Prisoner (In)consideration in Environmental Justice Analyses
By Nathalie Prescott
In October 2015, health officials in Flint, Michigan issued a public health declaration urging residents not to drink the city’s tap water after tests showed high lead levels in children’s blood. The city had switched tap water sources in April 2014 from Lake Huron by way of Detroit to the Flint River to save money. For more than a year, residents had been complaining about rashes, bacterial concerns, and the water’s smell and taste with no relief from the government, even after General Motors stopped using the water in its plants, citing corroded parts. It was not until January 2016 that Governor Rick Snyder declared the toxic water had led to a state of emergency for the county surrounding Flint, and began distributing bottled water and filters to residents.
While filters and bottles were not distributed until January, most residents at least had the option to limit their city water intake after the water became visibly tainted or when the original health declaration was issued in October. Inmates—including pregnant women—at Flint’s County Jail, however, had no option but to drink, shower, and make food with the contaminated city water. The jail briefly handed out bottled water in October, but then stopped just days later, even while corrections officers refused to drink the city water. It reverted to bottled water again in January with the state of emergency declaration, but as of March it has been relying entirely on donations for the inmates.
1. The Problem
Flint’s water crisis is just one recent illustration of the serious environmental hazards that plague prison populations. Prisons are well-known for contributing pollution to their surrounding environments, but the opposite is true too. Previously tainted environments that become new prison sites seriously affect prisoner health and wellbeing, especially since these facilities are often built on land that nobody else wants, like abandoned mines, toxic waste sites, or military bases.
For instance, one Colorado prison is located just six miles from a Superfund site that originally housed a uranium mine. The site is upwind of the prison, putting inmates in the path of radium, uranium, and thorium gusts. Contaminated mine water was rerouted into a ditch that regularly overflowed into the prison’s water supply. Chronic uranium intake has been linked to cancer, liver damage, and kidney disease, along with pain, swelling, inflammation, and joint deformities. The BOP expressed concerns about water pollution during construction in the 1980s, but a new supply was not secured until more than thirty years later.
Another example is New York’s well-known Rikers Island Correctional Facility—it was built on top of a toxic landfill that still emits noxious methane gas. A few hundred feet away, LaGuardia Airport planes take off and spew harmful nitrogen oxides and sulfur oxides over prisoners’ heads along with attendant noise pollution, which has been linked to neurosis and other mental disorders.
Prisoners are also particularly vulnerable to climate change effects. Rising outside temperatures combined with overcrowded facilities, which increases heat from sheer body temperature, can cause dangerous health issues. Excessive heat has already caused illness and death at several Texas and Louisiana prisons. And a recent climate change study showed that warming temperatures coincide with more frequent interpersonal violence and intergroup conflict.
Climate change is also linked to extreme weather and flooding, exemplified by the 2005 Hurricane Katrina disaster in Louisiana and Texas’s 2009 Hurricane Ike. Prison populations can face extremely hazardous conditions when major storms hit. More than 600 Louisiana inmates were stuck in cells for several days with chest-level water during Katrina; thousands were left without electricity or uncontaminated water for days in Texas during Ike.
Prisons also frequently contribute to negative social effects on prisoners. For instance, since prisons are disproportionately located in rural, majority white areas, all white staff is often in charge of majority black prisoners. The extreme racial disparities between prisoners and staff heighten tensions by inserting a cultural gulf, which reached a boiling point, for example, in the 1971 Attica Prison rebellion. Thirty-two prisoners and eleven guards were killed in the incident and the BOP identified racial disparities as one of the causes, and yet these racial disparities have not improved today. There are still other concerns with siting prisons in rural areas—for example, isolating prisoners from society impedes re-integration, as does increasing their distance from home.
2. Prison Construction, NEPA, and Executive Order 12,898
Prisoners do not choose where they live, they cannot choose to leave, and they have no voice when it comes to the foundational question of where a prison is to be constructed. Instead, these decisions are left to the government. Federal law requires agencies like the Bureau of Prisons (BOP) to analyze the impacts of their actions—like constructing a new prison—on the human environment prior to making decisions. In particular, these analyses, or Environmental Impact Statements (EISs), must consider environmental impacts on minority and low-income individuals, and prison populations are notoriously skewed towards these groups. Despite this mandate, prisoners have never been considered in any new prison construction EISs.
Several federal rules concern EISs as they relate to prisoners and new prison construction. First, the National Environmental Policy Act (NEPA) is the statute requiring federal agencies to be informed about possible environmental impacts of their proposed major actions. The BOP triggers NEPA requirements when it decides to construct a new prison. It must draft an EIS that evaluates the “ecological, aesthetic, historic, cultural, economic, social, or health” effects of the prison on the surrounding community, and offers proposed alternatives or mitigation measures designed to reduce those effects. Drafts and final versions of the EIS are subject to public notice and comment, and the BOP must respond to every substantive public comment by either adjusting its analyses or explaining why it did not.
