Lev E. Breydo (Villanova University - Charles Widger School of Law; University of Pennsylvania Carey Law School - Student/Alumni/Adjunct) has posted Inequitable Infrastructure. An Empirical Assessment of Federalism, Climate Change & Environmental Racism (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article explains a critical, yet unexplored issue: how are communities like Jackson – the 80% Black capital of Mississippi – often left without water or electricity, while their mostly-white neighbors are not?
The Article maps uncharted territory by interrogating the underlying causes of this disparity, making essential contributions to the literatures on environmental racism and federalism – particularly by illustrating the disparate impact of federalist infrastructure policy. The analysis details how seemingly unrelated forces – including federal, state and local policies, as well as municipal finance – interplay with climate change to perpetuate systemic resource inequities.
Three factors are most pertinent to untangling the issues. First, almost uniquely among developed economies, the U.S. federalist model allocates infrastructure responsibility to the states, which sub-delegate it to local governments. Under the guise of autonomy, this leaves the least-resourced governmental units responsible for expenses far beyond their means. Second, because of this funding mismatch, local governments must borrow heavily through complex municipal instruments that provide investors wildly underappreciated power over critical assets.
Finally, the first two factors interplay dangerously with the continuing effects of U.S. segregationist policy, which has concentrated historically marginalized groups in areas with low-quality, debt-laden infrastructure, often most acutely exposed to climate change. As a result, communities from Mississippi to Puerto Rico and Michigan increasingly lack basic resources that most Americans take for granted.
Recognizing the need for a new approach, the Biden administration has enacted an ambitious – though underappreciated – legislative package that reflects an evolution of the federalist infrastructure construct: Biden’s “Infrastructure New Deal.” However, while well-intentioned, the Infrastructure New Deal may disappoint. The Article’s empirical and legislative analysis identifies a number of critical shortcomings, including inadequate funding and inapposite structure, and suggests mitigating strategies based on comparative assessment of other countries’ successful approaches.