Over the past year, our nation has grappled with many of the disproportionate obstacles faced by Black communities. One obstacle that is rarely featured in the headlines and news reports that has become all too familiar is the disproportionate effect of climate change on the maternal health of Black women. That impact and the obstacles it creates are the focus of this article.
It is well established that climate change is significantly altering the environment and having severe impacts in the United States and abroad. As President Obama affirmed in 2015, “Climate change is no longer some far-off problem. It is happening here. It is happening now.” President’s Remarks at the GLACIER Conference—Anchorage, AK (Aug. 31, 2015).
Black mothers and infants are harmed by climate change at a much higher rate than the population at large. With regard to climate change impacts on Black maternal health, a 2017 study found that for every 10° increase in temperature in California, there is an average increase in preterm delivery of 8.6%, but for Black women that increase is almost 15%. Amanda King, At the Intersection of Climate Change and Environmental and Reproductive Justice, New Sec. Beat (July 29, 2020). “Black women have the highest risk of preterm delivery from heat,” according to Rupar Basu, the chief of Air and Climate Epidemiology Section at the Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency. Id.
In addition to the added risk associated with rising temperatures, living near areas with higher pollution increases the risk of lower birth weights and increases the risk of stillbirth by 42%. Emily DeFranco et al., Air Pollution and Stillbirth Risk: Exposure to Airborne Particulate Matters During Pregnancy Is Associated with Fetal Death (Mar. 20, 2015). Pregnant women exposed to high temperatures or air pollution are more likely to have children who are premature, underweight, or stillborn. The Centers for Disease Control and Prevention (CDC) reports that Black, American Indian, and Alaska Native mothers are already dying at two to three times the rate of white mothers from pregnancy-related causes. Press Release, CDC, Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths (Sept. 6, 2019). And the CDC also reports that Black infants are dying at twice the rate of white infants. Danielle M. Ely & Anne K. Driscoll, Infant Mortality in the United States, 2018: Data from the Period Linked Birth/Infant Death File, 69 Nat’l Vital Stat. Rep., no. 7, July 16, 2020.
This disparate impact is not surprising. A 1987 General Accounting Office report found that race was the most significant factor in determining whether an individual lives near a hazardous waste facility; and 20 years later, a 2007 report affirmed that race was still the most significant factor. Robert Bullard et al., Toxic Waste and Race at Twenty 1987–2007 (Mar. 2007). Living near such a facility is tied to a number of adverse effects on health, which disproportionately impact Black and brown communities. Increasing temperatures will only intensify those impacts and worsen the quality of life for those living near hazardous waste facilities or in other highly polluted areas.
The impacts of climate change on Black maternal health are exacerbated by other well-documented inequities: African Americans are not only more likely to live in polluted areas, they also are less likely to have adequate access to health care, air conditioning, and safe housing. Christopher Flavelle, Climate Change Tied to Pregnancy Risks, Affecting Black Mothers Most, N.Y. Times, June 18, 2020. The lack of adequate access to the very things that would assist in countering the effects of climate change only amplifies the problems. This accelerates the disproportionate impact of climate change on expectant Black mothers, leading to a higher percentage of infant mortality and to the birth of children who will suffer lifelong consequences as a result of low birth weights and premature deliveries. Babies born under these conditions are more likely to develop health conditions, which include intellectual and developmental disabilities, diabetes, heart disease, high blood pressure, and asthma. Ctrs. for Disease Control & Prevention, Premature Birth (2019). Studies have shown that people suffering from these health conditions are the most vulnerable to the impacts of climate change. All of these factors show that it is imperative that environmental justice efforts include a focus on the impacts of climate change on Black mothers and their children. I believe that, as environmental lawyers, we are called upon to look for creative solutions to address the disparities present in environmental protection and maternal health. The next few paragraphs outline a few possibilities.
Historically, plaintiffs in lawsuits based on climate change have used, among other things, the Equal Protection Clause of the Fourteenth Amendment in efforts to challenge disparities in environmental protection. The recent case Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), was no exception. What was notable about Juliana, however, was the acknowledgment by the Ninth Circuit that the impacts of climate change are real and serious, and that the government has known about them for decades. The court made significant factual findings that may provide a record and create opportunities for addressing the disproportionate impact of climate change on Black maternal health in future litigation.
