The State Housing Element Law Creates Powerful Opportunities to Advance Environmental Equity Across California

• Jurisdiction: California,United States
• Citation: Vol. 32 No. 2
• Publication year: 2023
• Author: Written by Ashley Werner
• topic: Civil Rights,Environmental Law

THE STATE HOUSING ELEMENT LAW CREATES POWERFUL OPPORTUNITIES TO ADVANCE ENVIRONMENTAL EQUITY ACROSS CALIFORNIA

Written by Ashley Werner¹

INTRODUCTION

Accomplished civil rights and environmental justice leader and West Fresno resident Mrs. Mary Curry often says that, if one branch of a tree is damaged, the entire tree knows and works to repair that branch.² She makes this point to illustrate her perspective that if one neighborhood or population is uniquely harmed by environmental degradation, disinvestment, or other threats to human well-being and access to opportunity, other neighborhoods in a community and the greater body politic should naturally work to come to that neighborhood's aid. They should work in unison to repair the harm and restore health, well-being and equilibrium for the benefit of the entire community.

In California, low-income communities and communities of color, especially Black and Latinx communities, experience insufficient decent quality housing, inadequate or absent infrastructure, services, and amenities, and exposure to disproportionate and often severe pollution burdens compared to more affluent and predominately White communities.³ These inequities trace their origins to historic explicitly discriminatory policies and practices which denied people and communities access to housing, financial services, and public and private investment based on income and race and bombarded low-income communities and communities of color with noxious and polluting land uses.⁴ California's legacy of discrimination persists today, often through facially neutral policies and practices, which perpetuate, reinforce, and exacerbate long-standing disparities based on income, race, and place.⁵ This reality yields devastating consequences: residents of low-income communities and communities of color live shorter lives, experience worse health outcomes, and face acute barriers to opportunities that allow people to thrive.⁶

The State Housing Element Law, including with amendments adopted by the Legislature pursuant to Assembly Bill 686 (Santiago, 2018) and Assembly Bill 1397 (Low, 2017), contains clear mandates requiring cities and counties to analyze and create and implement a plan to address housing needs and related infrastructure and service deficiencies of the entire community.⁷ Jurisdictions must also commit to actions to overcome segregation and address place-based disparities that impact residents on the basis of income, race, and other characteristics protected by civil rights laws.⁸ State Law vests the Department

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of Housing and Community Development ("HCD") with responsibility to oversee jurisdictions' compliance with the law.⁹ As such, the Housing Element Law represents a powerful opportunity to confront, and supersede, long-standing intertwined housing, investment, and environmental inequities across the state.¹⁰

PERSISTENT ENVIRONMENTAL INEQUITY IN CALIFORNIA

PRESENT ENVIRONMENTAL DISPARITIES

Amidst California's renowned environmental abundance, vast disparities in access to environmental quality that supports human health and well-being exist within and across the state's cities, counties, and regions.¹¹ Communities and neighborhoods which are disproportionately comprised of low-income people and people of color bear the greatest burdens of pollution from multiple sources.¹² People of color comprise more than 90 percent of the population of the top 10 percent of neighborhoods that rank as the most impacted by pollution in California, while more than two-third of residents of the 10 percent least impacted neighborhoods are White, according to analysis by the California Environmental Protection Agency.¹³ Industrial operations, hazardous waste facilities, highways and other land uses which generate air, water, and soil contaminants clustered in and around communities of color create toxic hot spots.¹⁴ These hot spots are sometimes referred to as "sacrifice zones" because of poor public health outcomes and increased mortality that impact residents chronically exposed to elevated levels of pollution.¹⁵

Chronic public and private disinvestment also contributes to environmental disparities. In 2011, with the adoption of Senate Bill 244, the Legislature recognized that many of the state's hundreds of disadvantaged unincorporated communities, which are predominately comprised of people of color, lack basic infrastructure, including, but not limited to, streets, sidewalks, storm drainage, clean drinking water, and adequate sewer service.¹⁶ Low-income communities and communities of color, especially in rural areas, disproportionately lack access to drinking water that complies with public health standards, putting residents at heightened risk of developing gastrointestinal illness, cancers and nervous system disorders and of mortality.¹⁷ Faulty electrical systems, lead-based paint prevalent in older homes, and dust rising from unpaved roads are a few examples of the many other environmental hazards present in low-income communities and communities of color across the state.¹⁸

