Abstract

Excerpted From: Tom I. Romero, II, The Color of Local Government: Observations of a Brown Buffalo on Racial Impact Statements in the Movement for Water Justice, 25 CUNY Law Review 241 (Summer, 2022) (403 Footnotes) (Full Document)

In 2016, health regulators discovered per- and poly-fluoroalkyl substances, also known as “PFAS chemicals,” in the water supplies of Fountain and Security-Widefield, two towns in Colorado. The PFAS levels exceeded the U.S. Environmental Protection Agency's (“EPA”) recently enacted health advisory limits. According to the EPA, up until 2002, certain types of PFAS were “most extensively produced and studied” because of their widespread use in “carpets, clothing, [and] fabrics,” as well as paper packaging and non-stick cookware, and many industrial processes over the past 50 years. Carbon-fluorine bonds make them resistant to degradation and allow them to persist in the environment and bioaccumulate within living organisms for long periods of time. Given their extensive use, scientists (perhaps not surprisingly) discovered PFAS extensively in human beings. This has been of continuing concern due to their widespread environmental persistence and long-term toxicological effects.

Health regulators, water suppliers, and residents of Fountain and Security-Widefield learned that the PFAS chemicals in the local water supplies came from firefighting foam used for decades to extinguish training-fuel fires at the nearby U.S. Air Force's Peterson Air Force Base. Unseen, but with a potentially deadly impact, the fire suppressant had entered the drinking water supply. Various news reports indicated at the time that PFAS exposure was connected to low infant birth weight, high cholesterol, certain cancers, liver problems, and other health issues and the EPA even recommended that pregnant women and small children should stop drinking the water coming from their taps. Not long after the 2016 discovery, residents of South Adams County, a heavily Latinx community in the northeast Denver metropolitan area, were “frustrated and fearful” when Colorado's public health regulatory agency discovered PFAS chemicals in the water supply. The community's complaint was one among many nationwide that had been, or would soon be, lodged against public health agencies, local water utilities, and corporate manufactures of the chemical compound.

The discovery of PFAS chemicals in the drinking supply in Denver made evident the dramatic impact of the fire-suppressant chemical compound in the water systems of racially minoritized communities. Research linking PFAS exposure to cancer, liver and kidney damage, high cholesterol, low infant birth weight, immune system disorders, and other ailments only showed how environmental toxins could exacerbate preexisting health inequities in the nation's most vulnerable and segregated communities. In fact, PFAS exposure can also make racially minoritized communities more vulnerable even to future environmental hazards. In December 2020, for example, as COVID-19 vaccines were starting to be distributed, scientists announced that high-levels of PFAS exposure could decrease individual immunity and antibody response to vaccinations.

A few years ago, I wrote an article urging Critical Race Theorists and water law and policy practitioners to engage in critical conversation and collaboration around racial disparities in access to, and ownership and distribution of, usable water in the developing and developed worlds. Invoking Chicanx Movement lawyer Oscar “Zeta” Acosta's activist Brown Buffalo moniker, I argued that decision making in water law and policy needed to incorporate a racial justice lens. As part of a larger conversation catalyzed by the clean water crises gaining national notoriety in places like Flint, Michigan, my article attempted to center water as not only a key part of our understanding of environmental justice, but as perhaps the most important 21 century battleground in the elusive quest for racial justice in the United States.

The immediacy of this conversation was amplified in 2020 as the United States, and indeed the world, was literally and figuratively on fire as the interconnected pandemics of COVID-19, racial violence, and climate change-induced wildfires raged on. These interconnected disasters helped reveal the ways that racial and ethnic minoritized communities disproportionately bore the brunt of economic dislocation, deadly health outcomes, and physical displacement. For many local and state government entities, it also catalyzed a response to be more diverse, equitable, inclusive, and indeed color-conscious in service of racial and social equity within future policies and practices.

This Article takes seriously the commitment of government entities to achieve their aspirational goals to further racial and social equity in substantive ways. Because water utilities interact with customers and citizens every time a person turns on a water tap, it is arguably the most important local government entity shaping disparate and equitable racial outcomes in the United States. For this reason, I specifically advocate that water utilities adopt racial impact statements as part of their decision making.

In order to make this argument, this Article is organized in three subsequent parts. Framed by the words of Oscar “Zeta” Acosta, each section is designed to center and amplify the history, voices, and lived experiences of racially minoritized communities. The Article's structure also tracks and is informed by three of the four pillars of Critical Environmental Justice detailed by Professor David Naguib Pellow.

