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Toxic Confinement - Can the Eighth Amendment Protect Prisoners, Helppie-Schmieder, 2016

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HELPPIE-SCHMIEDER (DO NOT DELETE)

Copyright 2016 by Brenna Helppie-Schmieder

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Printed in U.S.A.
Vol. 110, No. 3

TOXIC CONFINEMENT: CAN THE EIGHTH
AMENDMENT PROTECT PRISONERS FROM
HUMAN-MADE ENVIRONMENTAL
HEALTH HAZARDS?
Brenna Helppie-Schmieder
ABSTRACT—What would you do if you realized a nearby factory or energy
operation was making everyone in your town sick? You might try to rally
your neighbors in protest, take legal action, or cut your losses and move
away. But what if your options were more limited? What if you were
forced to stay? This is the situation for prisoners across the country who
live in prisons located near dangerous energy industry operations.
The increased reliance on incarceration in recent times has resulted in
prisons being built on undesirable land, often the same land occupied by
the energy industry. This proximity presents serious health risks for
prisoners who are exposed to harmful operations, yet are unable to move.
Eighth Amendment precedent already establishes that health risks can
provide the basis for unconstitutional conditions claims, but it is not as
clear whether human-made environmental health risks can provide a
similar basis. Given the legal standard for Eighth Amendment claims, and
precedent interpreting that standard, this Note argues that human-made
environmental hazards near the physical location of a prison could form the
basis for successful claims of unconstitutional conditions.
AUTHOR—J.D. Candidate, Northwestern University School of Law, 2016.
Many thanks to Professors Meredith Rountree and David Shapiro, whose
guidance and feedback improved this piece immensely. Additional thanks
to the Northwestern University Law Review, particularly Kathleena Kruck,
Meghan Hammond, Brittany Bull, Peter Nascenzi, and Michael Meneghini.
Last but not least, thank you to Steven Berger for your unending support.
This Note is dedicated to those who spend their lives fighting against
injustice and oppression in all its forms.

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INTRODUCTION ............................................................................................................. 648
I. FRAMING THE LAW .................................................................................................. 651
A.

Brief History of the Eighth Amendment’s Cruel and Unusual
Punishment Clause ........................................................................................ 651

B.

Legal Standard for Unconstitutional Prison Conditions Claim..................... 653

C.

Doctrinal Evolution of the Standard.............................................................. 655

D.

Excessive Heat: An Unconstitutional Prison Condition ................................ 658

II. ENVIRONMENTAL ISSUES SURROUNDING PRISONS ................................................... 661
A.

Prison Sites and Property .............................................................................. 662

B.

Current Examples of Human-Made Environmental Hazards Facing
Prisons........................................................................................................... 664

III. HUMAN-MADE ENVIRONMENTAL HAZARDS AS THE BASIS FOR EIGHTH
AMENDMENT PRISON CONDITIONS CLAIMS ........................................................... 668
A.

Proving the First Element: Substantial Risk of Serious Harm....................... 668

B.

Proving the Second Element: Deliberate Indifference................................... 671

C.

Policy Arguments as Additional Support for the Viability of Claims............. 676

CONCLUSION ................................................................................................................ 677

INTRODUCTION
In his first year living at State Correctional Institution Fayette in
LaBelle, Pennsylvania, Anthony Willingham developed shortness of
breath, a violent cough, and a chronic hoarse throat.1 It became so
persistent that he required daily breathing treatments.2 After one year, he
discovered a growth under his tongue, which turned out to be cancerous.3
To this day, Willingham struggles to speak.4
In the summer of 2011, Michael Martone was imprisoned in the Texas
Department of Criminal Justice Huntsville Unit.5 Martone took medications
that react with heat.6 One day, when the temperature was over 100°F,
Martone complained of sickness, breathing difficulty, and dizziness, and
1 ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., NO ESCAPE: EXPOSURE TO TOXIC COAL
WASTE AT STATE CORRECTIONAL INSTITUTION FAYETTE 8 (2014), http://abolitionistlawcenter
.files.wordpress.com/2014/09/no-escape-3-3mb.pdf [http://perma.cc/F8HG-G2GV].
2 Id.
3 Id.
4 Id.
5 Martone v. Livingston, No. 4:13-CV-3369, 2014 WL 3534696, at *1–2 (S.D. Tex. July 16, 2014).
6 Id. at *1.

