Disparate Impact And Ecosystem Services As Tools For Community Activism.

• Date: 22 June 2022
• Author: Krishna, Dhruva

TABLE OF CONTENTS INTRODUCTION I. DISPARATE IMPACT AND ENVIRONMENTAL JUSTICE: A BRIEF OVERVIEW A. Disparate Impact--Historical Context and Environmental Justice Intersections B. Disparate Impact Weakened, But Advocates Find New Life for the Framework II. ECOSYSTEM SERVICES: BENEFITS, CHALLENGES, AND THE NEED FOR MORE INFORMATION A. What Are Ecosystem Services? B. Challenges to Ecosystem Services C. Answering the Challenge: A Need for Data, Studies, and Application III. INCORPORATING THE ECOSYSTEM SERVICES FRAMEWORK WITHIN THE DISPARATE IMPACT FRAMEWORK A. Ecosystem Services Analyses Within a Disparate Impact Framework 1. How Should Ecosystem Services Analyses Be Conducted? 2. How to Use Ecosystem Services Analyses Within Disparate Impact Frameworks a. Disparate Impact Element One b. Disparate Impact Element Three B. The Benefits of Combining Disparate Impact and Ecosystem Services IV. HYPOTHETICAL: USING THE COMBINED FRAMEWORK WITH A PROPOSED DEVELOPMENT A. Los Diablos County, Griffin Park, and a New Development Plan B. Methodology: Collecting Ecosystem Services Analyses C. Using Ecosystem Services Analyses in a Disparate Impact Argument D. Weaknesses Of This Combined Framework CONCLUSION INTRODUCTION

In 1930, the Olmsted-Bartholomew Plan laid out an ambitious environmental vision for Los Angeles. (1) The drafters envisioned a region with over 71,000 acres of parkland, joint use of school grounds and forests, and a near doubling of public beach frontage. (2) Noting the region's lack of open space, the report outlined a "remarkably detailed plan for creating new parks, parkways and untouchable 'reservations.'" (3) However, Los Angeles has developed into a city with unequal access to natural ecosystems. (4)

This pattern of unequal access to natural ecosystems has become a focal point in the environmental justice movement, specifically as it pertains to disparate impact. Part I will briefly discuss the disparate impact framework. Despite starting as a civil rights doctrine, this framework has a long history within larger environmental justice movements. However, judicial decisions and bureaucratic inefficiencies have weakened the disparate impact framework. Yet the disparate impact framework has found new life within community advocacy, specifically as an argumentative framework to highlight inequitable environmental treatment.

Part II will introduce the ecosystems services framework. The ecosystem services framework asserts that ecosystems provide economic and health benefits for communities. However, this framework faces challenges with value recognition and visibility, lack of implementation within existing institutional frameworks, and inequitable access. To address these challenges, scholars have noted the need for more substantive studies, data, and application.

This Article explicitly combines the disparate impact and ecosystem services frameworks to strengthen each other. Part III will introduce how using these two frameworks in unison can help communities facing inequitable natural resource and ecosystem access. The concept of ecosystem services could be utilized within a disparate impact analysis to help communities better protect and access ecosystem services. Specifically, including ecosystem services evidence could strengthen disparate impact claims, especially element one, establishing disparity, and element three, alternative practices. Communities employing these analyses will strengthen the ecosystem services framework by providing data and application.

Part IV of this Article concludes with a hypothetical involving the development of a car factory that impacts various communities and ecosystems. This hypothetical demonstrates how this combined framework could be used in practice. In addition, it exemplifies the strengths and weaknesses of this combined framework.

1. DISPARATE IMPACT AND ENVIRONMENTAL JUSTICE: A BRIEF OVERVIEW

   Beginning as a civil rights doctrine, the disparate impact framework has intersected with environmental justice movements. Despite early victories, the disparate impact framework has been increasingly weakened in the environmental justice space. However, the doctrine has found new life as a framework for raising and analyzing concerns about inequitable environmental treatment.

