New Article: Misbah Husain and Melissa K. Scanlan, Disadvantaged Communities, Water Justice & The Promise of The Infrastructure Investment and Jobs Act, 52 Seton Hall L. Rev. 1513 (2022). Abstract below:
On January 27, 2021, President Biden issued Executive Order 14,008, known for its establishment of the “Justice40 Initiative,” a government-wide effort to channel 40 percent of the overall benefits of federal investments to “disadvantaged communities.” This order acknowledges the historic over-burdening of disadvantaged communities nationwide, and outlines a plan to correct it in consultation with members of these communities. In keeping with the spirit of this initiative, the 2021 Infrastructure Investment and Jobs Act (“the Infrastructure Law”) prioritizes disadvantaged communities when allocating more than $50 billion over five years to finance water infrastructure projects nationwide—the single largest amount ever invested for this purpose.
The Infrastructure Law aims to bolster the nation’s water infrastructure by reauthorizing funding for existing programs such as the State Revolving Fund (“SRF”) program, directing the creation of new grant programs for waste and storm water infrastructure, and adjusting program requirements to expand opportunities to further support disadvantaged communities. Pursuant to this law, the federal Environmental Protection Agency (“EPA”) will disburse nearly $43.5 billion to states, tribes, and territories to support their SRF programs. Over the next five years, the EPA will distribute these funds to support clean water and safe drinking water programs. The Infrastructure Law requires 49 percent of “supplemental funding” for clean and drinking water infrastructure be given as forgivable loans and grants to disadvantaged communities. The EPA will be working with states, tribes, and territories to evaluate and revise their affordability criteria and definitions of “disadvantaged communities,” as needed.
Although these reforms offer golden opportunities to promote environmental justice across the country, a key question remains: Which communities are considered “disadvantaged” and are thus eligible for funding priority? This Article contextualizes this discussion through an overview of environmental justice concerns related to water infrastructure, outlines the ways that the Infrastructure Law supports the development of water infrastructure, and discusses the interpretation of the term “disadvantaged communities” as utilized in the Infrastructure Law to inform how funding might be prioritized for water infrastructure programs. Lastly, it explains how Title VI of the Civil Rights Act may be used by disadvantaged communities to secure additional funding as the Infrastructure Law is implemented. Under Title VI, the EPA is responsible for ensuring that federal funds are “not being used to subsidize discrimination based on race, color, or national origin.”
Poverty Law 