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Resilience Justice and Community-Based Green and Blue Infrastructure
Get PDFThe environmental conditions of marginalized communities, particularly low-income communities of color, make those communities disproportionately more vulnerable to major disturbances and changes, such as climate change, health crises, pollution releases, disasters, economic shocks, and social and political upheaval. Many of the most important movements for justice with respect to environmental conditions, including environmental justice, disaster justice, and climate justice, are connected to broader movements for racial and social justice, asserting that Black and Brown lives matter. These movements seek to confront, dismantle, and reform systems of racism, colonialism, and structural inequality.
In particular, low-income communities of color have inequitably less and worse green and blue infrastructure, such as parks and green spaces, trees, restored waterways, biotic stormwater controls, food gardens, and wetlands. In general, “green and blue infrastructure” is a public-policy term that refers to the biotic and aquatic conditions on which communities depend, and is considered roughly equivalent to the more business-oriented term “natural capital” and the more science-oriented term “ecosystem services.” Having disproportionately lower quantities and quality of green and blue infrastructure makes low-income communities of color more vulnerable and less resilient to disasters, pollution, climate change, and health stressors, than residents in higher-income White neighborhoods. For example, neighborhoods having too few parks and trees have higher rates of asthma and obesity and poorer mental and physical health among Black and Latino children. Low-income neighborhoods and neighborhoods of color are more vulnerable to urban heat island effects, heat waves, and heat-related deaths due to disproportionately less trees, vegetation, and green spaces. Low-income neighborhood residents typically do not receive the benefits of green and blue infrastructure policies that are designed to mitigate and prevent urban flooding, even though low-income people of color are substantially more likely to live in flood-prone areas.
Public policies to remedy unequal green and blue infrastructure in low-income neighborhoods of color often fail because inequality and racism are deeply embedded in social systems and institutions. Top-down government decisions to create new green and blue infrastructure in these neighborhoods often fail to build neighborhood social capital (i.e., cooperation, trust, problem-solving, networks), empower the marginalized and oppressed residents, and address community-defined needs. New green and blue infrastructure either are neglected and degraded over time or displace existing residents through green gentrification, when new green and blue infrastructure stimulate external investment and land-development in the neighborhood, driving up property values and rents and driving out the low-income residents of color as their neighborhoods become whiter and wealthier. The interconnected environmental, economic, social, and political vulnerabilities of marginalized neighborhoods make them less resilient to shocks of all types, including well-intended but unjust government policies and investments.
Co-governance of green and blue infrastructure, in which government agencies and grassroots neighborhood groups share decision-making authority and management responsibilities, offers systemic reform both to improve the community’s green and blue infrastructure and to empower low-income communities of color and build their resilience. This Article proposes a co-governance approach to seeking more equitable and community-based green and blue infrastructure in communities that have been marginalized by racism, structural poverty and inequality, colonial structures, pervasively unequal environmental, economic, social, and political conditions, and disproportionate vulnerabilities. A co-governance approach differs in certain ways from more government-oriented reforms, such as more equitable distribution of government-provided infrastructure, improved participatory processes for government decision-making, and legal accountability of the government for discriminatory decisions. A cogovernance approach also differs from typical approaches for devolving power from the public to private sectors, including public-private partnerships, community-provided infrastructure as a commons, and government support for private infrastructure having community benefits.
Moreover, new co-governance structures must not only hybridize institutions of government-managed and community-managed resources, but also be characterized by “resilience justice”: systems-oriented principles and tools of racial justice, neighborhood empowerment, and community resilience. Government resources and authority are needed but should be integrated with bottom-up organizing and power. The concepts and framework of resilience justice are based on syntheses of over 300 studies of community resilience, as well as principles of human capabilities/ community-capacities justice and environmental justice.
