Nepa and Gentrification: Using Federal Environmental Review to Combat Urban Displacement

• Publication year: 2021

NEPA and Gentrification: Using Federal Environmental Review to Combat Urban Displacement

Jesse Hevia

NEPA AND GENTRIFICATION: USING FEDERAL ENVIRONMENTAL REVIEW TO COMBAT URBAN DISPLACEMENT^†

Abstract

Cities are embracing green spaces and environmental amenities. But as government and private investment surges into urban neighborhoods, residents of historically disinvested communities are evicted and displaced to make room for a wealthier—and often whiter—demographic. The National Environmental Policy Act requires federal agencies to prepare an in-depth environmental impact statement for proposed actions significantly affecting the quality of the human environment. Federally funded redevelopment projects contribute directly to the powerfully displacing forces of gentrification, and environmental impact statements for such projects should affirmatively account for the indirect displacement effects caused by that investment. Articulating a clear legal obligation that federal agencies must consider the specific social and cultural harms associated with gentrification would provide communities with another avenue to address displacement concerns and to force agencies to consider alternative options and mitigation strategies that could alleviate the negative impacts of gentrification.

This Comment demonstrates that agencies should be required to consider indirect urban displacement associated with gentrification in federally mandated environmental impact statements. It discusses the statutory framework of NEPA and its relevance to urban redevelopment projects. It then explores the treatment of urban displacement in NEPA case law and considers the causal relationship between urban reinvestment and indirect displacement. It then focuses on how cumulative impacts of past federal and private actions have contributed to the heightened susceptibility of many communities, especially African American communities, to displacement pressures and how the federal environmental review process can provide a tool to combat the inequities of the urban landscape.

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Introduction.............................................................................................713

I. National Environmental Policy Act........................................716

A. Scope of NEPA: Environmental Impact Statements ................. 717

1. Major Federal Action ......................................................... 717
2. Significantly Affecting the Human Environment ................ 721

B. Indirect and Cumulative Effects ............................................... 724
C. Public Participation and Environmental Justice...................... 726

II. Human Environmental Impacts of Urban Redevelopment ... 728

A. Indirect Effects of Urban Redevelopment................................. 729
B. Cumulative Impacts of Past Actions ......................................... 730

III. NEPA Review in the Context of Urban Displacement ...........736

A. Direct Displacement ................................................................. 736
B. Indirect Displacement .............................................................. 738

IV. Implementation..............................................................................743

A. Opportunities for Organizers ................................................... 743

1. Alternatives and Mitigation Measures ............................... 744
2. Scoping Phase .................................................................... 748
3. Comment Period................................................................. 749

B. Limitations................................................................................ 750

1. Deferential Standard of Review.......................................... 750
2. Barriers to Public Participation ......................................... 751
3. Requirement of Significant Physical Impacts ..................... 752

Conclusion.................................................................................................753

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Introduction

Suburbanization and urban sprawl across the United States have caused numerous environmental and social effects.¹ But over the past several decades, many American cities have witnessed a different type of urban growth, one that embraces "inner-city rehabilitation" and "neighborhood renovation" as an alternative to sprawl.² This specific type of urban growth and redevelopment also caters predominantly to higher-income residents.³ Millennials especially are seeking urban lifestyles that are walkable, sustainable, and more environmentally-friendly than the still-prevalent exurbs.⁴ On its face, this renewed "back to the city" movement⁵ offers notable public benefits, transforming formerly disinvested and neglected urban neighborhoods into amenities such as greenways⁶ and waterfront parks,⁷ stimulating commercial development,⁸ increasing municipal tax bases, and providing other social and environmental benefits to those wealthy enough to afford them.⁹ However, these projects also contribute to displacement and loss of social capital for the very same communities who have historically suffered the most from environmental harms.¹⁰ Projects that increase green space or otherwise improve the

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environmental amenities in a community often lead to sharp increases in property values, displacement of local communities, and racial and socioeconomic homogeneity.¹¹ Oftentimes, the "greening" of the physical urban landscape also coincides with the "whitening" and "richening" of the cultural landscape.¹²

Often, communities that have fought the hardest for environmental cleanups and that have suffered the most from urban environmental hazards are those most likely to be excluded from living in a revitalized urban environment. While there is no universally accepted definition of gentrification, for the purposes of this Comment, the term "gentrification" refers to changes—usually linked to an influx of capital in a particular neighborhood—to the physical, social, cultural, and socioeconomic character of a community and the associated displacement of lower-income residents by a more affluent demographic.¹³ The linkage between environmental improvements and gentrification has prompted scholars to examine the "pernicious paradox" facing the environmental justice movement: that successful efforts by members of environmental justice communities to address decades of environmental racism and disproportionate ecological burdens could ultimately contribute to their displacement from their neighborhoods just as the physical landscape becomes cleaner and healthier.¹⁴ This phenomenon has been termed "environmental gentrification,"¹⁵ and it illustrates the tension between a progressive culture of environmental sustainability and the entrenchment of capitalist ideals.¹⁶

By centering a conception of sustainable cities as places that have room "only for park space, waterfront cafes, and luxury LEED-certified buildings," decision-makers necessarily exclude working-class communities, particularly working-class communities of color—often the same communities who have

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been historically and disproportionately affected by the environmental degradation associated with past industrial uses.¹⁷ Institutional determinations of the 'highest and best uses' of the urban landscape reflect judgments about who environmental sustainability is for and who has access to live in a 'green' city. Acknowledging these competing interests raises the question of whether the concept of a sustainable city—as defined by institutional actors—is strictly concerned with the greening of a landscape and access to environmental amenities or if a truly sustainable city also recognizes the sustainability of communities and social capital.¹⁸

The National Environmental Policy Act (NEPA) provides one pathway for addressing the equity gap in urban development by requiring federal agencies to fully consider the gentrification impacts of their actions on these communities.¹⁹ Federal agencies are required to address environmental justice concerns in their decision-making.²⁰ Where federal funding and involvement contribute to commercial development and environmental gentrification, NEPA can provide a powerful tool for communities to identify displacement concerns and other potential impacts and to ensure that the negative effects are adequately considered.²¹ Such impacts can be alleviated by incorporating mitigation strategies into projects from the planning stage and addressing the negative impacts of gentrification at the outset rather than on an ad-hoc basis. This

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comment argues that urban displacement associated with gentrification is a reasonably foreseeable environmental effect of federally funded urban redevelopment projects and that agencies should be required to consider such impacts in environmental impact statements under NEPA.

This Comment proceeds in four parts. Part I describes the statutory framework of NEPA and discusses the role of environmental review in the urban environment. Part II demonstrates the relevance of environmental review in the context of displacement harms associated with gentrification and illustrates that indirect displacement is a reasonably foreseeable effect of reinvestment projects. Part III shows that policy concerns motivating consideration of direct displacement also apply to indirect displacement and argues that the statutory purpose of NEPA, judicial interpretation of NEPA requirements, and the cumulative impacts faced by many historically disinvested communities require the consideration of indirect displacement effects in agency environmental impact statements. Finally, Part IV identifies specific avenues for utilizing NEPA as a tool to combat urban displacement and discusses the limitations of NEPA in the gentrification context.

I. The National Environmental Policy Act

Signed into law in 1970, NEPA was the first of...