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Melissa Harris-Perry: This is The Takeaway with Melissa Harris-Perry. In one of his first actions after assuming office, President Biden signed an executive order with the explicit purpose of acknowledging and addressing how environmental racism has devastated the economic and human health of Black, Latino, and Indigenous communities. Here's the president when he signed the order last January.

President Biden: "With this executive order, environmental justice will be at the center of all we do, addressing the disproportionate health and environmental and economic impacts on communities of color - so-called fenceline communities - especially those communities. Brown, Black, Native American, poor whites."

Melissa Harris-Perry: Now the administration sounds a little different as the White House introduces their Justice40 system. Justice40 is an initiative to identify and provide disadvantaged communities with 40% of overall climate and clean energy benefits, and with federal investments. While this initiative is supposed to address environmental racism, race is absent from the formula being used to identify these disadvantaged communities. White House officials have said that they're taking this approach in order to avoid possible legal challenges.

For more on this, I'm joined by Sheila Foster, Professor of Law and Public Policy at Georgetown University, and co-author of From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement. Welcome to The Takeaway, Professor Foster.

Professor Foster: Thank you for having me. It's so wonderful to be here.

Melissa Harris-Perry: Let me start with the big debated question. Can race-neutral policies produce racially-just outcomes, especially when it comes to environmental policy?

Professor Foster: Well, that's a really good question, and I think we don't know the answer to that question. It is true that race-neutral policies, and policy changes in particular, have often been used to address environmental or racial injustice. For example, we know that because of a long history of exclusionary zoning, particularly in suburbs, that many racial minorities, and in particular African Americans, have been shut out of some of the most desirable places to live. We see right now that some local governments and even states are trying to do away with single-family zoning. That's an example of a race-neutral policy that is trying to get at a long history of racial injustice.

One problem in the environmental justice context, however, is that so many instances of race discrimination in the past, be that redlining or housing discrimination or urban renewal policy where we put highways that resulted in segregated communities, that there's a complex interaction of those race-specific policies that have created these communities that are incredibly vulnerable to the placement of hazards or where children, for instance, are overexposed to lead in the homes because of substandard housing. It's very difficult sometimes to get it; the long and complex history of those policies that have interacted over a long period of time with a race-neutral solution.

Melissa Harris-Perry: I know that there must be some listeners who are wondering now, is this really race or is this really an issue of economic disadvantage, and that race just has a tendency to coincide with it as a kind of comorbidity? On this point, I want to play for you a bit of a conversation that Robert Bullard, one of the foundational scholars in this field, had last year on the PBS show, Amanpour & Company. Let's take a listen.

Robert Bullard: "Everybody produces garbage but everybody doesn't have to live next to the landfill. It was not just a poverty thing. The subject of the lawsuit was a middle-class Black neighborhood of homeowners. 85% of the people own their homes, and so it was not a poverty park, it was not a ghetto. This was a solid middle-class neighborhood of houses and people and trees."

Melissa Harris-Perry: I want to come to this. Professor Foster, does your research reinforce Professor Bullard's contention here that race is the primary driver of these troubling land uses?

Professor Foster: Yes. I think evidence from a number of researchers, including Dr. Bullard, and others have consistently shown that race is the strongest predictor holding constant every other factor, including economics, in where waste facilities, where other environmental hazards are placed, and frankly where we see a lack of environmental amenities like parks, for instance. Race is most certainly the driving factor. There's at this point very little, if no doubt, about that empirically.

Melissa Harris-Perry: Then help me to understand the law here. If race is not just sort of comorbid with but looks like it's driving, then why would there be a concern that there could be legal challenges to a race-specific attempt to address these harms?

Professor Foster: I think for two reasons. Number one is that the Biden administration's policies that specifically use race as a factor, if not the primary factor, to address past injustices such as for Black farmers have been challenged and tied up in court, so I think they become a little gun shy. Secondly, as many of your listeners probably know, the US Supreme Court has accepted an affirmative action case that they'll be reviewing in the coming months.

