Glenn Towery had already served 11 years for stealing a car at gunpoint when he was transferred to Kern Valley State Prison in 2009. Riding up I-5 to the San Joaquin Valley, 150 miles north of his native Los Angeles, he probably smelled the sulfuric odor of industrial cow lots. But once he arrived, he would inhale something worse: a fungus that might kill him.
Towery complained of flu-like symptoms for a year before he was diagnosed. He’d wake coated in sweat. “It feels like something heavy is on my chest,” he told one nurse. Eventually, doctors found that he had an enlarged heart. A test revealed he had valley fever.
For the majority of people, valley fever, a disease brought on by breathing in fungus spores native to the desert dust of the southwestern United States, is harmless. But in 40 percent of the population, the disease can cause sore throats and muscle aches, and if the infection spreads, skin ulcers, bone legions, even inflammation of the heart or brain. Its severity varies by race: Black patients are 14 times more likely than white patients to suffer complications; Filipinos are 175 times more likely.
After being released on parole in 2013 with a weakened immune system and a lifetime prescription for an anti-fungal drug, Towery, who is black, decided to sue the state. His lawyer, Aashish Desai, charged California officials with a hate crime, arguing that because valley fever disproportionately affects black patients, officials deliberately put Towery’s life at risk by transferring him to the county with the worst infection rate. While Desai’s use of hate-crime legislation is unique, two other lawsuits have been filed by California prisoners who contracted valley fever while incarcerated. In 2015, a federally ordered screening found that 8 percent of California prisoners had the disease. The state’s overall infection rate at the time was less than 1 percent.
Environmental racism—the disproportionate exposure of communities of color to pollution and other environmental hazards—is a problem that the U.S. has recognized for decades; in 1994, Bill Clinton signed an executive order mandating that federal agencies address “environmental justice” for low-income and minority groups. Yet the issue persists. Hurricane Katrina revealed that New Orleans’ predominantly black neighborhoods were in low-lying portions of the city most prone to flooding. The predominantly black residents of Flint, Michigan, were exposed to lead-contaminated water.
There is a governmental safeguard meant to avoid subjecting people to these hazards: the federally mandated environmental review process, which is designed to forecast the impact of any large-scale governmental development. In theory, environmental reviews offer a roadmap for overcoming any conscious or unconscious biases in building new communities. But California’s prison system is one example of just how unclear the road can be.
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Under the 1969 National Environmental Policy Act, all federally funded construction projects, such as public housing, hospitals, and highways, must submit reports to the Environmental Protection Agency to get permission to move forward. These environmental impact documents include a reckoning of existing conditions, ecological risks, and planned mitigation efforts. They typically discuss the project’s effect on air quality, soil, plants, animals, historical sites, infrastructure, the existing community, and the local economy. The broad aim, according to the 1969 Act, is to “eliminate damage to the environment and biosphere” and to “stimulate the health and welfare of man.”
One frequent consideration of environmental impact reports is future residents. The federal Department of Housing and Urban Development, for instance, requires that the studies analyze how new housing projects might affect the environment and, in turn, how the environment could affect a new building and the people who will fill it. California Environmental Quality Act guidelines specifically require planners to avoid projects that expose vulnerable populations to poor air conditions. Those guidelines give the example of a residential development proposed near a wastewater treatment plant.
But when prisons are built on or next to former superfund sites, mines, and landfills, the EPA doesn’t require that environmental reviews consider the health of the convicts who will live there, says Paul Wright, the director of the Human Rights Defense Center, a nonprofit that lobbies on behalf of prisoners. Wright’s organization contends prisons across America are frequently constructed on polluted land, and cites concrete examples to prove it. California’s Victorville Federal Correctional Complex was placed on top of the George Air Force Base, a former superfund site. Cañon City, home to nine Colorado state and four federal prisons and penitentiaries, is next to a defunct uranium mill, and has reported high levels of the cancer-causing chemical trichloroethene in the groundwater. New York’s Rikers Island, built on a toxic waste landfill, was the subject of a lawsuit brought by former correctional officers claiming the polluted facility gave them cancer.
