Environmental justice has been called one of the most important issues in the last two decades of environmental law. The federal government and virtually all states have developed legislative and regulatory structures aimed at alleviating the disproportionate risks of pollution currently being borne by low-income and minority communities. Yet, despite both the recognition of the deep unfairness of environmental Injustices and the large scale regulatory response, current environmental justice regulation has been severely criticized as ineffective. Partly in response to these criticisms, the Obama administration has announced new initiatives to strengthen regulation of environmental injustice at the federal level.

It is impossible to fully diagnose the many reasons for the failure of environmental justice regulation to reduce the burdens of development placed on low-income and minority communities. However, one notable cause of this failure is likely the significant additional costs of environmental risk reduction that would be placed on development in such communities. Existing locally unwanted land uses ("LULUs") in low-income and minority communities are already subject to environmental regulations, which generally require the use of cost-effective pollution protection technologies. Thus, efforts to decrease emissions below existing thresholds in environmental justice communities confront the relatively high marginal cost of even small reductions beyond what is already legally required.

In most cases, environmental laws do not require net decreases in pollution as a condition of permitting.5 Therefore, every time a new LULU or a modification of an existing LULU (together referred to as "new LULU") is permitted in an environmental justice community, the construction of that new LULU increases the aggregate amount of pollution borne by community members. Put simply, in almost every environmental justice community new LULUs are being permitted on a regular basis and each time a new LULU is permitted the aggregate amount of pollution borne by individual community members increases.

One reason for the perceived tolerance of this phenomenon is the fact that new LULUs carry with them not just burdens, but also benefits. These benefits include job opportunities, increased tax revenue, and increased demand for local businesses that may provide services to the new use. Pollution burdens are inextricably intertwined with the benefits of development. Thus, in cases where benefits outweigh burdens-that is, where development provides a net benefit-it may well be in the community's interest to allow for the development of a new LULU. Little effort, however, has been made to consider whether these perceived benefits actually accrue to members of environmental justice communities, and, if not, how regulators might respond to this problem.

This Article seeks to fill that gap. It first asserts that the perceived benefits of development often do not accrue to local residents. Rather, jobs generally go to workers in other communities, and other benefits are primarily received by economic and political elites. Having described a vision of benefits much different than what many may assume, the Article then considers a regulatory mechanism for ensuring that local community members receive the benefits of development.

In the process of describing this "reasonable benefit scheme," the Article also explains how a benefits-based regulatory regime may overcome the cost problem that currently hamstrings efforts to decrease the risks created by new LULUs in environmental justice communities. By defining the harm being done to communities as the creation of an increased risk, a benefits-based scheme would require a proportional response. For example, if a new LULU will increase the risk of death in a community of 50,000 people by 1 in 50,000 per year, the permit-seeker would be required to provide the community with a benefit of equal amount (saving one life per year). Because many environmental justice communities lack much public health infrastructure, the cost of providing the benefit would likely be much smaller than the cost of reducing pollution. For example, a permit-seeker might pay for a mobile clinic to visit the community a number of times per year, for a vaccination program, or for a lead abatement program that would save one life per year. Because the scheme does not focus on decreasing pollution as the basis for responding to environmental injustice and instead focuses on reducing risk, a benefit scheme may provide a more cost-effective mechanism for responding to the unequal harms done to such communities.

Part II of this article provides a brief overview of the problem of environmental injustice and the way in which the regulatory response to the problem thus far has been ineffective. Part III brings to bear on the environmental justice problem research that demonstrates the limited benefit new LULUs create for existing communities. Part IV considers how a requirement that industry provide reasonable community benefits could be implemented and how such a scheme would compare to other existing environmental justice solutions.