Environmental Racism: How Lawyers Can Help Close the Climate Gap
12.7.2020
On August 29, 2005, Hurricane Katrina made landfall in the Gulf Coast region of the United States. The category 3 storm brought wind speeds in excess of 120 mph and a storm surge as high as 19 feet.[1] For cities in the storm’s path, like New Orleans, officials ordered mandatory evacuations. Many New Orleans residents, though, lacked the financial means to leave the city, remaining in their homes to weather the storm. This circumstance proved deadly. Over 1,800 people lost their lives during the storm.[2] Of those who perished in New Orleans, the vast majority were the poor and African Americans.[3]
The catastrophe that befell New Orleans stemmed not only from the inadequacy of its levee systems, but from a history of racial and climate injustice. The disproportionate and unequal impact that climate events have on the poor and people of color has been labeled the “climate gap” – and the gap is widening. Whether climate events involve hurricanes, wildfires, extreme heat or increased exposure to air pollution, black and Hispanic communities bear the brunt of the climate crisis. This inequitable impact has sparked a climate justice movement that seeks equal protection for all from the worst effects of climate change.[4] As advisors, advocates and negotiators, lawyers are uniquely qualified to help this movement succeed.
Hurricane Katrina: The Poster Child for Climate Injustice
Any discussion on climate justice must include an account of Hurricane Katrina and the ecosystem of failures surrounding that catastrophe. The events leading to Katrina’s tragedy date back to 1965 when, following the destruction caused by Hurricane Betsy, New Orleans enlisted the aid of the U.S. Army Corps of Engineers to repair and rebuild its levee systems.[5] In New Orleans, levee boards (whose members are primarily affluent and white) determine the allocation of federal funds for building or supporting the levee systems. Prior to Katrina, much of the federal money went to repair the levee system in Lakeview, which is a predominantly white neighborhood. Federal money did not go to repair the structurally deficient levees in New Orleans East and the Lower Ninth Ward, which are predominantly black.[6]
As the storm approached the region, local officials delayed issuing their mandatory evacuation orders until less than 24 hours before Katrina’s predicted landfall, knowing many residents lacked the financial means or even a vehicle to evacuate on short notice.[7] Further, the mayor failed to deploy buses and trains at his disposal to effect an evacuation of these vulnerable residents.[8] During the storm, the city failed to provide adequate protection for the 25,000 residents sheltering within the Superdome. The facility had no running water and was equipped with only enough food and water for 15,000 people for three days at most.[9]
After the storm passed, “it took the better part of a week for a wide range of organizations and individuals to rescue and respond to the many thousands trapped in homes, hospitals, and businesses.”[10] The Federal Emergency Management Agency (FEMA), headed by Michael Brown, received the heaviest criticism for its poor performance.[11] Brown had no emergency management experience and failed to react quickly to the catastrophe, to deliver supplies, to coordinate aid, to facilitate communication, or even to remove the deceased from the floodwaters.[12] FEMA’s bungled efforts were further compounded by President George W. Bush’s apparent apathy.[13] “[Katrina] left a permanent scar on Bush’s reputation and legacy.”[14]
Katrina’s high death toll and staggering property losses epitomize the disparate impact that severe weather events, racially influenced emergency planning decisions and the absence of good leadership at the state, local and federal level have on communities of color. Katrina is the “poster-child [for] climate injustice.”[15]
The Climate Gap Widens as Environmental Risks Rise
For the first time in the 15 years that the World Economic Forum (WEF) has prepared its global risks report, the top five risks in terms of likelihood all concern the environment.[16] Topping the list is extreme weather, followed by climate action failure, natural disasters, biodiversity loss and human-made environmental disasters. Of the top five global risks in terms of impact, climate action failure, biodiversity loss and extreme weather remain among the most critical perils reported to the WEF. Illustratively, the 2020 hurricane season has witnessed a record 29 major storms, breaking the record set in 2005 – the year of Hurricane Katrina.[17] Climate change and the resulting sea level rise in every major coastal city place many communities of color at increasing levels of risk.