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was taken to the infirmary.7 The nurse directed him to drink water and rest,
and he was promptly turned back to his cell block.8 Soon after, Martone
began convulsing in his cell and collapsed.9 He drifted in and out of
consciousness, and as soon as he arrived at the emergency room via
ambulance, he was pronounced dead.10 His body temperature was 108°F.11
In Pennsylvania, prisoner12 health problems at State Correctional
Institution Fayette have recently been linked to a coal ash dumping site
near the prison.13 In Texas, at least fourteen prisoners have died from
excessive heat since 2007.14 In both cases, the physical location of a prison
can present serious health risks for its prisoners. Although precedent
already establishes that health risks can provide the basis for Eighth
Amendment unconstitutional conditions claims,15 including health risks
from some environmental factors like excessive heat,16 it is not as clear
whether human-made environmental health risks17 can provide a similar
basis. Given the legal standard for Eighth Amendment claims, and
precedent interpreting that standard, this Note argues that human-made

7

Id. at *1–2.
Id. at *2.
9 Id.
10 Id.
11 Id.
12 This Note uses the words prisoners and prison, however the same arguments could apply to
pretrial detainees and jails. See David C. Gorlin, Note, Evaluating Punishment in Purgatory: The Need
to Separate Pretrial Detainees’ Conditions-of-Confinement Claims from Inadequate Eighth Amendment
Analysis, 108 MICH. L. REV. 417, 419–21 (2009) (“Pretrial detainees and convicted prisoners are both
constitutionally protected from deplorable or dangerous conditions of confinement, but the protections
for each group are found in distinct constitutional sources. . . . [M]ore than half of the federal circuits
currently equate pretrial detainees’ and convicted prisoners’ rights to be free from deplorable conditions
of confinement.” (footnotes omitted)). But cf. Kingsley v. Hendrickson, No. 14-6368, slip op. at 10–11
(U.S. June, 22, 2015) (discussing the distinct constitutional sources for excessive force claims brought
by convicted prisoners versus pretrial detainees, and holding that pretrial detainees have a different
standard to prove such claims).
13 See ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., supra note 1; Eric Markowitz, Poison
Prison: Is Toxic Dust Sickening Inmates Locked Up in Coal Country?, INT’L BUS. TIMES (May 12,
2015), http://atavist.ibtimes.com/poison-prisonj653t [http://perma.cc/J4PE-33HF]. Coal ash is waste left
over from the combustion of coal. It contains toxic components and must be disposed of properly.
David B. Wester & M.J. Trlica, Mixtures of Bottom Ash and Soil as a Growth Medium for Three Range
Species, 30 J. RANGE MGMT. 391, 391 (1977); Markowitz, supra.
14 See HUMAN RIGHTS CLINIC, UNIV. OF TEX. SCH. OF LAW, DEADLY HEAT IN U.S. (TEXAS)
PRISONS
(2014),
https://law.utexas.edu/wp-content/uploads/sites/11/2015/04/2014-HRC-USADeadlyHeat-USShadowReport.pdf [http://perma.cc/6QU3-J7FN].
15 See, e.g., Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that a prisoner’s health risks
from involuntary exposure to tobacco smoke could form the basis of an Eighth Amendment claim).
16 See, e.g., Graves v. Arpaio, 623 F.3d 1043, 1045 (9th Cir. 2010) (per curiam).
17 “Human-made environmental health risks” and related terms refer to health risks that exist in the
environment as a result of human activities, such as pollution caused by energy industry operations.
8