Part I of this Article describes what green and blue infrastructure are and their general benefits and specific contributions to the adaptive capacities of communities. Part I also summarizes and synthesizes the abundant literature on the disproportionately less and worse green and blue infrastructure in low-income communities of color, and the impacts on community capacities and vulnerabilities. Part II articulates the concept and principles of resilience justice by which green and blue infrastructure policy generally and co-governance reforms specifically should be evaluated. Part III describes the concept and features of co-governance, contrasting it with other governance responses to green and blue infrastructure inequities. Part IV features several case studies of co-governance arrangements for green and blue infrastructure in particular low-income communities of color in the sense that at least some elements of co-governance characterize these governance arrangements. These case studies illuminate not only the promise of co-governance of community-based green and blue infrastructure but also the barriers to and limits of co-governance arrangements, particularly in light of resilience-justice goals. Part V reflects on what will be needed to create and implement co-governance structures for community-based green and blue infrastructure that will advance resilience justice. The Article concludes with suggestions for future research and governance reforms
Smart Cities and Sustainability: A New Challenge to Accountability?
Get PDFFrom 1800 to today, the global population has shifted from only three percent living in an urban environment to well over fifty percent in 2020. As a result of urbanization, cities around the world struggle to manage traffic and waste, efficiently distribute utilities, and lower pollution to slow the progression of global warming. Smart city technologies have emerged as a tool to process cities’ various forms of data collected through networks of precisely placed sensors and map solutions to many of the environmental and social issues created by urbanization. For swelling metropolitan areas in the United States, China, and Europe as well as in developing countries like Kenya and India, the allocation of control over smart city technologies in private hands provides the necessary technical expertise and funding to make cities smarter and, therefore, more sustainable.
However, smart cities gain insight of smart technologies at a cost. The question is whether this cost is clearly understood. An obvious cost is the loss of privacy, which is receiving much attention at academic as well as political levels. Another less obvious, but not less important, cost is the challenge to establish clear lines of accountability for decisions based on smart city technologies. Public mistrust in ubiquitous technology capable of surveillance is inextricably linked to transparency, critical in democratic systems. The question is whether these risks are necessary to achieve greater sustainability.
This Article reviews the sustainability claims that smart cities promise while highlighting the issues raised by the privatization of large data collection, the exposure of personal data, and the datafication of citizens from the perspective of accountability. The Article will conclude with some observations on the challenge of establishing accountability in the context of smart cities governance
The Half-Earth City
Get PDFAt the intersection of the biophilic city and the global commitment to halt biodiversity declines lies the half-earth city.
E.O. Wilson inspired the global effort to conserve and restore half the Earth, to sustain remaining biodiversity, necessarily focused on areas where the human footprint is small and the conversion of land to anthropogenic land use is less pronounced. However, given the increasing urbanization of the globe, cities must also play a central role in the conservation of global biodiversity. Holistic ecoregional planning must account for the impact of cities and work to ensure that urban areas are built in harmony with a world where nature receives half.
Cities provide both a known challenge, but also lesser understood opportunities. Uncontrolled urban expansion and expanding ecological footprints are a primary driver of habitat loss and species decline. To the extent that these trends can be slowed or even reversed, cities can work to limit damaging impacts beyond the borders of cities. With their global economic influence, it is critical for cities to assume a leadership role in the stewardship of global biodiversity by participating in city-to-city diplomacy and supporting global commitments. Cities can contribute significantly to the half-earth vision by pursuing a more sustainable path of consumption, while also committing to a resolve to conserve irreplaceable biodiversity at the global scale.
As growing science and the vision of the biophilic city suggests, cities can also provide for flourishing biodiversity within the borders of the city. Through the conservation of remnant habitat and the nurturing of unique human-influenced habitats found only in cities, new spaces and connections through and across the urban landscape can be forged.
A central tenant of the biophilic cities’ vision is the acknowledgment that despite the many challenges presented by increasing urbanization, cities are laboratories for continued experimentation and identification of innovative means to balance an improved quality of life with continued flourishing of human and nonhuman species alike. The benefits derived from the integration of nature across the cities are well documented and manyfold. These include: improved health and wellbeing; increased community resilience in the form of the equitable distribution of critical infrastructure such as tree canopies; multimodal transportation; environmental benefits of enhanced stream health, improved water quality, and reduced flood risk; and the promotion of biodiversity through preserved and enhanced ecosystems and habitats. Thus, biodiversity conservation in the form of abundant and accessible nature is part of a larger biophilic city vision that seeks to reverse the negative trends of urban areas and “create healthy, resilient cities and towns for both people and biodiversity.”