As more frequent and severe weather events have occurred, including Superstorm Sandy in New York, Hurricane Harvey in Texas and Hurricane Maria in Puerto Rico, researchers note the disparate effects such storms continue to have on the poor and people of color.[18] City planners in New York purposefully sited public and publicly subsidized housing along shoreline communities, such as the Rockaways, Coney Island and Long Beach, which consist primarily of black and Latino residents.[19] When Superstorm Sandy struck in 2012, “African-Americans bore an inordinate share of the decimation”[20] in those communities. Similarly, Houston’s poorer residents living in “[s]ubstandard infrastructure in affordable housing units”[21] were at greater risk to the effects of Hurricane Harvey. Six months following Hurricane Maria’s landfall in Puerto Rico, the U.S. territory experienced a pronounced spike in its mortality rate, stemming from “widespread and lengthy power outages, a lack of access to adequate health care, water insecurity and diseases related to the crisis.”[22]
In addition to hurricane exposure, wildfires have intensified dramatically in the last few years.[23] California has become the epicenter of fire risk, home to the 10 most costly wildfires in U.S. history.[24] Latinos, African Americans and Native Americans in that region experience a 50% greater vulnerability to wildfires than any other group.[25] These events imperil Latino communities disproportionately because “potential for land to burn correlate[s] with places with high Latino populations,”[26] resulting in displacement from their homes. This vulnerable group also suffers from discrimination and racial profiling, leading to its exclusion from disaster aid and disaster planning:[27]
[M]any individuals in rural areas, low-income neighborhoods, and immigrant communities do not have access to the resources necessary to pay for insurance, rebuilding, or continual investment in fire safety, thereby increasing their vulnerability to wildfire. These disparities became very clear after the 2017 wildfires in Sonoma County, California, where price gouging on rentals worsened an already dire housing shortage.[28]
People of color also suffer most during extreme heat waves.[29] “African Americans in Los Angeles are nearly twice as likely to die from a heat wave than other Los Angeles residents, and families living below the poverty line are unlikely to have access to air conditioning or cars that allow them to escape the heat.”[30] Extreme heat conditions also exacerbate air pollution,[31] which increases communities’ health risks, such as heart disease, stroke, chronic obstructive pulmonary disease, lung cancer and acute respiratory infections. “In California, five of the smoggiest cities are also the locations with the highest projections of ambient ozone increases associated with climate change, as well as the highest densities of people of color and low-income residents.”[32] Communities of color are also more likely to have toxic facilities sited near them and are more likely to live closest to coal-fired power plants.[33]
How Lawyers Can Play a Vital Role in Climate Change
Recognizing the expanding climate gap, researchers and activists have called for climate justice regulations and policies that will close this gap. Climate change measures deemed most effective at closing the climate gap are those based on giving – giving identity, equity, relief, roles and voice to these exposed groups. Lawyers are uniquely trained and skilled to achieve these objectives.
By vocation, lawyers are “officer[s] of the legal system with special responsibility for the quality of justice.”[34] They are charged with a mission to seek fairness for the underrepresented and to protect the most vulnerable members of our society. Lawyers need not be called to careers in civil rights or environmental law to impact climate change. Through volunteer initiatives and pro bono projects, they can commit invaluable time and legal research to identify and defend the groups most affected by the climate crisis.
Successful climate strategies must also be equitable. In a recent New York Times article, black climate activists found it impossible to create a sustainable environment without tackling inequality.[35] As litigators and legislators, lawyers often stand at the forefront of challenging the inequities in our society. They can champion climate change by bringing lawsuits to enforce governmental compliance with existing laws that protect the marginalized.[36] Lawyers can also prepare and help enact new environmental legislation, such as New York’s Climate Leadership and Community Protection Act (CLCPA).[37] CLCPA’s underpinning is equality: “No group of people, including a racial, ethnic or socioeconomic group, should be disproportionately exposed to pollution or bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal or commercial operations.”[38]
A fair climate change policy will also provide relief to disparately affected members in our community. Although some lawyers may not have specialized training to engineer this relief, or may lack time to volunteer for the cause, many have the financial resources to donate to those working on relief efforts.[39] Lawyers should ensure that these donated monies are directed to true “climate lobbying” and not the current spending that often “delay[s], control[s] or block[s] policies to tackle climate change.”[40]
An effective climate change policy will also give roles to members of these vulnerable communities, allowing them to influence change. A recent study shows that Hispanics, Latinos, African Americans and other non-white ethnic groups are more concerned than whites about climate change.[41] The study suggests that the increased concern stems from a recognition that these groups are often more exposed and susceptible to environmental hazards and extreme weather events.[42] Further, a recent poll conducted by the Environmental Defense Fund found that a majority of African Americans support a transition to a 100% clean economy to curb climate pollution.[43] As skilled communicators, many lawyers will be adept at guiding these groups to effect the climate change they seek.
Lastly, an unbiased climate strategy must give voice to communities of color disproportionately impacted by the climate crisis.[44] Here, lawyers’ advocacy training can be instrumental. By vocally supporting local leaders and highlighting community-specific concerns on environmental risks, lawyers can effectively close the conversation gap while simultaneously closing the climate gap. In his recent New York Times interview, climate activist Dr. Robert D. Bullard summarized it best:
Climate change is more than parts per million and greenhouse gases. . . . The people who are feeling the worst impacts of climate . . . their voices have got to be heard.[45]
Vivian D. Wesson serves as Chief Intellectual Property Counsel to Marsh & McLennan Companies, for which she manages and protects the IP assets of its businesses, as well as advises on data strategy. She is also Chair of the New York State Bar Association’s Committee on Attorney Professionalism and its Technology Subcommittee.
