MAKING ME ILL: ENVIRONMENTAL RACISM AND JUSTICE AS DISABILITY.

• Author: Wilson, Britney R.

Introduction 1723 I. Environmental Justice as a Field of Advocacy 1726 A. History and Origins 1726 B. Environmental Justice and Public Health 1728 II. The Limitations of the Civil Rights Legal Strategy in Environmental Justice Cases 1730 A. The Challenge of Racial Discrimination Claims 1731 1. Intentional 1731 2. Disparate Impact 1733 B. Vulnerability Theory and the Road to Disability as a Potential Alternative 1735 III. The ADA as an Answer to the Limitations of Traditional Antidiscrimination Laws 1737 A. Filing Lewis v. Foster 1739 B. Developing Baez v. New York City Housing Authority 1744 IV. Implications of the Environmental Justice Disability Frame 1747 A. Legal Implications 1748 1. Required Inclusion of People with Disabilities 1748 2. The Lack of Intent Requirement Compared to the Need to "Prove" Disability 1751 3. Whether the ADA Maintains a Civil Rights Narrative in Environmental Justice Causes, or Whether its Use Reiterates the Need for New Strategies to Address Racial Injustice 1751 4. Whether the ADA Provides the Potential for Structural Remedies 1752 B. Social Implications 1752 1. Whether the Use of the ADA to Challenge Racial Injustice Constitutes Appropriation of Disability or an Important Illustration of the Intersection of Issues of Race and Disability 1752 2. Downsides & Compounded Effects of Disability Framing 1754 Conclusion 1755 INTRODUCTION

Like people of color and low-income people--both groups which many people with disabilities (1) also comprise--disabled people (2) are also disproportionately exposed to environmental harm. (3) Yet, the overexposure--or even exposure--of people with disabilities to environmental toxins has not necessarily been the driving force behind the exploration of the use of the ADA or the disability frame in environmental justice causes. (4) Civil rights attorneys and scholars, including environmental justice advocates, frustrated by the intent-based legal framework required to challenge racial discrimination under the Equal Protection Clause and the limitations of litigation under Title VI of the Civil Rights Act of 1964 have begun to seek other methods to address structural harm. (5) One of the suggested alternatives has been the use of the ADA and the framing of issues of injustice, such as racism, in terms of disability or the deprivation of medical rights. (6) Both advocates and scholars contend that the ADA's affirmative requirement to address discrimination through reasonable modification or accommodation offers a potentially more promising method for addressing structural harm. (7)

This Article analyzes the use of disability as both narrative device and legal measure in environmental justice causes to examine the contention that the ADA or a medicalization framing of the denial of such rights (8) are more suitable vehicles for challenging systemic racism and oppression. It does so with an eye toward the connection between environmental justice and public health and the existing critique of the framing of disability as the unwanted result of environmental injustice. (9) Rather than prescribe a certain amount of ADA or disability usage in future environmental justice efforts, the goal of this Article is to interrogate the implications of the disability frame in an area in which both issues of race and disability are present and inform one another.

Part I provides a history of environmental justice as a field of advocacy led by people of color that focuses on the racially disproportionate impact of environmental harm. It also explains the environmental justice movement's emphasis on the effect of environmental toxins on health outcomes in communities of color. (10) Part II discusses the difficulty of challenging environmental racism under racial discrimination laws and the resulting exploration of disability and medicalization framing, more generally, as a potential alternative. (11) Part III analyzes environmental justice cases filed under the ADA, and considers whether the ADA's affirmative mandate to (5) See infra Section II.A (discussing the difficulty challenging environmental injustice under civil rights race-focused laws).

(6) See infra Part II, III (discussing the potential incorporation of the concept of "vulnerability" into environmental justice work and the attempted use of the ADA to challenge environmental injustice).

(7) See infra Part III, IV (discussing the use of the ADA in environmental justice cases as a potential alternative and noting legal scholarship that champions the ADA to address racism and injustice).

(8) I define "medicalization framing" as a school of legal thought "promot[ing] the civil rights of health," which emphasizes the "physical consequences of subordination" in order "to leverage new types of evidence to demonstrate civil rights harms and violations." See Craig Konnoth, Medicalization and the New Civil Rights, 72 STAN. L. REV. 1165, 1170 (2020) (citing Angela P. Harris & Aysha Pamukcu, The Civil Rights of Health: A New Approach to Challenging Structural Inequality, 67 UCLA L. REV. 758 (2020)). For the purposes of this Article, I will use the term "medicalization" synonymously with the "disability frame."

