OVERLOOKED AND OVERBURDENED: UNINCORPORATED STATUS AND THE FINANCIAL INCENTIVES OF ENVIRONMENTAL INJUSTICE

Environmental injustice (the siting of polluting facilities) in unincorporated communities of color is not merely a result of bad actors but a foreseeable consequence produced and perpetuated by fragmented legal frameworks that delegate authority to local decisionmakers without accountability, especially in the absence of meaningful democratic representation or judicial review. The result is that county commissioners are incentivized to pursue hazardous land uses in these unincorporated communities through revenue-generating tools like hostfee compensation. This then leads to harm in low-income unincorporated communities of color while also denying them meaningful political power or legal recourse to combat these decisions due in part to their unincorporated status. In spotlighting this underexamined issue, this Note explores how county-level financial incentives, which derive from the siting of solid-waste landfills, unincorporated status, and state and local governance structures, reproduce inequality in environmental decisionmaking.

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* J.D. Candidate 2027, Columbia Law School. Yale School of the Environment, MEM. Auburn University, B.S. Agricultural Business and Economics. Articles Editor, Columbia Law Review. A huge thanks to Professor Jessica Bulman-Pozen for advising this Note and for her incredible insight. I am also immensely grateful to Professor Marianne Engelman-Lado, whose guidance and mentorship gave me the impetus for this Note. I would also like to thank Professor Michael Gerrard for his guidance and support; the editors of the Columbia Law Review, especially Claire Atkerson, Margaret Broihier, Adam Burns, Ryan Costley, Kal Golde, Ciarra Lee, Laurel Kruger, and Caleb Ringger for their diligent editorial work; Shay Borden and Olivia Chiu for their wonderful encouragement; and my family for their love and support. Most importantly, I am indebted to the residents of the Ashurst Bar Community, whom I met seven years ago and from whom I first learned of the community’s fight for environmental justice. I hope these words honor your story well.

“[W]e are only requesting the same rights anyone else in this country has: to live in an environment that is safe for our children and families and which provides a decent quality of life for its citizens.”
— Reverend Ronald C. Smith, 2016 1 Letter from Rev. Ronald C. Smith, President, Ashurst Bar/Smith Cmty. Org., to Russell A. Kelly, Chief, Permits & Servs. Div., Ala. Dep’t Env’t Mgmt. 4 (Nov. 15, 2016) (on file with the Columbia Law Review).

Introduction

Unincorporated communities are ever present but easily overlooked. 2 See Cristina Gomez-Vidal & Anu Manchikanti Gomez, Invisible and Unequal: Unincorporated Community Status as a Structural Determinant of Health, Soc. Sci. & Med., Sep. 2021, at 1, 2 (“Unincorporated communities are ubiquitous yet overlooked.” (citing Elizabeth Mattiuzzi & Margaret Weir, Governing the New Geography of Poverty in Metropolitan America, 56 Urb. Affs. Rev. 1086, 1087 (2020) (noting that counties often overlook the needs of the poor))). It is likely that many people drive through these communities unaware of their unincorporated status. Simply put, unincorporated communities are settled places on the periphery of incorporated city boundaries. 3 See Jameson Christopher Davis, Never Had a Chance: Understanding the History of How Low-Income and Predominantly Black Unincorporated Communities Evolved to Become Environmental Justice Communities Through State Annexation Laws and Procedures, 22 Vt. J. Env’t L. 71, 78 (2022) (noting that though unincorporated communities are “often economically tied to a larger town or city, [they] are excluded from participatory rights such as voting” (citing Michelle Wilde Anderson, Mapped Out of Local Democracy, 62 Stan. L. Rev. 931, 933 (2010))). They are communities that lack home rule. 4 Home rule is the legal authority granted by a state to a local government, giving it a degree of autonomy to govern its own affairs. This allows local governments, like counties, to establish their own charters and pass laws on local matters without needing state permission for each action. See Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1, 10 (1990) [hereinafter Briffault, Our Localism] (noting that state home rule provisions generally follow two models: 1) allowing the local municipality full police power over municipal affairs and some immunity from state interference (the original form); and 2) granting police powers subject to legislative authority to “restrict or deny localities a particular power or function”). That is, they are not governed by their own local municipal corporation but rather by a larger governmental body—in most cases a county. 5 See Davis, supra note 3, at 78 (stating that unincorporated communities are governed by a “larger governmental division, such as a township, county, city, or state” (citing Michelle Wilde Anderson, Dissolving Cities, 121 Yale L.J. 1364, 1368 (2012); Michelle Wilde Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. Rev. 1095, 1101 (2008))).