The question in that case is whether race can be one factor in an admissions process in which a university is trying to decide what the best student body looks like for themselves, taking into account a number of factors. If the Supreme Court says that race cannot be a factor, then what that means is that any effort to be explicitly conscious of race in public policy becomes constitutionally suspect.

Melissa Harris-Perry: We obviously don't have that ruling yet, but the very fact that they've taken it up, that's part of what they're signaling here to the administration?

Professor Foster: I think that's right. A number of years ago, Justice Sandra Day O'Connor, in the last major affirmative action ruling in higher education, said that universities can use race without falling under too much constitutional suspicion. That she thought, and a majority of the court signed on to this opinion, that we needed maybe 25 more years of affirmative action. Then after that, she implied at least that the court might revisit it. Here we are more than 25 years later.

One has to wonder why would the court have taken this case if they were not in the posture of really wanting to revisit the legitimacy of being race-conscious? That's not to say using race is the only factor. Just simply acknowledging that race should be and is a factor when we're making public policy either to address past injustices, as in the case of the African American farmers and environmental justice, or in the case of university admissions to create a better future that's more diverse.

Melissa Harris-Perry: Let's take a quick break. Don't go away. This is The Takeaway.

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Melissa Harris-Perry: You're back with The Takeaway. I'm Melissa Harris-Perry, and we're talking about the Biden administration's decision to pursue a discursively race-less approach to addressing environmental racism. Still with us is Sheila Foster, Professor of Law and Public Policy at Georgetown University. Professor Foster, you've name-checked the Black farmers a piece a few times. I just want to point out to folks on Monday The New York Times did publish a piece addressing the story.

We've been following it pretty closely here at The Takeaway, and it is about white farmers continuing to stall the promised relief for Black farmers because Black farmers had been experiencing years of discrimination at the hands of the USDA. Do you see the Biden administration therefore, in this environmental justice framework, just trying to say, "All right, let's forestall a similar fate for our Justice40 initiatives"?

Professor Foster: I don't know that explicitly, but I think that in some of the news releases it seems to me that that's one of the factors that seems to be in the background of this decision. The other thing I would say is that they're using this screening tool, which is called the Climate and Economic Justice Screening Tool, which is a tool that's been used by many states and also the EPA to try to identify environmentally vulnerable communities.

It's a multi-factor tool. There's something very similar used in the climate context. It's called the Social Vulnerability Index. That tool tries to use a number of indicators such as class, race, access to a car, for instance, the quality of housing, access to health care, to identify the communities that are most apt to experience. Either climate impacts in some cases, or that have already been overburdened with environmental hazards and toxins.

This is a well-utilized tool. The difference here is that the administration has removed race as an indicator in this tool. Because of the ways that race does intersect with other factors, they're hoping to be able to identify these communities using these other - let's call them intersectional factors - without the use of race to avoid problems down the road and the kind of legal challenges that they're facing with Black farmers.

Melissa Harris-Perry: I get it. It's not just a blunt tool of if you're a Black, brown, Indigenous community you're in, if you're a white community you're out. I get that, but I guess I am genuinely concerned about the removal of that variable despite the fact, again, that it confounds with all of these others because, as you pointed out, we have decades of research suggesting that in fact race does drive, is critically important here. I'm thinking even about public health disparities, maternal mortality, for example, which really isn't explained by poverty and isn't explained by insurance status. It is something that's going on on the issue of race, and how racialized bodies are being addressed.

Professor Foster: Yes. I agree with you. It's really disturbing. I mean, we've seen this in, for instance, COVID, right? Not only were Black and brown communities more exposed and/or more apt to become sick and to become hospitalized, but there was a study that showed a very high correlation between those communities and poor air pollution, which made them more vulnerable to COVID. This has compound effects when you don't consider the ways that these communities have been rendered vulnerable by race-specific actions in the past.

The same with Flint, Michigan in the Flint water crisis, with lead in the pipes. That was not just an economic issue. There was a clear, reckless disregard of that community.

Melissa Harris-Perry: Sheila Foster is a Professor of Law and Public Policy at Georgetown University. Professor Foster, thank you for being here.

Professor Foster: It's been my pleasure. Thank you for having me.

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