(9) See infra Section I.B; see also Catherine Jampel, Intersections of Disability Justice, Racial Justice, and Environmental Justice, ENV'T SOCIO., 2018, at 6 ("Fear of disability as difference,.... does not belong in an intersectional [environmental justice].").

(10) See infra Part I.

(11) See infra Part II.

address discrimination via reasonable modification or accommodation is effective in challenging structural racism. This Part specifically discusses the attempted use of the ADA to stop the construction of a petrochemical plant in "Cancer Alley," Louisiana and to challenge the widespread mold in New York City public housing. (12) Part IV examines the implications of the use of disability to simultaneously highlight and combat environmental injustice and as a response to the limitations of civil rights and racial discrimination laws. (13) I conclude that the use of disability as both narrative harm and legal strategy in environmental justice campaigns illustrates important concerns about ableism (14) , racism, and the limitations of the law to advance the rights of marginalized groups. (15)

The use of the ADA to challenge environmental injustice offers important potential legal benefits, namely the required inclusion of people with disabilities in environmental justice efforts they are disproportionately affected by but from which they are often excluded--except for as anecdotal examples of harm. It also provides an opportunity to illustrate and address the racial and health effects of environmental harm in ways neither traditional environmental nor civil rights laws currently allow. However, while it may to offer some promise, the ADA has not been sufficiently tested as a legal tool to challenge structural racism in a markedly different way from racial antidiscrimination laws. There are also many indications that it is not a true alternative and that it has potential pitfalls of its own, including the required manifestation or proof of a disability within the meaning of the ADA.

The use of the ADA to challenge environmental injustice also risks putting people without exact proximity or relationship to the disabled identity or experience in control of a narrative about disability. This can perpetuate misconceptions about disability, which may have compounded effects on disabled people of color that have not been sufficiently considered. Therefore, any expansion of the ADA or disability frame to address racial injustice must adequately address and account for the effects of ableism, especially as disability intersects with other marginalized identities, such as race. Not doing so risks perpetuating the structural harm that advocates seek to eradicate.

1. ENVIRONMENTAL JUSTICE AS A FIELD OF ADVOCACY

   This Part defines environmental justice as a field of advocacy that focuses on the disproportionate racial impact of environmental harm. First, it explores the history and origins of environmental justice, including the organizing efforts of communities of color to challenge environmental hazards in their neighborhoods. Then, it discusses the groups and issue areas central to environmental justice work and the integral relationship between environmental justice and public health.

   1. History and Origins

      Environmental justice is a framework and practice that examines and challenges the "inequitable distribution of environmental protection[.]" (16) It poses the ethical, political, and social questions of "who gets what, why, and how much" when it comes to pollution, sanitation, and other forms of environmental harm and degradation. (17) In 1982, ten-year-old Kimberly Burwell was among dozens of Warren County, North Carolina residents protesting the imminent dumping of 40,000 cubic yards of toxic polychlorinated-biphenyl (PCB)-laden soil into a state-created landfill. (18) "I don't want them to put that stuff here," Kimberly cried, as state troopers moved her onto a prison bus. (19) "I'm scared. I'm scared I might catch cancer." (20) Henry Brooker, another resident who already had cancer, expressed similar concerns about the risk of the disease's spread in the community if the soil was disposed of there. (21)

      Kimberly's mother, Dollie Burwell, was one of the leaders of Warren County Citizens Concerned About PCBs (Warren County Citizens), a (16) Carita Shanklin, Pathfinder: Environmental Justice, 24 ECOLOGY L.Q. 333, 337 (1997).

      (17) See Robert D. Bullard, Environmental Justice in the 21st Century: Race Still Matters, 49 PHYLON, nos. 3-4, 2001, at 153-54.

      (18) Bob Drogin, Over Protests, a Landfill Is Born, PHILLA. INQUIRER, Sept. 16, 1982, at A02.

      (19) Id.

      (20) Id. Some feedback I received on previous drafts of this article included discomfort with including an illness like cancer in my discussion about...