Second, new prison EISs must also meet the obligations of Executive Order 12,898 (the Order), which requires the BOP to conduct an environmental justice analysis identifying and addressing any “disproportionately high and adverse human health or environmental effects [of constructing the new prison] . . . on minority populations and low income populations.” President Clinton issued the Order in 1994, largely as a response to a 1987 study confirming a history of “environmental racism,” or the reality that minorities see extreme inequities in the distribution of environmental burdens and benefits. The Order was designed to eliminate or at least reduce these inequities, although it was weakened by a provision explicitly precluding judicial review.
NEPA and the Order do not to force the BOP to make any particular decision about its proposed prisons—instead they simply require the agency to be informed about the effects of that decision, particularly effects on low income and minority populations.
Even though NEPA is simply an information-based scheme, it has seen substantial success in protecting human health and the environment. According to the Natural Resources Defense Center, NEPA leads to better outcomes “because informed public engagement often produces ideas, information, and even solutions that the government might otherwise overlook.” Bolstering the public information scheme is the threat of judicial review—agencies take public involvement seriously because of the prospect of litigation. There are multiple examples of NEPA’s effectiveness in making government responsive, leading to agency decisions that improve social, human, and environmental health.
Unfortunately, the Order has not seen the same success, possibly because of its status as a non-reviewable executive order. A twenty-year status report in 2014 found that the Order has never been fully implemented, people’s health is determined by zip code, and race and poverty still predict the location of toxic facilities, pollution, and access to healthy foods. While there have been a few success stories, much room for improvement remains. This improvement should include environmental justice analyses for prisoners in prison construction EISs.
3. Prisoners Must be Considered in Environmental Justice Analyses
It is astonishing that the very individuals most affected by new prison construction—prisoners themselves—have historically “never taken its prisoner population into consideration under [EIS environmental justice analyses].” This is true even while prisoners are overwhelmingly made up of the exact populations targeted in the Order—minority and low-income individuals.
By the end of 2014, the U.S. incarcerated population rang in at 1,561,500 prisoners held in state and federal custody. Twenty-four percent of the male prisoner population was Hispanic and over forty percent was black, even though black men make up only around thirteen percent of the male population as a whole. Prisoners’ median annual incomes prior to incarceration were forty-one percent less than similarly aged non-incarcerated people. And the median educational level of incarcerated people fell short of even a high school diploma. These statistics should serve as hooks for analyzing the environmental effects of prisons on prisoners themselves. Failing to consider them in prison construction EISs flies in the face of the Order’s requirements.
One argument against including prisoners in EIS analyses could be that the NEPA process is traditionally only used to analyze impacts on the existing community since other laws apply to prisoners once they are incarcerated. The U.S. Department of Housing and Urban Development (HUD), however, drafts EISs for agency actions similar to prison construction, like proposed multi-family residences. HUD’s regulations specifically require it to comply with NEPA and the Order, among other authorities and standards. In stark contrast to BOP EISs, HUD’s analyses must identify and assess the effects of the residences on future occupants.
For instance, “all property proposed for use in HUD programs [must] be free of hazardous materials, contamination, toxic chemicals and gasses, and radioactive substances, where a hazard could affect the health and safety of occupants.” The review must evaluate previous uses of the site, evidence of contamination, and proximity to landfills, industrial sites, or hazardous waste. HUD’s EIS guidance further emphasizes considering factors for occupants like adequate access to healthcare, social services, and schools; minimizing man-made and natural risks; and evaluating previous site contamination.
Future occupants of proposed HUD residences are amply considered in environmental justice sections of EISs, and the same should be true for future occupants of proposed prisons. The Order’s status as a presidential executive order and its provision prohibiting judicial review have likely contributed to inadequate compliance by the BOP concerning prisoners. Beginning with the most effective, several changes that could be made to strengthen the Order might include: (1) the Order could be passed as a law by Congress, (2) agencies could issue regulations or guidance for prisoner inclusion, or (3) the provision prohibiting judicial review could be dropped from the Order. Analyses of these possibilities, however, are beyond the scope of this article.
Regardless, prisoner populations still comprise the same low income and minority individuals targeted in the Order. Therefore, the BOP is still required to include prisoners in environmental justice analyses for prison construction EISs, and should immediately begin doing so. This inclusion will allow agencies to be better informed about the adverse environmental health effects prisons have on incarcerated individuals, and as a result, will hopefully lead to reductions or mitigations of these effects.
