Inequitable Infrastructure. An Empirical Assessment of Federalism, Climate Change & Environmental Racism

Abstract

This Article explains a critical, yet unexplored issue: How are some 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, untangling how three seemingly unrelated factors interplay with the accelerating effects of climate change to perpetuate systemic inequities.

First, and somewhat uniquely, the U.S. federalist construct allocates infrastructure responsibility to the states, which, under the guise of autonomy, subdelegate to often under-resourced local authorities. Second, this capital mismatch requires governmental units to borrow using complex municipal instruments that provide investors vastly underestimated power over critical assets. Finally, these dynamics are compounded by America’s segregationist past, the legacy of which involuntarily concentrated minority groups in areas most exposed to climate change, and as a result these areas increasingly struggle to meet constituents’ basic needs, like water, heat, and light.

The Biden administration’s keenly underappreciated legislative package reflects a welcome evolution of the prevailing construct. Yet, the “Infrastructure New Deal’s” financial and structural shortcomings suggest it may disappoint, requiring mitigating strategies which this Article recommends based in part on comparative analysis of successful approaches from other jurisdictions.

Keywords: Environmental Racism, Federalism, Infrastructure Investment Act, Infrastructure, Administrative Law, Constitutional Law, Comparative Law, Empirical, Law & Economics, Municipal Finance, Public Finance, Structural Racism, Race & the Law, Legislation