Many low-income rural communities are unincorporated, due to a history of segregation and fragmented legal regimes. 6 See Michelle Wilde Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. Rev. 1095, 1129–34 (2008) [hereinafter Anderson, Cities Inside Out] (highlighting that unincorporated areas “manifest the legacy of segregation expressed not only in terms of racial separation, but in terms of hierarchies of land quality and location,” as well as a “lack of . . . oversight” when compared to incorporated communities). This fragmentation makes it difficult for residents in these communities to combat the siting of toxic, polluting facilities. 7 See id. at 1123–24 (noting how unincorporated communities are disadvantaged by hazardous and undesirable land uses in their communities). And it makes it difficult for residents of unincorporated communities forced to host these facilities to bargain for some form of compensation (relief) for bearing the burdens of pollution. 8 See Teriana Moore, Pamela Payne-Foster, JoAnn S. Oliver, Ellen Griffith Spears, Christopher H. Spencer, Jacqueline Maye & Rebecca S. Allen, Community Perspectives and Environmental Justice Issues in an Unincorporated Black Township, Int’l J. Env’t Rsch. & Pub. Health, June 2022, at 1, 2 (“Living in an unincorporated city, residents often lack a political voice, have depreciated resources, and limited access to government officials to voice community needs.”). The financial benefits from hosting these facilities flow first through the county commissioners, the arbiters who decide what to site 9 Siting refers to the strategic process of selecting a suitable location for a facility or structure, such as a landfill. See Omar S. Arabeyyat, Nawaras Shatnawi, Mohammad A. Shbool & Ata Al Shraah, Landfill Site Selection for Sustainable Solid Waste Management Using Multiple-Criteria Decision-Making. Case Study: Al-Balqa Governorate in Jordan, MethodsX, June 2024, at 1, 2 (“Convenient Landfill Site Selection (CLSS) is based on several factors, including land slope, geography, land usage, climate, earthquakes, and distance from metropolitan areas and major highways.”). and where to allocate the fees collected from those sitings. 10 See Anderson, Cities Inside Out, supra note 6, at 1151 (spotlighting how counties depend on the financial incentives from undesirable land uses).

Environmental injustice in unincorporated communities of color, then, is not just the result of poor decisionmaking by local officials. Rather, it is a foreseeable consequence of disjointed legal frameworks intended to shore up authority without accountability, especially in the absence of meaningful democratic representation or judicial review. To shed necessary light on this neglected topic, this Note explores how county-level financial incentives, which flow from the combination of the siting of solid waste facilities, unincorporated status, and state and local governance structures, reproduce inequality in environmental decisionmaking.

Some scholars argue that providing different forms of monetary relief can benefit the “host communities” chosen as the site of landfills and other sources of pollution. 11 See Vicki Been, Compensated Siting Proposals: Is It Time to Pay Attention?, 21 Fordham Urb. L.J. 787, 788 (1994) [hereinafter Been, Compensated Siting Proposals] (urging those interested in environmental justice work to “devote greater attention to compensation proposals, and to begin either to articulate an intellectually rigorous critique of the proposals or to develop a strategy for shaping a compensation practice that is beneficial to the [environmental justice movement]”). Yet other scholars identify the challenges that host communities can face in accessing and negotiating compensation. 12 See Dorceta E. Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility 143 (2014) (“[O]ne cannot fully negotiate compensation if one does not know what can be negotiated for and with whom to negotiate.”). These challenges are especially apparent in low-income unincorporated communities of color, which lack the luxury of home-rule and political capital and, therefore, bargaining power. 13 See Gomez-Vidal & Gomez, supra note 2, at 5 (noting how the political exclusion in unincorporated communities causes loss of power over resources and other outcomes).