 Jeremy C.F. Lin, Jean Rutter & Haeyoun Park, Events that Led to Flint’s Water Crisis, The New York Times, http://www.nytimes.com/interactive/2016/01/21/us/flint-lead-water-timeline.html (last visited Apr. 14, 2016). A little more than two weeks later, the city reconnected to the original Detroit-Lake Huron water supply. Id.
 Julia Lurie, A Toxic Timeline of Flint’s Water Fiasco, MotherJones (Jan. 26, 2016), http://www.motherjones.com/environment/2016/01/flint-lead-water-crisis-timeline. Independent testing showed Flint River water to be nineteen times as corrosive as the water from Detroit. This corrosiveness stripped lead from the pipes, which cause city water lead levels to spike. One woman’s tap water contained lead levels at more than 13,000 parts per billion, twice as high as EPA’s classification of hazardous waste. There is no “safe” level of lead, and only fifteen parts per billion is enough to initiate an enforcement action. Id.
 Id. Even worse, internal emails show Snyder’s office was aware of serious health concerns linked to the Flint River water source ten months earlier in March 2015. Panagioti Tsolkas, Prison Ecology and the Flint Water Crisis, Prison Ecology (Feb. 18, 2016), http://nationinside.org/campaign/prison-ecology/posts/prison-ecology-and-the-flint-water-crisis/.
 Democracy Now!, Exclusive Report: How Long Did Flint’s County Jail Inmates Drink Poisoned Water? (Feb. 4, 2016), http://www.democracynow.org/2016/2/4/exclusive_report_how_long_did_flints. In a sick twist, lead exposure in young people has been linked to violent crime, along with lower IQs and ADHD. Essentially forcing prisoner exposure to lead could increase the chances they will end up right back in jail. See Kevin Drum, Lead: America’s Real Criminal Element, MotherJones (Feb. 11, 2016 6:58 PM EST), http://www.motherjones.com/environment/2016/02/lead-exposure-gasoline-crime-increase-children-health.
 Id. According to a released inmate, the jail handed out only four twelve-ounce bottles of water per person each day, less than half of the Institute of Medicine’s daily recommended amount for men. Id.
 Gary Ridley, Inmates Suing Over Water Quality at Flint Jail, MLive Michigan (Mar. 9, 2016), http://www.mlive.com/news/flint/index.ssf/2016/03/inmates_file_lawsuit_demanding.html.
 “Flint isn’t the first city to ignore its inmates. After a catastrophic chemical spill in West Virginia in 2014, prisoners in Charleston were forgotten during the state of emergency issued by Gov. Earl Ray Tomblin. Forced to drink contaminated water — including water from the toilet — inmates had multiple health problems: headaches, chest pains, respiratory problems, and trouble with eyesight. But people who reported their ailments were thrown into solitary confinement.” Carima Townes, Flint Inmates Lied To About Water Crisis, Forced To Drink Lead Water, ThinkProgress (Feb. 4, 2016), http://thinkprogress.org/justice/2016/02/04/3746154/flint-inmates-forced-to-drink-tap-water/.
 Overcrowded and aging prisons often leak dangerous effluents into adjacent waterways and community water supplies, and are common sources of air pollution for surrounding communities. An Alabama prison system, for instance, has been pumping “extremely high levels of toxic ammonia, fecal coliform, viruses, and parasites into local streams and rivers” since 1991, contributing to algae blooms, killing aquatic plants and animals, and rendering water unfit for human recreation. See John Dannenberg, Prison Drinking Water and Wastewater Pollution Threaten Environmental Safety Nationwide, Prison Legal News (Nov. 15, 2007), https://www.prisonlegalnews.org/news/2007/nov/15/prison-drinking-water-and-wastewater-pollution-threaten-environmental-safety-nationwide/ (containing multiple examples from prisons in seventeen states where water polluted from prisons harmed human health and the environment).
 Mike Ludwig, Federal Agencies Ignore Environmental Health Risks for Millions of Prisoners, Truthout (July 15, 2015), http://www.truth-out.org/news/item/31908-federal-agencies-ignore-environmental-health-risks-for-millions-of-prisoners.
 Laura Cepero, Toxic Traps: Environmental Hazards Threaten Two Federal Supermax Prisons, Prison Legal News (Oct. 26, 2015), https://www.prisonlegalnews.org/news/2015/oct/26/toxic-traps-environmental-hazards-threaten-two-federal-supermax-prisons/. A Superfund site is —“a polluted location requiring long-term cleanup of environmental and health hazards.”
