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Environmental Justice As Spatial and Scalar Justice: a Regional Waste Facility Or a Local Rubbish Dump out of Place?

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Environmental Justice As Spatial and Scalar Justice: a Regional Waste Facility Or a Local Rubbish Dump out of Place? Environmental Justice as Spatial and Scalar Justice: A Regional Waste Facility or a Local Rubbish Dump out of Place? Brad Jessup* This paper explains and explores how a controver- opposing the development. It allowed centralized deci- sial waste development in the rural town of Molong, sion making to disregard the environmental effects of Australia was approved under the maligned, and since the project that were acknowledged by the NSW Land repealed, Part 3A of the New South Wales (“NSW”) and Environment Court in the case Hub Action Group Environmental Planning and Assessment Act 1979. v. Minister for Planning. It illustrates the entrenched It adopts a legal geography approach to demonstrate power imbalance in state-significant development laws. how the activation of the planning law both dramati- The inquiry uncovers spatial and scalar injustices, which cally shifted political and legal power from the com- are presented as being a component of the concept of munity to the government and proponent, and altered environmental justice, with that concept reinterpreted the scale of environmental concern from the local to the in light of recent scholarship that rethinks the meaning regional. The law, and in particular, the imposed geo- of space. In this respect the paper extends the boundary graphic scale, undermined the argumentative position, of, and the community for, environmental justice. place creation and imagination of the community group Cet article explique et explore comment un projet con- groupe communautaire qui s’opposait au développement. troversé de gestion des déchets dans le village rural de Elle permet au processus décisionnel centralisé de négliger Molong, en Australie, a été approuvé sous la critiquée les impacts environnementaux du projet reconnu par –et maintenant abrogée– Partie 3A de l’Environmental la Cour pour la terre et l’environnement de Nouvelle- Planning and Assessment Act 1979 de la Nouvelle- Galles du Sud dans la décision Hub Action Group v Galles du Sud. Il adopte l’approche de la géographie Minister for Planning. Cela illustre le déséquilibre des juridique pour montrer de quelle manière la mise en pouvoirs inhérent aux lois sur l’aménagement territorial place de la loi sur l’aménagement du territoire a radi- déterminantes pour l’État. Cette étude révèle les injus- calement transféré le pouvoir politique et juridique –de tices spatiales et scalaires qui sont présentées en tant que la communauté vers le gouvernement et le promoteur– composantes du concept de justice environnementale. Ce et a changé l’échelle de préoccupation environnementale concept, d’ailleurs, est lui-même réinterprété à la lumière –du local au régional. La loi, et plus particulièrement des récentes recherches académiques qui repensent la sig- l’échelle géographique imposée, a miné l’argumentaire nification de l’espace. À cet égard, l’essai étend les fron- ainsi que la place de la création et de l’imagination du tières, et la communauté, de la justice environnementale. * Lecturer, Melbourne Law School, The University of Melbourne, Vic 3010, Australia (brad.jessup@ unimelb.edu.au). The project analysed in this article and the drama it generated is one subject of a larger research project I am undertaking that explores concepts of environmental justice in Australian environ- mental laws. A version of this paper was first presented at the 2012 annual meeting of the Association of American Geographers in New York at a legal geographies panel convened by Melinda Harm Benson and Robyn Bartel. I am grateful to them for the opportunity to expose this work to an eminent audience. I am also thankful for the comments and suggestions offered by the referees who reviewed the paper, for the editorial assistance and encouragement of Melbourne Law School Research Assistant Clare McIlwraith, and the exceptional teamwork of the editors and assistants of this journal. Finally, thanks also to Alison Trowbridge and Peter Douglass for helping locate research materials held in libraries in rural Australia. 1. INTRODUCTION 71 2. ENVIRONMENTAL JUSTICE, SPATIAL JUSTICE, AND SCALAR 75 JUSTICE 3. THE ORANGE WASTE PROJECT AND ITS OBJECTIONS 80 4. COMMENT ON METHOD—A FORM OF NOMOSPHERIC 83 INVESTIGATION 5. MOLONG AND ORANGE 85 6. THE COURT CASE AS A NOMIC DISTURBANCE 87 7. A SHORT-LIVED EQUALIZATION OF POWER AND 90 CONSIDERATION OF THE LOCAL SCALE 8. PART 3A AND THE NORMALIZATION OF THE POWER 92 IMBALANCE 9. ORANGE’S APPLICATION UNDER PART 3A 96 10. THE PRIORITIZATION OF THE ‘REGIONAL’ SETTING 97 11. A REGIONAL PROJECT? 