risks mitigation, get guidance and clarity. In marginalized communities there is weak enforcement and application of environmental laws. The legal system should not favour companies or corporations over communities. The state of the countries must ensure an impartial strict interpretation and enforcement of the constitutional provisions within their countries. The states need to fulfil their obligations while upholding the constitutional legal frameworks in order to ensure environmental justice. This will help to reduce corruption and systemic barriers that promote disproportionate environmental justice. The government and states can implement and develop safety regulations, monitoring, health impact assessments and reduction of toxic emissions. This will assist in ensuring that the health of the environment and all communities is equally prioritized. Use of difficult and technical language full of jargons in the rules, regulations or even warnings might cause confusion and misinterpretation of the information to the residents. Therefore, the rules, regulations and warnings should be written in simple language so that everyone understands the information and can fully assert their rights.
Conclusion:
In conclusion, environmental justice remains unfulfilled under the legal framework. This calls for a necessary shift within the legal systems and communities. All communities must benefit from the law equally. The real blindness is not only in inequality, systemic neglect, injustices or environment but in the moral blindness that promotes environmental injustices to continue.
[1] Constitution of The Republic of South Africa 1996
[2] The National Environmental Management Act 107 of 1998
[3] Environment Protection Act 1986
[4] Edward Broughton, ‘The Bhopal disaster and its aftermath: a review-PMC’ (10 May 2005) <http://www.ehjournal.net/content/4/1/6 >accessed 11 October 2025
[5] The Emergency Planning and Community Right-to-Know Act of 1986
[6] Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation [2019] 5 NWLR 518.
[7] Constitution of the Federal Republic of Nigeria 1999
[8] The Biden White House, ‘Environmental Protection Agency: Journey to Justice : The Road Ahead ’ (3 January 2025) <https://youtu.be/CYIK_JgTzBg?si=D0RU4fgzigWMpStq >accessed 11 October 2025
