Variable Justice : Environmental Standards, Contaminated Fish, and 'Acceptable' Risk to Native Peoples

This article begins with the observation that “[f]ish, especially salmon, are necessary for the survival of the Native peoples of the Pacific Northwest, both as individuals and as a people.” It considers conventional approaches to regulating contamination of the waters that support the fish on which these peoples depend, and finds that the narrow focus on human physical health fails fully to comprehend the multiple dimensions of the harm to these fishing peoples. Importantly, this focus fails to appreciate the cultural dimensions of the harm. The article examines health and environmental agencies’ standard-setting practices and challenges their failure to account for Native Americans’ unique fish consumption practices. In the process, this piece questions the hegemony of quantitative risk assessment in agencies’ standard-setting efforts. It goes on to criticize the resulting standards and the justifications offered by agencies – and sanctioned by courts – for the “lower yet adequate” level of protection they afford Native American subpopulations relative to the general population. In so doing, it considers the role of science and judgment in environmental risk policy, explicating such technical concepts as “variability” and “uncertainty.” It clarifies that discussing degrees of "conservatism" makes sense only in connection with agencies' responses to uncertainty. In the case of responses to interindividual variability, it is not a matter of choosing among errors. Rather, it is a matter of deciding, with full knowledge, whom to protect. As such, these responses ought be discussed in terms of "protectiveness." Having laid this groundwork, the article argues for agencies’ differential treatment of Native American subpopulations from both a normative and doctrinal standpoint. Relevant normative commitments include respect for cultural integrity, equality and just process. Relevant legal obligations include treaties, the federal trust responsibility, and civil rights legislation. Finally, the article concludes with recommendations that agencies and tribes might consider, in consultation, as they engage in the process of environmental standard-setting