Abstract

Excerpted From: Sarah Ruth Martinez, Racism in the Water: Access for All in Outdoor Recreation, 50 Ecology Law Quarterly 1 (2023) (411 Footnotes) (Full Document)

Powerful groups have, and continue to, racialize outdoor space. U.S. government officials have used a variety of policy tools to exclude People of Color (POC) from outdoor public spaces. These tools include placing racially restrictive covenants in housing deeds, redlining municipal districts to exclude people of color from accessing housing loans, using vagrancy laws or tort claims like nuisance and trespass, or implementing JimCrow laws to homogenize a space.

The Environmental Protection Agency (EPA) defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” In response to research and grassroots mobilization, in 1994, President Bill Clinton issued Executive Order No. 12,898, establishing EJ as a national priority for the first time. On paper, this executive order attempted to blend social justice with EJ. Clinton's move and subsequent efforts to build on the order should have legitimized the national EJ movement and validated the concerns of POC across the country. Yet almost thirty years after EJ became federal policy, stories where POCs are prevented from enjoying or engaging with their natural environments to the same extent as white people are still tragically routine. This Article identifies this inequity as a key EJ issue.

This Article uses a variety of terms to analyze the racialization of coastal and water-based recreation, including “blue space,” “green space,” and “POC.” Blue space refers to visible surface water bodies or watercourses, including pools and water features within a park. Green space is land partly or completely covered with grass, trees, shrubs, or other vegetation and includes parks, community gardens, and cemeteries. POC refers to groups composed predominantly of low-income and racially diverse members. Ultimately, this Article finds that the exclusion of POC from healthy outdoor green and blue spaces constitutes environmental racism and stems from mechanisms like exclusionary land use and housing policies resulting in diminished proximity to blue spaces, inaccessible or inequitable availability of transportation to or parking at blue spaces, and ongoing discrimination resulting in perceived lack of safety for POC in and around blue spaces.

The boom of outdoor recreation was born out of the creation of the national park system and has become a hallmark of the U.S. environmental movement. This Article explores whether there is inequitable access to spaces for outdoor recreation, particularly water-based recreation. This research is informed by a literature review of academic sources from multiple disciplines to examine whether and why there is demonstrable inequity. First, this Article reviews academic literature documenting the benefits of spending time in blue and green spaces to highlight the importance of equitable accessibility. Second, this Article reviews the social science and legal literature about the barriers to accessing blue space. Third, this Article establishes that historical legacies of slavery and later institutionalized racism constituted barriers to blue space, making it inequitably distributed and, often, more dangerous for POC, effectively deterring these communities from enjoying the benefits of water-based recreation. In other words, centuries of environmentally racist and elitist laws, policies, and practices have homogenized entire swaths of outdoor space to exclude POC. Finally, this Article examines various legal and policy mechanisms available to address environmental justice and environmental racism concerns about accessing and enjoying blue space. It concludes with recommendations for reforms to address systemic barriers established by generations of institutional racism.

This Article seeks to answer the following questions: What does the academic literature say about POC access to and use of blue space? What role, if any, does systemic racism and inequality play in creating barriers to access?

Most historical accounts of any water-race nexus focused on the Black experience, and there is little academic research studying the connection to water, or lack thereof, among other POC. Thus, this Article focuses on the Black experience of and connection to water, which includes the lack of access to blue spaces. Additionally, this Article demonstrates the need for more studies to evaluate the experience of other non-Black POC regarding access to blue spaces.

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It is impossible to separate racism from the many dimensions of social justice issues. In other words: racism is social justice is housing justice is environmental justice is environmental racism. Because of this intersectionality, no single tool as it stands now can alleviate the burden caused by systemic barriers to blue spaces.

POC do not have the same benefits conferred on white Americans who can more easily access blue spaces. As this Article explained, POC do not receive the health and wellness benefits derived from blue spaces because of barriers related to parking, transportation, and inequitable housing practices. POC do not receive the same sense of safety from discrimination that white Americans enjoy because of pervasive racism. And as a result, POC do not have equal opportunities to experience the same wondrous joy that comes from exploring natural, healing, blue space that many white Americans enjoy--and there are few possibilities for recourse.

However, in light of the established history of exclusion, discrimination, and racism, this Article provides an overview of some potential avenues of recourse for POC seeking to enjoy blue spaces. Although some of the common mechanisms are not as helpful as intended, others may be successful for some POC, including the public trust doctrine, the First Amendment, Title VI administrative complaints, public accommodations under Title II, and zoning reform. Additionally, the renewed promise of Title VI under the Biden Administration and the possibility of amendment under the Environmental Justice for All Act of 2022 (EJAA) hold promise by potentially reestablishing the disparate impact private right of action.

At a time in the country when there are stark lines drawn in the sand by race and prejudice, there is a growing understanding of the intersection between historical decisions, lasting impacts, and the need to remedy those impacts. The growing understanding of this intersectionality gives reason to hope that decisions around access to blue space can become more equitable using existing tools, as well as implore the creation of new more inclusive tools that honor these intersectionalities.

Sarah Martinez was the Sea Grant UW Water Science-Policy Fellow, Water Policy Specialist in the Center for Water Policy at the University of Wisconsin-Milwaukee's School for Freshwater Science from 2021 to 2022. She received her J.D. from the University of Utah's S.J. Quinney College of Law in 2021.