GREENING THE GREEN RUSH: HOW ADDRESSING THE ENVIRONMENTAL IMPACT OF CANNABIS LEGALIZATION CAN ENHANCE SOCIAL EQUITY AND REMEDIATE THE HARMS OF THE WAR ON DRUGS.

• Author: Garcia-Fuerte, Jose

INTRODUCTION 170 I. THE SOCIAL EQUITY PARADIGM 172 A. Industry Access 174 B. Criminal Records 175 C. Revenue Distribution 176 II. ENVIRONMENTAL ISSUES IN CANNABIS 177 A. Cultivation Practices and Environmental Harms 178 B. Energy Use 181 C. Water Use 182 D. Pesticide Use 184 E. Air Quality 186 F. Change in Surface Land 188 G. Water Pollution 189 H. State Responses 190 III. ENVIRONMENTAL JUSTICE 191 CONCLUSION 201 INTRODUCTION

Laws governing the cannabis plant continue to change. The 21st Century in particular has seen robust efforts to legalize the cannabis plant and its derivatives. This movement, often referred to as marijuana legalization, has challenged a prohibition-centered regime that went virtually unquestioned for most of the 20th Century. While any number of approaches to legalization are possible, a market-based approach is taking hold in the United States. This approach uses commercial markets like those in place for alcohol to govern the production, distribution, and consumption of cannabis. (1) While this has allowed cannabis to move from a prohibited drug to a regulated commodity, it has caused states to prioritize the commodification of the plant over dismantling the old infrastructure of prohibition or addressing the broader harms of the War on Drugs.

The recent push for social equity within the cannabis industry reflects frustration with the limitations of the "regulate it like alcohol" approach. (2) As we discuss elsewhere, social equity advocates argue that those most harmed by the War on Drugs should be the ones receiving the greatest benefit from legalization. (3) To date, the opposite has largely been true. Though poor people and people of color have disproportionately suffered under prohibition, it is those least likely to have been targeted-those who are wealthier and white--who have disproportionately benefited. (4) Wealthy white people disproportionately occupy the most powerful spaces in the legal cannabis industry, make the most money, and exert the most influence over how the industry continues to evolve. (5)

To change this dynamic, social equity advocates have argued for a suite of policies we call the "social equity paradigm." These policies are multifaceted and take various forms, but largely focus on three priorities: (1) increasing access to the industry for those excluded by the current approach; (2) addressing criminal records; and (3) (re)investing cannabis tax revenues into disproportionately impacted communities. (6) All three priorities reflect the shortcomings of the market-based legalization model. They also reflect the emphasis on equity. Social equity advocates argue that a just outcome is more likely to result when policymakers recognize differences and tailor remedies to specific needs. (7) In the context of legalization, this simply means that those disproportionately harmed by prohibition should receive disproportionate benefit under legalization.

Social equity advocates have seen significant success. The fact that most adult-use legalization states have adopted some version of the social equity paradigm clearly demonstrates this. (8) But there are also significant challenges. Lawsuits have questioned the constitutionality of social equity provisions, arguing that they violate the Dormant Commerce Clause, equal protection, and/or Due Process provisions of the Constitution. (9) We detail these challenges elsewhere. (10) Here, we focus on another issue: the fact that many justice concerns are not included in the social equity paradigm as currently construed. One of the most significant is environmental justice.

There is a growing concern about the environmental impacts of the cannabis industry. (11) While additional research is needed, there is increasing evidence that the commercialization of cannabis is associated with a range of environmental harms. (12) Moreover, the same communities most likely to have disproportionately suffered under prohibition--low-income communities and communities of color--are just as likely to disproportionately suffer environmental harms. (13) As discussed below, there are indicators that the cannabis market is already perpetuating environmental injustice in its surrounding communities with practices that exploit people and the natural environment. (14) This continues familiar patterns of environmental racism and racial capitalism that predate the creation of the legal cannabis market but now seem to be part of it. (15) At the same time, attending to issues of environmental justice presents a new opportunity to redress the racially disproportionate harms of the War on Drugs and the inequities of current legalization efforts, as well as an opportunity to close the gap between the communities impacted by prohibition and those who have experienced the most success in the legalized market.