I begin Part II by placing the struggle for water justice in context of the history and contemporary reality of the American West. As Professor Pellow argues, history allows us to “unveil some of the social causes of our ecological crises and perhaps reveal clues as to how things might have unfolded differently and therefore invit[e] interventions for the future.” The American West is important because its unique characteristics challenge us to think differently about the root causes of water and larger climate inequity across the United States. The law of the American West has been defined by ecological challenges stemming from the geography itself--the intersections of mountains, plains, and desert environments--which in turn engender a unique jurisprudence. Part II also highlights the importance of regional histories to understanding the very different trajectories of water and climate justice in a local context. Knowing how the history of systemic and institutional racial inequity connects the intersection of water law and race, moreover, is a prerequisite for a truly just, and effective, racial impact statement. Indeed, it gives us the “wisdom” to thoughtfully act in relation to complex, hard to define, rarely connected, and often ignored patterns and practices of racial inequality.

Part III then turns to my Color of Water in Colorado Project. I first describe its primary goals; namely, to uncover the history of water inequity, partner with racial and climate justice groups, and leverage the resources of my university to link these groups with government regulatory agencies in a collaborative partnership. These types of projects and collaborations are what Professor Pellow would describe as a “twenty-first century framework that is nuanced and non-fundamentalist, that is always wary of state power but concedes that there are moments and spaces where states [and institutions like higher education] can be pushed to do work that is supportive of” water justice.

Building on the trajectory of racial and social inequity surrounding safe drinking water access in the Denver Metropolitan area that I describe in Part II, Part III explores some of the ways that consciousness and understanding of racial inequity has entered the legal, political, and regulatory regimes of water utilities and other government agencies in the state of Colorado. It also identifies some of the local racial justice organizations that raise and center the voices and experiences of racially minoritized communities in civic as well as legal discourse. As key organizations representing the voices and perspectives of racially minoritized communities, these groups are fundamentally important to bringing new leadership, fresh ideas, and a racial justice lens to those water utilities committed to the type of participatory governance necessary to adopt and implement racial impact statements as part of a water utility's politics and practice.

Part IV then explores the role that Racial Impact Statements (“RIS”) can play in embedding racial equity in the everyday practice of water utilities and government agencies. By deliberately being aware of and responsive to the history and lived experiences of racially minoritized communities, RISs provide a direct way for government entities to systemically acknowledge that “people of color are members of our society, are core participants in our social systems, are members in our socioecological systems, and are therefore key to ensuring the continued functioning, sustainability, and resilience of our [democracy], society, and planet.” The Section first details the history of Racial Impact Statements (“RIS”) in the criminal justice context, explores similar innovations in state law, and provides some initial observations about how specifically a water utility could use an RIS. As an additional necessary tool for water utilities in continuing best practices, RISs, along or with other color-conscious policies and practices, can provide a powerful platform capable of raising the voices of water justice advocates fighting the multiple firewater threatening their communities.

[. . .]

As a Brown Buffalo, I have long advocated for understanding the blue line of water development and water delivery as an issue of racial inequity. It is not lost on me that in this particular moment, a “blue line” has become a larger symbol of racial backlash to the types of racial justice advocacy and much more precise understanding of the history and impact of racism in our institutional, social, and everyday policy and practices. Recent efforts to ban Critical Race Theory and curricula designed to address systemic and institutional racism are merely the latest attempt to marginalize and silence the history, experiences, and voices of the nation's racially minoritized communities.

Racial impact statements and related efforts to address systemic and institutional racism in government practice is part and parcel of these larger debates. When Chief Justice John Roberts of the United States Supreme Court infamously concluded that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he was not just speaking to a particular government practice or policy. Rather, he was voicing a broader understanding of history, values, politics, and law that has long ignored and failed to come to grips with racial disparities. From the wider history of environmental inequity in the American West to long standing pollution experienced by one city's most vulnerable communities, race has shaped profoundly different outcomes. Particularly when it comes to the quality of the water one drinks, the water portfolio one holds, or the power one has in governance, the blue line creates, informs, and shapes the complex color lines of every American locality.

During oral arguments in the same case resulting in Justice Robert's infamous declaration, then-justice Ruth Bader Ginsburg made a very simple observation: “It's very hard for me to see how you can have a racial objective but a nonracial means to get there.” In other words, if governments recognize and acknowledge that racial disparity exists, there is no color-blind tool capable of addressing such harm. Indeed, continuing to be color-blind serves only to further embed and amplify racial differences without any real or meaningful change taking place. The 2020 nationwide protests against systemic and institutional racism reflected widespread and long-standing frustration to address head-on the consequence of racial disparity.

Racial impact statements, as representative of larger color-conscious tools available to policy makers, provide a pathways to larger societal objectives. As one of Critical Race Theory's own founding mothers has argued, “[w]e need to pay attention to what has happened in this country and how what has happened is continuing to create differential outcomes, so that we can become the democratic republic we say we are .... We believe in the promises of equality, and we know we can get there if we confront and talk honestly about inequality.” Inclusive governance and racial equity demand that we all become Brown Buffaloes in government and municipal water practices.

Tom I. Romero, II. J.D., Ph.D. Associate Professor of Law, University of Denver Sturm College of Law. Affiliate Faculty, University of Denver Department of History. Director, University of Denver's Interdisciplinary Research Institute for the Study of (in) Equality.