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environmental hazards near the physical location of a prison could form the
basis for successful claims of unconstitutional conditions.
While a substantial scholarship examines the workings of the Cruel
and Unusual Punishment Clause in relation to prison conditions claims,18
possible claims related to the physical environment of a prison are
relatively unexamined. Developing a theory for bringing environmentbased conditions claims is important because the increased reliance on
incarceration over the past several decades has resulted in prisons being
built on undesirable land, often the same land occupied by the energy
industry.19 These industry operations, and their associated disasters, can
increase—or even create—health risks for people living in their vicinity.20
Prisoners are therefore increasingly susceptible to human-made
environmental health hazards.21
Part I of this Note frames the legal issue by discussing a brief history
of the Eighth Amendment’s Cruel and Unusual Punishment Clause, which
provides the constitutional basis for many prison conditions claims. Next,
Part I explains the current legal standard for a successful unconstitutional
conditions claim,22 and describes its doctrinal evolution by highlighting
landmark Supreme Court cases. Finally, Part I surveys cases in which the
environmental hazard of unmitigated excessive heat has been deemed an
unconstitutional prison condition. As will be argued, when the
environmental hazards are human-made, the result should be no different.
Part II discusses environmental issues surrounding prisons. This Part
first provides a brief background of prison sites and properties to
demonstrate why human-made environmental hazards are a ripe area for
Eighth Amendment conditions litigation. This Part then highlights specific
18

E.g., Brittany Glidden, Necessary Suffering?: Weighing Government and Prisoner Interests in
Determining What Is Cruel and Unusual, 49 AM. CRIM. L. REV. 1815, 1816 (2012) (arguing “the
Eight[h] Amendment conditions of confinement test is confusing, inconsistent, and ultimately lacks a
sound theoretical basis, which prevents it from serving its intended purpose,” and proposing a modified
test); Christopher E. Smith, The Malleability of Constitutional Doctrine and Its Ironic Impact on
Prisoners’ Rights, 11 B.U. PUB. INT. L.J. 73, 81–87 (2001) (describing different Justices’ approaches to
the Eighth Amendment conditions of confinement standard); Tom Stacy, Cleaning Up the Eighth
Amendment Mess, 14 WM. & MARY BILL RTS. J. 475, 475 (2005) (“This article criticizes the Court’s
interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and offers its own
understanding.”).
19 See Markowitz, supra note 13 (“[T]here’s a reason former coal towns welcome prisons: money.
The declining coal industry has left scores of rural, economically impoverished towns. That decline,
coupled with the fact that the United States was opening a new prison every 15 days throughout the
‘90s, created a toxic mix.”). The relationship between energy sites and prisons is explored further in
Part II.
20 See infra Section II.B.
21 See infra Section II.B.
22 This standard will be discussed within the context of Bivens claims filed against federal
defendants and 42 U.S.C. § 1983 claims filed against state defendants. See infra note 47.

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examples in which conditions claims based on human-made environmental
hazards could be raised.
Finally, Part III argues that human-made environmental hazards
unique to the physical location of a prison could provide the basis for
successful Eighth Amendment conditions claims. It does so by presenting a
litigation roadmap, which explores various kinds of evidentiary, doctrinal,
and policy support for such claims. Ultimately, this Note aims to
demonstrate why Eighth Amendment claims based on human-made
environmental hazards are not only viable, but winnable.
I.

FRAMING THE LAW

A. Brief History of the Eighth Amendment’s Cruel and Unusual
Punishment Clause
The Eighth Amendment states, “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”23 Along with the other nine amendments in the Bill of Rights, the
Eighth Amendment was ratified on December 15, 1791.24 Its origins,
however, stretch back much further. Indeed, the specific language of the
Amendment was taken almost verbatim from the English Bill of Rights of
1689.25 The drafters of the English Bill of Rights included a cruel and
unusual punishment clause in reaction to the Court of King’s Bench
sentencing prisoners to disproportionally excessive punishments as
compared to their crimes.26 Like their English counterparts, the Framers of
the Eighth Amendment mainly intended the Clause to “prohibit cruel and
unusual post-conviction punishment.”27
There was little debate about the Clause in the First Congress, except
that its terms were questioned as vague and indefinite.28 The ambiguity of
23