[1]. Sarah Gibbens, Hurricane Katrina, Explained, Nat’l Geographic (Jan. 16, 2019), https://www.nationalgeographic.com/environment/natural-disasters/reference/hurricane-katrina/#close.
[2]. Esri, Aftermath of Katrina: A Time of Environmental Racism, https://www.arcgis.com/apps/Cascade/index.html?appid=2106693b39454f0eb0abc5c2ddf9ce40 (In addition to the grave human toll, Katrina also inflicted over $125 billion in property damage, much of this damage visited upon the homes of African Americans).
[3]. Tracy Fernandez Rysavy & André Floyd, People of Color Are on the Front Lines of the Climate Crisis, Green Am., https://www.greenamerica.org/climate-justice-all/people-color-are-front-lines-climate-crisis (80% of homes lost in Katrina belonged to African Americans).
[4]. See, e.g., NAACP Environmental and Climate Justice Program, https://www.naacp.org/environmental-climate-justice-about.
[5]. Douglas Brinkley, The Great Deluge: Hurricane Katrina, New Orleans, & The Mississippi Gulf Coast Ch. 1 (2006) (ebook) (The Corps had the unenviable task of administering 30,000 square miles of Louisiana’s Gulf Coast while simultaneously balancing the conflicting interests of parochial Louisiana politicians and federal officials).
[6]. See Rysavy, supra note 3, and Pam Fessler, Why Wasn’t New Orleans Better Prepared?, NPR (Sept. 2, 2005), https://www.npr.org/templates/story/story.php?storyId=4829443 (“There had long been concerns among emergency managers that the city’s levee system was only designed to withstand a Category 3 hurricane . . . ”).
[7]. Sarah Kaplan, Climate Change Is Also a Racial Justice Problem, Wash. Post (June 29, 2020), https://www.washingtonpost.com/climate-solutions/2020/06/29/climate-change-racism (more than 30% of New Orleans residents did not own a car when Katrina stuck).
[8]. Eric Jay Dolin, A Furious Sky: The Five-Hundred-Year History of America’s Hurricanes Ch. 8 (2020) (ebook).
[9]. Id.
[10]. Id.
[11]. Brinkley, supra note 5, Ch. 2.
[12]. Dolin, supra note 8.
[13]. Kenneth T. Walsh, The Undoing of George W. Bush, U.S. News & World Report (Aug. 28, 2015 12:01 AM), https://www.usnews.com/news/the-report/articles/2015/08/28/hurricane-katrina-was-the-beginning-of-the-end-for-george-w-bush (In an infamous photo, Bush is showing flying in Air Force One over the destroyed portions of the Gulf Coast after returning from his vacation. Bush declined to visit the devastated area in person at that time.).
[14]. Dolin, supra note 8.
[15]. Rysavy, supra note 3.
[16]. Robert Bailey & Jaclyn Yeo, Marsh & McLennan Co., Inc., The Burning Issue: Managing Wildfire Risk 4 (Oct. 2019), https://www.mmc.com/content/dam/mmc-web/insights/publications/2019/oct/The.Burning.Issue-Managing.Wildfire.Risk.final2.pdf.
[17]. Oliver Milman, Devastating 2020 Atlantic Hurricane Season Breaks All Records, The Guardian (Nov. 10, 2020 4:28 AM), https://www.theguardian.com/world/2020/nov/10/devastating-2020-atlantic-hurricane-season-breaks-all-records.
[18]. Eleanor Krause & Richard V. Reeves, Hurricanes Hit the Poor the Hardest, Brookings Inst. (Sept. 18, 2017), https://www.brookings.edu/blog/social-mobility-memos/2017/09/18/hurricanes-hit-the-poor-the-hardest (“Low-income and minority communities are more vulnerable to the risks of natural disasters, and they also struggle most to recover.”).
[19]. Chris Sellers, Storms Hit Poorer People Harder, From Superstorm Sandy to Hurricane Maria, The Conversation (Nov. 19, 2017 9.26 PM), https://theconversation.com/storms-hit-poorer-people-harder-from-superstorm-sandy-to-hurricane-maria-87658.
[20]. Id.
[21]. Krause & Reeves, supra note 18; see also CNN, How Climate Change Impacts People of Color (May 29, 2019), https://www.cnn.com/videos/world/2019/05/29/how-climate-change-impacts-people-of-color-weir-dnt-vpx.cnn (Black Houston communities denied federal aid to rebuild their homes following Hurricane Harvey).
