Although the environmental justice movement has documented the racial inequities that determine resource distribution, land policies and health outcomes in the U.S., the legacy of exclusionary housing and zoning policies largely remains unaddressed, writes a University of Iowa law professor Shannon Roesler.
In her paper, “Racial Segregation and Environmental Justice,” published in the Environmental Law Reporter, Roesler wrote that policies addressing racial discrimination “fail to provide remedies for structural inequalities.”
“By drawing attention to the spaces where people ‘live, work, and play,’ the [environmental justice] movement exposed how environmental laws and policies fail to protect low-income, minority, and tribal communities from the health effects of air pollution and land contamination, just as they fail to provide basic public goods such as clean drinking water, green space, and safe housing,” Roesler wrote.
To illustrate her argument, Roesler focused on Richmond CA, a majority Black community in the San Francisco Bay area dominated by a Chevron refinery, where carcinogens linked to respiratory and neurological defects continue to sicken and shorten the life span of Richmond residents.
Richmond’s demographic profile and environmental dangers aren’t accidental, Roesler noted.
“The demographics of Richmond are not the result of chance or choice;” Roesler writes. “They are the result of a history of law and policy designed to exclude African Americans from middle-class residential housing.”
She continued: “By making race an explicit criterion in evaluating property values and assessing the risk of a home mortgage, the federal government legally isolated Black Americans in “less ideal, often industrial areas.”
Carved by exclusionary zoning ordinances, Jim Crow laws and racially restrictive covenants, Bay Area geography is deeply divided on racial lines. Environmental deterioration has accompanied these demographic changes.
In the mid-20th century, local councils used zoning designations to create “slums,” zoning industrial and toxic uses near existing Black neighborhoods.
In Richmond, the toxin-producing Chevron factory was founded in 1902, before the city’s founding date. Federal and local policies clustered Black families around this unsafe site, a legacy that has shortened the lifespan of Richmond’s non-white “fence-line” communities by 10 years, compared to white communities in other parts of the country, the paper asserted.
According to Roesler, laws designed to combat discrimination — from the Equal Protection Clause to the Fair Housing Act to Title VI — have failed to address structural racism.
“Our equality jurisprudence is ineffective in part because it often requires evidence that inequalities are caused by specific acts of intentional discrimination and because it adopts ideas of colorblindness and neutrality that limit the remedies political and judicial actors can offer,” she wrote.
For instance, housing subsidies must be available on a race-neutral basis, even if the government’s intent is to reduce racial segregation in housing. In short, many anti-discrimination laws fail to adequately remedy the harm of racial inequality.
For these reasons, Roesler argues that the Supreme Court and other legal authorities should replace the “colorblind interpretation of the Fourteenth Amendment with a more nuanced view of due process and equality.
One precedent could be the 2015 Supreme Court ruling in Obergefell v. Hodges, which essentially legalized same-sex marriage.
Writing for the majority in Obergefell, Justice Anthony Kennedy cited the concept of “equal dignity,” which draws upon both the due process and equal protection clauses.
“In his view, judicial recognition of a ‘fundamental’ right does not turn on rigid notions of tradition, but is instead an exercise in ‘reasoned [judicial] judgment,’” Roseler wrote, noting that by focusing on the unintended effects of a law or practice, the case may have opened the door to more sustained reforms.
“Instead of invalidating a remedy because it is not facially neutral, the antisubordination principle [from which the case drew] focuses the inquiry on whether the law or policy furthers the liberty interests of a historically subordinated group,” Roesler wrote.
“Moving forward, a robust anti-subordination theory of liberty and equality would recognize the importance of historical narratives that reflect the lived experiences of historically subordinated groups.”
To download the complete paper, please click here.
Eva Herscowitz is a TCR contributing writer.