U.S. CONST. amend. VIII.
Amendment VIII: Excessive Fines, Cruel and Unusual Punishment, NAT’L CONST. CTR.,
http://constitutioncenter.org/constitution/the-amendments/amendment-8-cruel-and-unusual-punishment
[http://perma.cc/AN68-GRLT].
25 Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth
Amendment, 31 PEPP. L. REV. 661, 666–67 (2004) (quoting the English Bill of Rights of 1689 as
stating, “[E]xcessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual
punishments inflicted.”).
26 See NAWL Law Year Comm., The Eighth Amendment, 48 WOMEN LAW. J. 18, 18 (1962) (“The
prohibition of cruel and unusual punishment was a well known principle in English law, popularized by
Gilbert and Sullivan in the words, ‘the punishment should fit the crime.’ While this principle existed in
theory, it seems some of the court of the king’s bench . . . assessed punishments involving torture and
mutilation beyond reason.”).
27 Rumann, supra note 25, at 665.
28 See Weems v. United States, 217 U.S. 349, 368–69 (1910) (“The provision received very little
debate in Congress. We find from the Congressional Register, p. 225, that Mr. Smith of South Carolina
24

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“cruel” and “unusual” may have given some Framers pause, but it is
precisely that ambiguity that has allowed the Clause to remain relevant
over time. As Justice Brennan recognized in Furman v. Georgia,29 “The
Cruel and Unusual Punishments Clause, like the other great clauses of the
Constitution, is not susceptible of precise definition. Yet we know that the
values and ideals it embodies are basic to our scheme of government.”30
One of the primary ideals of the Eighth Amendment, and thus the Cruel
and Unusual Punishment Clause, is to preserve the “dignity of man.”31
The dignity of man ideal has formed the basis for evaluating whether a
punishment is unconstitutionally cruel and unusual. The Court has
recognized that such ideals cannot be defined by rigid boundaries, and
therefore “[t]he Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.”32 What
constitutes cruel and unusual punishment, then, is very much informed by
current societal values.33 “To determine what constitutes ‘cruel and
unusual’ punishment under that approach, the Court looks at objective
indicia to determine the national consensus regarding the application of the
punishment at issue.”34
The Cruel and Unusual Punishment Clause was rarely relied upon in
the first century of its existence.35 It was not until the twentieth century that
the Clause was given new life through litigation. In Trop v. Dulles, the
‘objected to the words “nor cruel and unusual punishment,” the import of them being too indefinite.’
Mr. Livermore opposed the adoption of the clause, saying: ‘The clause seems to express a great deal of
humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not
think it necessary.’”).
29 408 U.S. 238 (1972) (per curiam).
30 Id. at 258 (Brennan, J., concurring).
31 See Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (“Prisoners retain the essence of human dignity
inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against
cruel and unusual punishment.”); Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion) (“The
basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the
State has the power to punish, the Amendment stands to assure that this power be exercised within the
limits of civilized standards.”).
32 Trop, 356 U.S. at 100–01 (plurality opinion).
33 See Corey Rayburn Yung, Is Military Law Relevant to the “Evolving Standards of Decency”
Embodied in the Eighth Amendment?, 103 NW. U. L. REV. COLLOQUY 140, 142 (2008) (“For better or
worse, the examination of the evolving standards of decency continues to be the Court’s methodology
for evaluating statutes challenged under the Cruel and Unusual Punishment Clause.”).
34 Id.
35 Rumann, supra note 25, at 666; see also Note, The Cruel and Unusual Punishment Clause and
the Substantive Criminal Law, 79 HARV. L. REV. 635, 637 (1966) (“Comment at [the time of the Bill of
Rights’ ratification] indicates that the practices intended to be forbidden were punishments such as
pillorying, disemboweling, decapitation, and drawing and quartering; it was unusual cruelty in the
method of punishment that was condemned. In the nineteenth century the provision was considered by
some to be obsolete, aimed only at primitive practices that had long since passed away.” (footnotes
omitted)).