   1. Disparate Impact--Historical Context and Environmental Justice Intersections

      The key legislative background for disparate impact is Title VI of the Civil Rights Act of 1964. (5) Title VI was enacted "pursuant to the Fourteenth Amendment and the Spending Clause" to state that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." (6) Title VI also directed federal agencies to "implement this prohibition by regulations that do not conflict with the statute." (7)

      Although intentional discrimination was banned, the disparate impact doctrine developed as a method of attacking facially neutral practices. (8) Over several years, the applicability of Title VI to assert disparate impact claims was debated. (9) Ultimately, in Alexander v. Choate, the Supreme Court affirmed and upheld that disparate impact claims exist under Title VI. (10) Specifically, federal agencies can "prohibit unintentional discriminatory effects by adopting a disparate impact standard" in their Title VI regulations. (11)

      Generally, there are three elements to state a disparate impact claim. (12) First, the plaintiff must "demonstrate by a preponderance of the evidence that a facially neutral practice has a disproportionate adverse effect on a group protected by Title VI." (13) Second, if the plaintiff can make that showing, the burden shifts to the defendant, who "must prove that there exists a substantial legitimate justification for the challenged practice, in order to avoid liability." (14) If the defendant meets this burden, then "the plaintiff will still prevail if they are able to show that there exists a comparably effective alternative practice which would result in less disproportionality, or that the defendant's proffered justification is a pretext for discrimination." (15) As discussed in Part III, each of these elements has their own requirements that have been established through case-law and application. (16)

      Over the past thirty years, environmental justice advocates have used the doctrine of disparate impact. Environmental justice may be defined as "the pursuit of fairness in environmental and land-use policies, especially fair treatment of all races, ethnic groups, and socioeconomic classes." (17) Rather than being a movement with "precise boundaries" or even having "a precise definition," environmental justice intersects with political activism, civil rights, constitutional law, and environmental law. (18) As a result, environmental justice often has a broad scope. Environmental justice generally encompasses key principles of protection, inclusion, and education about natural resources, the environment, and oppressed communities. (19)

      Leveraging the doctrine of disparate impact has long been recognized as a way to achieve environmental justice's mission. Perhaps the most explicit recognition was Executive Order 12898 on Environmental Justice, issued in 1994. (20) The executive order required each federal agency to "make achieving environmental justice part of its mission by identifying and addressing ... disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." (21) In the order's accompanying memorandum, Title VI was identified as a law that can "be applied to prevent these communities from being subject to discriminatory effects." (22) More explicitly, because Executive Order 12898 "applies to Federal agency actions," "Title VI is one of the tools used by Federal agencies to implement this directive." (23) Although the executive order did not "create[] any new law or change[] existing law," federal agencies have implemented its policy. (24) Many agencies now have their own disparate impact procedures, offices, and processes to address environmental disparate impact. (25) In turn, the disparate impact doctrine was used to address inequitable environmental impacts. One case was Chester Residents, which was brought in 1996. (26) A group of residents filed suit over Pennsylvania's permitting of a processing facility in a predominantly Black community. (27) Although the permits were ultimately withdrawn, the Third Circuit found that the plaintiffs had a private right of action to sue under the Environmental Protection Agency's (EPA) disparate impact regulations. (28)

      Another victory was South Camden Citizens in Action v. New Jersey Department of Environmental Protection (South Camden I). (29) The complaint arose when the New Jersey Department of Environmental Protection granted a Clean Air Act permit to a cement company in an overwhelmingly minority community. (30) Ninety-one percent of the community's residents were minorities, predominantly African American, and over half lived at or below the federal poverty line. (31) When the permit was granted, there were several existing industrial sites in the neighborhood that were already causing negative health impacts. (32) The plaintiff presented evidence that including the new site would "increase the overall death rate, among other deleterious health effects, by at least 1.2 percent, and among individuals already suffering from cardiovascular and respiratory disease, by at least 1.6 percent." (33)

      Ultimately, the District Court issued a preliminary injunction, which prevented construction of the cement plant and vacated the permit issuance. (34) In doing so, the court found that New Jersey's Department of Environmental Protection failed to consider...