Juliana was brought by 21 young plaintiffs (all under age 20) against the United States and numerous federal agencies for failing to adequately manage climate change. Among the plaintiffs’ claims were allegations that failed government environmental enforcement and protection violated their constitutional rights under the due process and equal protection clauses. The Ninth Circuit’s opinion acknowledged the fact that climate change is an existential threat to human health. Specifically, the court declared that “the record leaves little basis for denying that climate change is occurring at an increasingly rapid pace” and “this unprecedented rise will wreak havoc on the Earth’s climate if unchecked.” Nevertheless, the court dismissed the case for lack of standing and declared that, even accepting plaintiff’s claims as valid, plaintiffs’ claims could not be “redressed” because “it is beyond the power of a [federal] court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” Id. at 1172.
The dismissal of Juliana was predicted by many legal experts because the legislative and executive branches were perceived to be the appropriate venues for addressing climate change. However, the ostensible failure by the legislative and executive branches to meaningfully curtail the impacts of fossil fuels on climate change forced the plaintiffs in Juliana to resort to the judiciary for relief. And although the plaintiffs in Juliana did not prevail in the courtroom, they succeeded in taking a crucial step to any solution—raising awareness. The lawsuit successfully garnered the attention in the mainstream and electronic press, and it was featured in two segments of the television news magazine 60 Minutes. Moreover, the insight into the judiciary’s thoughts on the facts surrounding climate change, provided by the opinion in Juliana, is immeasurable. It is worth noting, however, that Juliana has limited applicability and may or may not reflect the views of the broader judiciary. Nevertheless, the plaintiffs in Juliana created a record that may provide opportunities to influence the executive and legislative branches of government to take action.
The first potential opportunity created by Juliana lies in the court’s willingness to acknowledge that climate change can indeed create an injury that is sufficient to meet one prong of the Article III standing requirement. Injuries such as scarcity of water for one plaintiff and flooding for another were concrete and particularized enough to satisfy Article III’s injury-in-fact requirement. This is reassuring to a potential class of expectant Black mothers who could point to specific injuries caused by the impacts from rising temperatures and other harms caused by climate change.
The second potential opportunity lies in the court’s validation of the plaintiffs’ claim that the injuries caused by climate change can be tied to the use of fossil fuels in the United States. This blueprint for satisfying the causation requirement for standing could be helpful to expectant Black mothers as they craft their basis for relief in future litigation. Studies such as the one cited above will help show that causal connection.
Finally, the court’s unwillingness to attempt to design or supervise a plan for the entire federal government provides guidance on the type of narrow relief that Black mothers will need to seek if they hope to convince a court to provide relief. One such type of relief could be in the form of an order for legislative or agency action specifically targeted to address the effects of rising temperatures and heat on Black maternal health.
According to Charo Valero, Florida State Policy Director of the National Latina Institute for Reproductive Justice, the “U.S. has no federal heat standards to protect workers.” King, supra. Legislation has been introduced in Congress to create a federal standard for protecting outdoor workers from exposure to dangerous heat and ensuring that immigrants, who account for the majority of farmworkers in the United States, receive health care services, including sexual, reproductive, and maternal health services. Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2019, H.R. 3668, 116th Cong. (2020). Heat legislation such as this, targeting the conditions many Black mothers are exposed to, could be a potential avenue for relief. Other legislation has also been introduced to address environmental impacts on maternal health, such as the Black Maternal Health Momnibus Act of 2020, H.R. 6142, 116th Cong. (2020), and the Social Determinants for Moms Act of 2020, which would mandate studies on the impact of water, air quality, extreme temperatures, and pollution on maternal and infant health outcomes. H.R. 6132, 116th Cong. (2020). In a future case, a claim for relief that is targeted, such as asking for legislation or regulations aimed at protecting maternal health outcomes, potentially could be narrow enough to survive a court’s scrutiny and garner support for legislative efforts already underway.
Whether it is addressed through the courts, Congress, state legislatures, or administrative agencies, the impact of climate change, and of rising temperatures in particular, on Black maternal health is a concern that deserves attention by the environmental justice community. According to Linda Golar Blount, president and CEO of the Black Women’s Health Imperative, “Race is not a risk factor, racism is a risk factor, and now we add a new stressor to that intersection—climate, specifically heat.” King, supra. Environmental justice efforts should highlight and focus on the issue of Black maternal health, and we should work now to help address this concern that will only increase as temperatures rise.