 Dashka Slater, Prison Ecology, Sierra Club Magazine (Nov./Dec. 2015), http://www.sierraclub.org/sierra/2015-6-november-december/grapple/prison-ecology.
 See Brentin Mock, The Cruel, Increasingly Usual Prison Punishment No One is Talking About, Grist (Oct. 6, 2014), http://grist.org/climate-energy/the-cruel-and-increasingly-usual-punishment-of-prison-heat-islands/.
 Brentin Mock, How Global Warming Makes Overcrowded Prisons Even More Dangerous, The Atlantic CityLab (Sep. 25, 2015), http://www.citylab.com/weather/2015/09/how-global-warming-makes-overcrowded-prisons-even-more-dangerous/407173/.
 See Solomon M. Hsiang, et al., Quantifying the Influence of Climate on Human Conflict, 341 Science 1212 (2013).
 Infographic: Prison and Climate Change, #FLOODtheSystem (2015), http://floodthesystem.net/infographic-prison-and-climate-change/.
 Id. “. . . [W]hen then Mayor Bloomberg was asked about the safety of folks held at Rikers [Correctional Facility], before [Superstorm] Sandy: ‘Rikers Island, the land is up where they are and jails are secured. Don’t worry about anybody getting out.’” Id.
 Peter Wagner & Daniel Kopf, The Racial Geography of Mass Incarceration, Prison Policy Initiative (July 2015), http://www.prisonpolicy.org/racialgeography/report.html. Over two hundred counties house prisons where “the portion of the prison that is Black is at least 10 times larger than the portion of the surrounding county that is Black.” Id.
 Peter Wagner & Rose Heyer, Thirty-Two Years After Attica: Many More Blacks in Prisons but Not as Guards, Prison Policy Initiative (Sept. 25, 2003), http://www.prisonpolicy.org/blog/2003/09/25/alternet/; Rachel Gandy, In Prison, Blacks and Latinos do the Time while Whites Get the Jobs, Prison Policy Initiative (July 10, 2015), http://www.prisonpolicy.org/blog/2015/07/10/staff_disparities/.
 Wagner, supra note 25.
 Id.; Gandy, supra note 25; see also Housing DC Felons Far Away From Home: Effects on Crime, Recidivism and Reentry: Hearings before the Subcomm. on Federal Work Force, Postal Service and District of Columbia of the H. Comm. on Oversight and Governmental Reform, 111th Cong. (May 5, 2010), https://oversight.house.gov/wp-content/uploads/2012/01/20100505fornaci.pdf.
 See 42 U.S.C. § 4321 et seq. (1969); 40 C.F.R. Parts 1500-1508; Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12,898 (Feb. 16, 1994).
 See 42 U.S.C. § 4321 et seq. (1969); 40 C.F.R. Parts 1500-1508.
; 28 C.F.R. Part 61 app. A at 8(1).
 Council on Envt’l Quality, A Citizen’s Guide to the NEPA 2 (Dec. 2007).
 Id. at 8; NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government, The Environmental Law Institute 6 (Aug. 2010), https://ceq.doe.gov/nepa_information/NEPA_Success_Stories.pdf. The BOP has at least responded once to to a public EIS comment about including prisoners. The Human Rights Defense Center recently commented on an EIS for a new federal prison that is to be sited at a former mountaintop-removal coal mine, raising environmental justice concerns about the absence of prisoner consideration in the EIS. See Panagioti Tsolkas, Mass Incarceration v. Rural Appalachia, Earth Island Journal (Aug. 24, 2015), http://www.earthisland.org/journal/index.php/elist/eListRead/mass_incarceration_vs._rural_appalachia/. In response, the BOP stated that it “does not concur with the assertion that federal inmates of mixed backgrounds (as to ethnicity, race, and income) to be housed in the proposed facilities constitute either a minority or low income population for purposes of EO12898.” The agency did not provide any demographic information or analysis of documented long-term health problems associated with mountaintop-removal sites. Bureau of Prisons, Final Environmental Impact Statement for Proposed United States Penitentiary and Prison Camp: Letcher County, Kentucky E-42 (July 2015).
 Exec. Order No. 12,898 § 1-1 (Feb. 16, 1994). Guidance documents direct agencies to consider cumulative and indirect impacts on the target groups, and lists factors to consider in these analyses, like geography allowing pollutant accumulation, individual healthcare access, possible exposure to toxic pollutants, literacy rates, community identification, and non-inclusive decision-making processes, among many others. Council on Envt’l Quality, Environmental Justice: Guidance under the National Environmental Policy Act 9 (1997); U.S. Envt’l Protection Agency, Final Guidance for Incorporating Environmental Justice Concerns into EPA’s NEPA Compliance Analyses Exhibit 3 (1998).