102 12. CONCLUSION 105 Jessup Volume 9: Issue 2 71 1. INTRODUCTION he administrators of the Orange City Council, the municipal government of the city of Orange in rural New South Wales, Australia, had been searching for a new “waste solution” since the mid-1990s.1 The former mayor of neighbouring Cabonne Shire T(“Cabonne”) recalls unsuccessfully trying to find a new landfill site for that municipality since the 1980s.2 Both councils had worked out how much landfill space they had remaining, and the figures calculated were sobering. Orange would need more rubbish capacity within two decades and Cabonne even sooner.3 It became obvious for both councils that the most efficient, convenient, and potentially less contentious option was to work together. In 2000, following initial inquiries, they formally decided that they would devise a “regional” solution to their respective problems, the Hub, referred to in this article as the Orange Waste Project.4 1 Orange City Council, "The Hub: Sorting the Facts From the Rubbish", Advertisement, Central Western Daily (Orange) (8 July 2006). 2 John Farr, "Mayor replies to waste facility protesters", Letter to the Editor, Molong Express (27 March 2002); Mark Filmer, "Ratepayers 'deceived'", Central Western Daily (Orange) (17 June 2005). 3 Orange City Council, Environmental Impact Statement—Hub Regional Resource Reprocessing Facility: Euchareena Road, via Molong, Summary (Orange: RW Corkery & Co, April 2005) at 2-3 [Orange City Council, EIS]. 4 Orange City Council & Cabonne Council, Reprocessing Hub Resource Farm: Part of the NetWaste Group (June 2000) [brochure]. See also Ian Gosper, "No community meeting on Hub", Central Western Daily (Orange) (27 July 2006). 72 JSDLP - RDPDD Jessup Both councils would have been aware that landfill proposals generate opposition; often some of the most intense local opposition to land use proposals.5 The oft-repeated and dismis- sive response to such opposition tends to be that no one wants to live near a dump,6 but that they have “to go somewhere.”7 One local environmental group, in a quandary over which side to support, acknowledged that landfills are necessary in a society encouraged to consume and that readily disposes of much that it accumulates.8 With this thinking, armoury of argument, and at least complicit support of those established groups most likely to oppose any develop- ment, logic suggested that one landfill for the wider region—when the alternative might be two—ought to be easier to have approved. Planning and environmental assessment laws, specifically the NSWEnvironmental Planning and Assessment Act 1979 (the “EPAA 1979”),9 would regulate the design, evalua- tion, and approval decision for the project. Throughout the assessment of the project, this law would change in a way that would alter the scale of the project and the places created by and in response to the proposed development, consequently generating moments of perceived injustice. The project that the councils developed went through various iterations and changes leading up to its final and unchallenged approval under the widely despised and since repealed Part 3A of the EPAA 1979.10 In 2005, this part of the act was introduced into New South Wales’ primary planning and environmental assessment law, as part of an ongoing co-oper- ative effort on the part of Australian state-level governments to provide a common, certain, 5 Paul Strango, No Toxic Dump: A Triumph for Grassroots Democracy and Environmental Justice (Annandale, NSW: Pluto Press, 2001) (reflecting on the community opposition to a landfill in Werribee, Australia); Iosif Botetzagias & John Karamichas, "Grassroots Mobilisations Against Waste Disposal Sites in Greece" (2009) 18:6 Environmental Politics 939; Louise Gallagher, Susana Ferreira & Frank Convery, "Host Community Attitudes Towards Solid Waste Landfill Infrastructure: Comprehension Before Compensation" (2008) 51:2 Journal of Environmental Planning and Management 233; Kin Che Lam & Lai Yan Woo, "Public Perception of Locally Unwanted Facilities in Hong Kong: Implications for Conflict Resolution" (2009) 14:9 Local Environment 851. Contemporary scholarship, notably from Europe, also focuses on opposition to, and conflict arising from, proposals for waste incineration sites. See e.g. Darren McCauley, "Wasting Energy? Campaigns Against Waste-to-Energy Sites in France" (2009) 18:6 Environmental Politics 917; Anna R Davies, "Incineration Politics and the Geographies of Waste Governance: A Burning Issue for Ireland?" (2005) 23:3 Environment and Planning C: Government and Policy 375. 6 "The Editor’s Viewpoint", Editorial, Molong Express (27 April 2005). 7 Susan Owens, "Siting, Sustainable Development and Social Priorities" (2004) 7:2 Journal of Risk Research 101 at 103. 8 Neil Jones & Stephen Nugent, "ECCO Orange Clarifies Position", Letter to Editor, Central Western Daily (Orange) (28 August 2006). Tellingly for the conflict explored in this paper, Christopher Rootes notes that "[t]he
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