“Prisoners are viewed as an expendable population,” Wright says. “The EPA has a very long history of ignoring the environmental poisoning of people in prisons and jails in this country.”
Wright is currently crusading against a new facility in Letcher County, Kentucky, which will be placed on one of two sites: a surface mine with remnant waste or a former strip mine with active oil and natural gas wells. In a comment letter responding to the the prison’s environmental impact report, Wright pointed out that exposure to mining waste has been tied to chronic cardiovascular disease, cancer, and adult tooth loss, as well as water contamination. He also invoked federal “environmental justice” standards, noting prison populations are typically indigent and racially diverse.
In its response, the federal Bureau of Prisons, the subdivision of the Department of Justice charged with prison administration, insisted it would clean up mine spoil and that the site would not harm the health of prisoners or staff. The Bureau also responded 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.”
The Bureau didn’t detail why it doesn’t consider inmates minority or low-income populations. Perhaps it is difficult to know the racial breakdown or income bracket of the people who will fill a prison that doesn’t yet exist. Maybe the bureau is looking at national data; while people of color are over-represented in the prison system (58.9 percent of the prison population is white, compared to 77.4 percent in the general population), they are still in the minority. According to the Brookings Institute, incarceration does disproportionately affect both low-income and minority populations in the U.S.
In an email, a Bureau spokesperson addressed Wright’s grander claims that prisons are frequently built on or near polluted grounds, saying the Bureau has broken no laws by selecting these sites. “The Bureau's projects bring environmental benefits such as site cleanup, modern sewage disposal with the opportunity for local communities to have treatment plants, and safe and modern sources of drinking water,” it adds. (The Environmental Protection Agency did not respond to repeated requests for comment.)
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Kern Valley State Prison generated eight environmental impact reports between 1994 and 2001. They identified the San Joaquin Valley Air Basin as a “non-attainment area,” meaning its air quality is worse than the national Clean Air Act standards, and added this would “affect only those people most sensitive to air pollution exposure.”
Public comment periods for the reports drew responses from residents fearful of escaped convicts, farmers who worried they couldn’t spray pesticides, beleaguered school officials whose districts couldn’t accommodate additional families, and irate waterfowl clubs that complained harsh prison lights would scare off ducks. Valley fever was only mentioned once in those eight reports. A comment from two prophetic grape farmers warned, “Inmates will be exposed to dust caused by the increase in traffic, which could cause numerous cases of valley fever.” The prediction was buried among the letter’s other concerns; the state never addressed the valley fever point in its response.
Since the early 1990s, when the valley fever epidemic first began, four of the nine prisons built in California have been placed in counties with the highest contraction rates. To Desai, whose case against California is on appeal, this simply boils down to environmental racism. He argues Kern Valley State Prison shouldn’t have been built where it was.
“They know that black people are going to prison at a disproportionate rate, and they’re going to build a prison where they’re going to be the most affected? To me, that’s completely irresponsible,” Desai says.
Excluding prisoners in impact reports may be an oversight, but intentional or not, the practice suggests prisoners are not recognized as people worthy of the protections of “health and welfare” extended by the Environmental Policy Act. Prisoners are generally considered a dangerous population, but in many ways, they are also a vulnerable one. Many of their rights—the right to vote, to privacy, to sit on a jury, to buy guns—are stripped away as part of their punishment. Do we count the right to environmental health among those?
That is often worked out in the courts. Prisoners maintain their Eighth Amendment rights, and those exposed to cigarette smoke and asbestos have successfully invoked “cruel and unusual punishment” in lawsuits in the past. The Civil Rights Act, which also provides the legal precedent for the hate crime law Desai is using in his suit, rests on intent; it prohibits “willfully” injuring a victim.
The question of intent is one of foresight. It requires proof that the harm was preventable and that the government knowingly put prisoners at risk. But if prisoners aren’t considered in the environmental review process in the first place, these distinctions remain murky; the EPA can’t know whether inmates are being put in danger if their health isn’t considered prior to prison construction. Perhaps that is how California remained ignorant of the risks involved in constructing several prisons in the San Joaquin Valley.