[22]. Arelis R. Hernández et al., Study: Hurricane Maria and its Aftermath Caused a Spike in Puerto Rico Deaths, With Nearly 3,000 More Than Normal, Wash. Post (Aug. 28, 2018 6:01 PM), https://www.washingtonpost.com/national/study-hurricane-maria-and-its-aftermath-caused-a-spike-in-puerto-rico-deaths-with-nearly-3000-more-than-normal/2018/08/28/57d6d2d6-aa43-11e8-b1da-ff7faa680710_story.html.
[23]. World Economic Forum, The Global Risks Report 2020 30 (report issued in partnership with Marsh & McLennan and Zurich Insurance Group) (“WEF Report”).
[24]. Bailey & Yeo, supra note 16, p. 32.
[25] Hispanic Access Found., Climate Change: Wildfires (2020), https://www.hispanicaccess.org/climate-change-wildfires.
[26]. Id.
[27]. Matt Majsak, Students Advise Latino Officials on Post-Hurricane Census Strategies, Duke Sanford Sch. Pub. Pol’y (Sept. 21, 2018), https://sanford.duke.edu/articles/students-advise-latino-officials-post-hurricane-census-strategies.
[28]. Hispanic Access Found., supra note 25.
[29]. Adrienne Hollis, African Americans Are Disproportionately Exposed to Extreme Heat, Union of Concerned Scientists (July 22, 2019 4:52 PM), https://blog.ucsusa.org/adrienne-hollis/african-americans-are-disproportionately-exposed-to-extreme-heat.
[30]. Rachel Morello-Frosch et al., The Climate Gap: Inequalities in How Climate Change Hurts Americans & How to Close the Gap 5 (May 2019), https://dornsife.usc.edu/assets/sites/242/docs/The_Climate_Gap_Full_Report_FINAL.pdf (“Climate Gap Report”).
[31]. WEF Report, supra note 23, p. 77.
[32]. Morello-Frosch et al., supra note 30, p. 13.
[33]. Rysavy, supra note 3.
[34]. N.Y. Rules of Professional Conduct preamble [1] (eff. Apr. 1, 2009).
[35]. Somini Sengupta, Black Environmentalists Talk About Climate and Anti-Racism, N.Y. Times (June 3, 2020), https://www.nytimes.com/2020/06/03/climate/black-environmentalists-talk-about-climate-and-anti-racism.html.
[36]. Matthew Metz, 7 Ways Lawyers Can Join the Fight To Curb Climate Change, ABA Journal (Feb. 27, 2020 10:50 AM), https://www.abajournal.com/voice/article/7-ways-lawyers-can-join-the-fight-to-curb-climate-change.
[37]. S.B.6599, https://legislation.nysenate.gov/pdf/bills/2019/S6599. See also Michael B. Gerrard, Record-Breaking Wildfires, Hurricanes and Heat Waves: The Year in Climate Change, NYSBA Journal (Nov. 18, 2020), https://staging.nysba.cliquedomains.com/2020-the-year-in-climate-change.
[38]. S.B.6599, supra note 38.
[39]. See, e.g., Earthjustice, the nonprofit public interest environmental law organization, whose motto is: “Because the earth needs a good lawyer,” https://earthjustice.org.
[40]. Joel Makower, Are Lawyers and Accountants Doing Enough on Climate Change?, Greenbiz (Oct. 13, 2020), https://www.greenbiz.com/article/are-lawyers-and-accountants-doing-enough-climate-change.
[41]. See Anthony Leiserowitz & Karen Akerlof, Race, Ethnicity and Public Responses to Climate Change, Yale Univ. & George Mason Univ. (2010), http://environment.yale.edu/uploads/RaceEthnicity2010.pdf.
[42]. Michael Estime, People of Color More Concerned About Climate Change Impacts, WKYC.com (Apr. 15, 2020 2:44 PM), https://www.wkyc.com/article/weather/people-of-color-more-concerned-about-climate-change-impacts/95-2f15ab78-fd22-4c31-acfd-22d1be18aa70; Matthew Ballew et al., Which Racial/Ethnic Groups Care Most About Climate Change?, Yale Program on Climate Change Commc’n (Apr. 16, 2020), https://climatecommunication.yale.edu/publications/race-and-climate-change.
[43]. Dave Kuntz, New Poll: Majority of African-Americans Affected by Climate Change, Support Transition to 100% Clean Economy, Env’t Defense Fund (Mar. 9, 2020), https://www.edf.org/media/new-poll-majority-african-americans-affected-climate-change-support-transition-100-clean.
[44]. See Atyia Martin, Racism and Climate Change Are About You, TEDx Dirigo, YouTube (Dec. 29, 2017), https://www.ted.com/talks/dr_atyia_martin_racism_and_climate_change_are_about_you (Dr. Martin suggests that climate policymakers undergo a “DIET” – a Diversity Inclusion & Equity Transformation).
[45]. Sengupta, supra note 35.
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