This is all the more apparent when the primary fiscal framework is host-fee compensation, which differs in a critical respect from the corporate–community bargaining frameworks that dominate much of the environmental justice literature. 14 Much of the environmental justice literature discusses compensation as it relates to corporate–community bargains under structures such as community benefit agreements (CBAs) and good neighbor agreements (GNAs). There is very little scholarship tracking the impacts of host-fee compensation on host communities, and of the literature that does exist, much of it is decades old. See Robin R. Jenkins, Kelly B. Maguire & Cynthia L. Morgan, Host Community Compensation and Municipal Solid Waste Landfills, 80 Land Econ. 513, 513–14 (2004) [hereinafter Jenkins et al., Host Community Compensation] (noting that the authors were aware “of only two studies that empirically examine[d] the determinants of host fee compensation at landfills and both focus[ed] exclusively on the state of Wisconsin”). Additionally, only a few works “describe case studies of host compensation paid by solid and hazardous waste facilities as well as by various other facilities.” Id. at 514. See generally Michael O’Hare, Lawrence Bacow & Debra Sanderson, Facility Siting and Public Opposition (1983) (studying facility siting and community opposition in New England); Been, Compensated Siting Proposals, supra note 11, at 788 (seeking to “spur greater attention to the difficult moral and political issues compensation proposals raise by showing that compensation programs are widespread in actual siting practice”); Jeffery J. Himmelberger, Samuel J. Ratick & Allen L. White, Compensation for Risks: Host Community Benefits in Siting Locally Unwanted Facilities, 15 Env’t Mgmt. 647 (1991) (analyzing negotiations over the siting of twenty-four solid-waste landfills in Wisconsin and finding that the level of compensation received was positively associated with the share of facility capacity dedicated to host community use and with poverty in the host area); Allen L. White & Samuel J. Ratick, Risk, Compensation, and Regional Equity in Locating Hazardous Facilities, 67 Papers Reg’l Sci. Ass’n 29 (1989) (examining the trade-offs among three critical determinants of the effectiveness of waste facility siting: spatial equity, host-fee compensation, and facility costs). Host fees are payments (cash or in-kind gifts) made by landfill companies to local governments to facilitate the siting, expansion, or transfer of landfills within their jurisdiction. 15 Jenkins et al., Host Community Compensation, supra note 14, at 513. Unlike community benefit agreements (CBAs) and good neighbor agreements (GNAs), which are primarily negotiated between the impacted community and the operator, 16 See infra section II.A. host-fee compensation arrangements are primarily set by statute and grant the local municipality (the county or town) the power to negotiate with the operator and to distribute those fees through the municipality’s budgeting process. 17 See infra section II.B; see also Jenkins et al., Host Community Compensation, supra note 14, at 514–15 (outlining the evolution of host-fee compensation). As this Note explains, the history of the formation of unincorporated communities and host-fee compensation work in tandem, keeping unincorporated communities at a legal and political disadvantage. 18 See infra section II.B; see also Gomez-Vidal & Gomez, supra note 2, at 5 (stating that absent the power to self-govern and requisite political capital, unincorporated communities are effectively left out of the decisionmaking process).

One community that confronts this situation is the Ashurst Bar/Smith community (“Ashurst Bar”), a small, unincorporated town founded by Freedmen during the Reconstruction period, situated in Tallapoosa County, Alabama. 19 See Case: LDF, Earthjustice and the Environmental Justice Law Clinic at Yale Fight Landfill in Historic Black Alabama Community, LDF (Mar. 14, 2018), https://www.naacpldf.org/case-issue/ldf-earthjustice-environmental-justice-law-clinic-yale-fight-landfill-historic-black-alabama-community/ [https://perma.cc/PZY4-SYP4] [hereinafter LDF, Case Report] (“Many residents of the Ashurst Bar/Smith community can trace their land ownership back multiple generations, some as far back as the era of Reconstruction following the end of de jure slavery.”). Ashurst Bar, a community that is over 90% Black, has long suffered from segregation, economic disinvestment, and environmental degradation. 20 See id. (stating that the community is 98% Black); Irina Zhorov, In One Alabama Community, Environmental Justice Is Hard to Find, WHYY (May 19, 2017), https://whyy.org/articles/for-one-alabama-community-environmental-justice-is-a-hard-road-to-hoe/ [https://perma.cc/9HAF-78HX] (highlighting the history of the socioeconomic and environmental issues the community has grappled with since the opening of the landfill in the 1970s). Since the early 1980s, the community has been fighting the Stone’s Throw Landfill, which has expanded numerous times, encroaching on land of Black landowners whose families have owned the land for generations. 21 See Rebecca Beitsch, Small Town vs. Big Pollution: Black Residents Allege Environmental Racism, Stateline (Oct. 1, 2018), https://stateline.org/2018/10/01/small-town-vs-big-pollution-black-residents-allege-environmental-racism/ (on file with the Columbia Law Review); Heather Kathryn Ross, Pulling the Land Out From Under Them, Earthjustice (Mar. 21, 2016), https://earthjustice.org/article/pulling-the-land-out-from-under-them [https://perma.cc/M38G-3LHQ].

This Note uses the Ashurst Bar community as a case study to unpack how the relationship between county governments and the unincorporated communities they govern reproduces inequality in environmental decisionmaking. It argues, among other things, that the siting of polluting facilities in unincorporated communities of color is due to legal regimes that delegate environmental authority to county commissioners who do not have the best interests of the unincorporated community at heart. Further, the revenues that flow from the siting of polluting facilities, like solid waste landfills, incentivize county commissioners to continually permit undesirable land use in places like Ashurst Bar. As such, a given county is neither incentivized nor required to devote any portion of this compensation to communities similar to Ashurst Bar themselves. In this way, the impacts of unrepresentative democracy and the politics of pollution incentivize harm in these locales, diluting their political power and narrowing the avenues to legal recourse.

This Note proceeds in three Parts. Part I offers a grounding discussion on unincorporated communities generally—and specifically the Ashurst Bar community and its continued fight for environmental justice. Part II discusses forms of compensation communities typically receive from the siting of a solid waste facility. It analyzes the role of hostfee compensation and its impact on unincorporated communities, using Ashurst Bar as an example. Finally, Part III lays out transformative possibilities to make host-fee compensation more centered on and responsive to host communities, as well as altogether more robust. Most importantly, this Note gives voice to the unheard narrative of a community that remains on the periphery of justice.