 Haydn Davies, From Equal Protection to Private Law: What Future for Environmental Justice in U.S. Courts?, 2 Brit. J. Am. Legal Stud. 163, 164-65 (2013). “Whether by conscious design or institutional neglect, communities of color in urban ghettos, in rural ‘poverty pockets,’ or on economically impoverished Native-American reservations face some of the worst environmental devastation in the nation.” Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated, Mar. 29, 2016) (quoting Dr. Robert Bullard). The term “environmental racism” was originally coined in 1987 by Benjamin F. Chavis, the Executive Director of the United Church of Christ Commission for Racial Justice, who used it to refer to the siting of toxic waste landfills in communities of color. See Robert D. Bullard, et al., Toxic Wastes and Race at Twenty: 1987—2007 vii (Mar. 2007).
 Exec. Order No. 12,898 § 6-609 (Feb. 16, 1994). Executive orders, while valid instruments of Presidential authority, only have the force and effect of law if “the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.” Vivian S. Chu & Todd Garvey, Cong. Research Serv., RS20846, Executive Orders: Issuance, Modification, and Revocation 1 (2014). A recent study found substantial inconsistencies in the way courts consider the legality and substance of executive orders. See Erica Newland, Executive Orders in Court, 124 Yale L.J. 2026 (Apr. 2015).
 See NEPA Success Stories, supra note 32.
 Id. at 7.
 See id.
 See generally Newland, supra note 35.
 See Albert Huang, The 20th Anniversary of President Clinton’s Executive Order 12898 on Environmental Justice, Nat’l Res. Def. Council (Feb. 10, 2014), https://www.nrdc.org/experts/albert-huang/20th-anniversary-president-clintons-executive-order-12898-environmental-justice; see also Sandra George O’Neil, Superfund: Evaluating the Impact of Executive Order 12898, 115 Envt’l Health Perspective 1087, 1087 (2007) (“Findings suggest that despite environmental justice legislation, Superfund site listings in minority and poor areas are even less likely for sites discovered since the 1994 Executive Order.”).
 See Rita Harris, A Witness to Environmental Justice Over 20 Years, Sierra Club (Feb. 26, 2014), http://www.sierraclub.org/compass/2014/02/witness-environmental-justice-over-20-years.
 Human Rights Defense Center, Comment on the inclusion of prisoner populations in EPA’s Draft Framework for EJ 2020 Action Agenda, 3 (July 14, 2015).
 See Bureau of Justice Statistics, Prisoners in 2014, U.S. Department of Justice (Sept. 2015), http://www.bjs.gov/content/pub/pdf/p14_Summary.pdf [hereinafter Prisoners in 2014]; QuickFacts: United States, U.S. Census Bureau; Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-Incarceration Incomes of the Imprisoned, Prison Policy Initiative (July 9, 2015), http://www.prisonpolicy.org/reports/income.html.
 See Prisoners in 2014, supra note 44 (not including jail populations). This number represents twenty-five percent of the world’s prisoners, even though the US only makes up five percent of the global population. Simran Khosla, This Map Shows You Just How Many Prisoners are in Each US State, GlobalPost (Jan. 4, 2015), http://www.globalpost.com/dispatch/news/regions/americas/united-states/141226/map-US-prison-population-compared-international. Many southern states even have “more people living in prisons than on college campuses.” Christopher Ingraham, The U.S. Has More Jails than Colleges. Here’s a Map of Where Those Prisoners Live, The Washington Post (Jan. 6, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/01/06/the-u-s-has-more-jails-than-colleges-heres-a-map-of-where-those-prisoners-live/.
 See Prisoners in 2014, supra note 44.
 Rabuy, supra note 44.
 24 C.F.R. § 50.42.
 See 24 C.F.R. §§ 50.1, 50.4.
 See U.S. Dept. of Housing and Urban Dev., Environmental Assessment Factors Guidance, https://www.hudexchange.info/resources/documents/Environmental-Assessment-Factors-Guidance.pdf (last visited May 2, 2016) [hereinafter HUD Guidance].
 24 C.F.R. § 50.3(i)(1).
 24 C.F.R. §§ 50.3(i)(2), (3).
 HUD Guidance, supra note 51, at 15-16. HUD and EO 12898: “Site and neighborhood standards are intended to prevent the use of HUD assistance in a manner that perpetuates or exacerbates segregation or that exposes residents to environmental or health hazards.” U.S. Dept. of Housing and Urban Dev., 2012-2015 Environmental Justice Strategy 8 (Mar. 30, 2012).