Climate change is rapidly amplifying existing and creating new economic and racial disparities in California.¹⁹ Inadequate or deteriorating infrastructure and services and heightened pollution burdens increase these communities' vulnerability to extreme weather events.²⁰ Low-income communities and communities of color face disproportionate health impacts from extreme heat, flooding, drought, housing loss and displacement associated with climate change.²¹ Climate change's outsized toll on vulnerable populations and communities compounds the urgency of developing and implementing coordinated and comprehensive policy interventions to achieve environmental equity.²²

HISTORIC FOUNDATIONS OF ENVIRONMENTAL INEQUITY IN GOVERNMENT POLICY AND PRACTICE

Racially discriminatory governmental housing, land use, and investment policies and practices underlie many present-day environmental inequities.²³ Redlining, the process by which the federal government determined eligibility for government-backed, low-interest home mortgages to millions of Americans between the 1930s and 1940s, was one such practice with far-reaching effects.²⁴ To assess the risk of default, the Roosevelt Administration's Home Owners Loan Corporation (HOLC) rated entire neighborhoods according to a color-coded grading system, with red signifying that a neighborhood was "hazardous" and too risky for lending.²⁵ HOLC embedded explicit institutional racism into its criteria for evaluating risk, systematically downgrading neighborhoods home to people of color and immigrants as declining or hazardous.²⁶ HOLC also identified the presence of industrial operations or environmental factors, such as smoke and odors, as factors which increased a neighborhood's mortgage lending risk.²⁷ Ultimately, redlining coupled with other discriminatory housing and land use practices steered 98% of the $120 billion in home loans issued by the federal government between 1934 and 1962 to White people and communities and away from people and communities of color.²⁸ At the same time, the policies promoted local government implementation and enforcement of zoning and land use practices which created and maintained racial segregation and shielded White communities from polluting and noxious land uses, while driving those uses into communities of color.²⁹

In addition to implementing redlining policies, government actors shaped environmental inequities through investment

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in and denial of public infrastructure and services.³⁰ On one hand, from the 1950s through the 1980s, federal, state, and local governments targeted low-income communities and communities of color for freeway construction projects which demolished thriving neighborhoods, physically separated communities from critical resources, and exposed those communities to toxic air pollution from freeway traffic.³¹ On the other hand, governments expressly withheld infrastructure and services, such as water and sewer pipelines and service, to communities of color while providing those services to White neighborhoods and communities.³² For instance, Tulare County's 1971 General Plan established a strategy of withholding infrastructure and services from its disadvantaged unincorporated communities which it deemed "non-viable."³³

Historic racially discriminatory policies continue to shape environmental disparities and bear their imprint in facially-neutral policies which perpetuate those disparities today.³⁴ Neighborhoods ranked as "hazardous" or "declining" in HOLC maps nearly 80 years ago experience greater exposures to unhealthy air pollution levels and greater cumulative pollution burdens from multiple sources compared to neighborhoods that the government identified as "safe" for investment.³⁵ Cities and counties continue to use their broad land use authorities under state law to zone many of these same neighborhoods, and low-income neighborhoods and neighborhoods of color more broadly, for industrial operations and major public utilities, such as landfills, hazardous waste sites, and wastewater treatment facilities.³⁶ While most zoning codes may be free of expressly racially-discriminatory language, these and other contemporary land use policies and practices entrench and exacerbate racially-based pollution disparities.³⁷ At the same time, these practices deny or limit neighborhoods' opportunities for investments in land uses that support public health and enhance quality of life, such as grocery stores, medical offices, educational facilities, and public parks.³⁸

EXPANDED OPPORTUNITIES TO ADDRESS INTERSECTING ENVIRONMENTAL, HOUSING, AND INVESTMENT INEQUITIES THROUGH IMPLEMENTATION OF THE STATE HOUSING ELEMENT LAW

HOUSING ELEMENT LAW'S FUNDAMENTAL REQUIREMENTS

California adopted its Housing Element Law in 1969 soon after the passage of the Federal Fair Housing Act.³⁹ Since then, the Housing Element Law has served as the state's foremost affordable housing...