Indeed, cities are already at the forefront of biodiversity conservation and the goal of half-earth. The City of Boulder, Colorado, augments its own conservation within the city by building a seamless connection to surrounding national park and federal wilderness areas, and through these collective efforts more than half of the land within surrounding Boulder County is protected. Perhaps even more impressive is the feat of Singapore, a partner city in the Biophilic Cities Network, which has protected more than half of the city through a combination of large-scale, connected reserves and smaller scale neighborhood parks.
This Article examines the law, policy and practices available to cities to nurture the unique biodiversity possible within urban landscapes and to contribute to the larger global effort to regenerate lost migratory pathways and core conservation areas, thereby contributing to the biophilic city and half-earth visions and halting the decline of global biodiversity
A New Compact for Sexual Privacy
Get PDFIntimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little could be done to curtail it. What is big business for firms is a big risk for individuals. Corporate intimate surveillance undermines sexual privacy—the social norms that manage access to, and information about, human bodies, sex, sexuality, gender, and sexual and reproductive health. At stake is sexual autonomy, self-expression, dignity, intimacy, and equality. So are people’s jobs, housing, insurance, and other life opportunities. Women and minorities shoulder a disproportionate amount of that burden.
Privacy law is failing us. Not only is the private sector’s handling of intimate information largely unrestrained by American consumer protection law, but it is treated as inevitable and valuable. This Article offers a new compact for sexual privacy. Reform efforts should focus on stemming the tidal wave of collection, restricting uses of intimate data, and expanding the remedies available in court to include orders to stop processing intimate data
The Emerging Lessons of Trump v. Hawaii
Get PDFIn the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts considering separate challenges to the travel ban waiver process and the mass-rescission of humanitarian parole concluded that plaintiffs had not stated constitutional claims under Hawaii’s “circumscribed inquiry,” but these courts remained receptive to plaintiffs’ claims that an agency violated its obligation to provide a reasoned justification, consider reliance interests, explain itself sufficiently, or follow its own procedures. Second, Hawaii has prompted district courts to engage more deeply with the notion that different classes of immigrants are entitled to different levels of constitutional protection. This more open discussion of the contours of immigrants’ rights acknowledges immigrants as potential rights-holders but ultimately exposes the limits of a rights-based approach to protecting immigrants’ well-being
Stifling Nascent Concerted Activity: The NLRB and the Alstate Decision
Get PDFThe National Labor Relations Board (NLRB) made a number of significant changes to the interpretation and enforcement of the National Labor Relations Act (NLRA or the Act) under the Trump administration. The collective impact of these changes may make it more difficult for workers to bring successful unfair labor practice charges against their employers. Although NLRB case decisions and rulemaking affect a large proportion of American workers, the significance of these policy changes is often not widely recognized. This Note will examine one such change—the Board’s 2019 Alstate Maintenance decision that overturned its 2011 decision in WorldMark by Wyndham
Calls to Eliminate Bar Exams Are Premature
Get PDFCalls for eliminating bar exams to improve fairness and diversity in the legal profession are increasing, but A. Benjamin Spencer, dean of William & Mary Law School, argues that eliminating them is not the answer. They should be transformed into a more effective gauge of professional readiness, which, he contends, can be achieved if more states adopt the Uniform Bar Exam
Analysis of Administrative Agency Adjudicatory Hearing Use of Remote Appearances and Virtual Hearings
Get PDFWith the advent of the COVID-19 pandemic, federal and state courts and federal adjudicatory agencies suspended most trials and hearings. Faced with the requirement to fulfill their basic mission, many resumed partial operations using computer-based video conferencing,especially for preliminary legal and procedural matters. As time passed, the use of that videoconferencing extended to bench trials in courts and to adjudicatory hearings and proceedings such as settlement meetings, mediations, arbitrations, and status conferences in federal agencies. As of this writing, there have also been a small number of remote or virtual jury trials in state and federal courts.
The Administrative Conference of the United States (ACUS) initiated a project to study how federal adjudicatory agencies are using remote appearances and virtual hearings with the intent to propose recommendations for the future. The Center for Legal & Court Technology (CLCT) has prepared this report in response