This Article proceeds in three parts. Part I provides an overview of the social equity paradigm. Part II surveys environmental issues in cannabis. Part III provides an overview of the concept of environmental justice and its importance for the social equity paradigm and the broader quest for justice in and through cannabis legalization. We put particular emphasis on the shared concern with the disproportionate impact on low-income communities and communities of color. The conclusion provides final remarks and areas where the cannabis market might lead the way in modeling environmentally responsible practices rooted in equity and justice.

1. THE SOCIAL EQUITY PARADIGM

   The social equity paradigm begins with the fact that the War on Drugs has disproportionately impacted low-income communities and communities of color. (16) Cannabis played a central role in the build-up and roll-out of the War on Drugs, and its effects have continued in the wake of legalization. (17) Between 2001 and 2010, there were more than 8 million cannabis arrests, with 88% of those being for possession alone. (18) However, these arrests were not equally distributed across racial demographics. (19) On average, from 2001 to 2010, a Black person was 3.73 times more likely than a white person to be arrested for cannabis, despite comparable use rates. (20) These racial disparities in cannabis arrests have persisted into the legalization era. (21) Though the number and rate of arrests dropped in states that legalized from 2010 to 2018, a Black person was still 3.64 times more likely to be arrested for cannabis. (22)

   Racial disparities were lower in states that had legalized cannabis (23) but their persistence shows that legalization alone cannot--and will not-redress the harms of the War on Drugs. (24) This is largely due to the market-based approach to legalization that has prioritized economic arguments over justice concerns. (25) While this approach was likely necessary to build the coalition needed for legalization to pass, (26) it has created problems of its own which social equity and other advocates address.

   One of the most glaring problems has been that states did not apply changes in criminal law retroactively. (27) As a result, people convicted of cannabis-related crimes--including activities that were no longer crimes following legalization--did not receive any post-conviction relief. (28) Moreover, states used these same crimes, and resulting criminal records, to exclude people from participation in the legal cannabis market. (29) In Colorado, for instance, the law originally excluded people with a felony conviction from working in the legal cannabis industry for five years, and those with a felony drug conviction for ten. (30) This had the effect of disproportionately excluding low-income people and people of color from the economic opportunities presented by the new legal cannabis market, while letting those who avoided arrest and conviction launder their experience into a market-relevant skill set through licensure in the legal industry. (31) Not only is this unjust--it also perpetuates the racial wealth and opportunity gaps in the United States. (32) Wealthy white people, mostly men, have been able to access and enjoy major success in the cannabis industry, while the industry has largely excluded low-income people and people of color. (33) Enter the social equity paradigm.

   1. Industry Access

      The first prong of the social equity paradigm is increasing access to the legal cannabis industry for those whom prohibition had disproportionately harmed. Early legalizing states, concerned with perceived bad actors infiltrating the newly established market, excluded those with criminal convictions from working in the industry. (34) Additionally, with cannabis start-ups costing millions (35) and access to traditional finance off-the-table due to continued federal illegality, much of the money in the regulated industry today remains as private wealth. (36) However, few people have immediate access to the amount of cash and networks necessary to start and sustain a successful cannabis business. This is especially true for those burdened by the collateral consequences of criminal convictions and systemic discrimination. (37)

      The industry access prong of the social equity paradigm prioritizes laws and policies that enable those from disproportionately impacted communities to enter the industry. (38) Such policies can take many forms but tend to center on creating special licensing, training, and funding opportunities for qualifying social equity applicants. (39) Preferential access to cannabis operating licenses would be particularly beneficial, as most states directly, or indirectly, limit the number of available licenses. (40) While defining who counts as a social equity applicant has been complicated--with definitions that vary from state to state--the universal goal is to narrow the racial wealth gap in cannabis through cannabis, thereby mitigating some of the harms of the War on Drugs.

   2. Criminal Records

      The second prong of the social equity paradigm prioritizes...