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Supreme Court held that denationalization—that is, stripping a citizen of
his or her status as an American—was a violation of the Eighth
Amendment’s Cruel and Unusual Punishment Clause.36 This holding was
transformative because it recognized the flexible nature of what constituted
cruel and unusual punishment.37 By Supreme Court decree, the Cruel and
Unusual Punishment Clause was alive, and the punishment it prohibited
could change over time.
The Cruel and Unusual Punishment Clause has primarily been used to
police the bounds of state-sanctioned criminal punishment in three ways:
“First, it limits the kinds of punishment that can be imposed on those
convicted of crimes; second, it proscribes punishment grossly
disproportionate to the severity of the crime; and third, it imposes
substantive limits on what can be made criminal and punished as such.”38
The second mode of safeguarding—prohibiting punishment that is
disproportionate to the crime—is at issue in unconstitutional prison
conditions cases.39 These cases are governed by a two-pronged legal
standard.
B. Legal Standard for Unconstitutional Prison Conditions Claim
A successful prison conditions claim requires proving that: (1) the
plaintiff faced substantial risk of serious harm, and (2) the defendant was
“deliberately indifferent” to that risk.40 The underlying reasons for allowing
these claims are essential for contextualizing the two prongs. In DeShaney

36

See 356 U.S. at 101 (plurality opinion).
See Note, supra note 35, at 637.
38 Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citations omitted).
39 See Helling v. McKinney, 509 U.S. 25, 31–32 (1993) (“[T]he conditions under which [a
prisoner] is confined are subject to scrutiny under the Eighth Amendment.”). It should be noted that the
Cruel and Unusual Punishment Clause also applies to the states. In 1962, the Supreme Court
incorporated the prohibition against the states via the Due Process Clause of the Fourteenth
Amendment. See Robinson v. California, 370 U.S. 660, 666–67 (1962).
40 Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“A prison official’s ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate violates the Eighth Amendment.”). The standard is the
same in the context of a § 1983 suit, with the addition of having to prove state action. See West v.
Atkins, 487 U.S. 42, 48 (1988) (“[A] plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was committed
by a person acting under color of state law.”). In West v. Atkins, a detainee filed a § 1983 action alleging
the medical services at the prison where he was housed amounted to cruel and unusual punishment. Id.
at 45. The prison physician against whom the detainee was filing suit, however, was not employed by
the prison itself. Id. at 44. Still, the Court held that the “physician employed by North Carolina to
provide medical services to state prison inmates[] acted under color of state law for purposes of § 1983
when undertaking his duties in treating petitioner’s injury,” and that “[s]uch conduct is fairly
attributable to the State.” Id. at 54.
37

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v. Winnebago County Department of Social Services,41 the Supreme Court
explained:
[W]hen the State takes a person into its custody and holds him there against
his will, the Constitution imposes upon it a corresponding duty to assume
some responsibility for his safety and general well-being. . . . [W]hen the State
by the affirmative exercise of its power so restrains an individual’s liberty that
it renders him unable to care for himself, and at the same time fails to provide
for his basic human needs . . . it transgresses the substantive limits on state
action set by the Eighth Amendment and the Due Process Clause.42

Importantly, unconstitutional conditions claims are agnostic as to what
the conditions are. Claims can range from improper medical care to lack of
safety.43 Although common categories of claims have developed,44
prisoners have also alleged their prison conditions amount to
unconstitutional cruel and unusual punishment for less common reasons,
like absence of sexual relations45 or being served an exclusive diet of poortasting food.46 Available remedies for successful claims depend on who is
being sued and in what capacity.47
41

489 U.S. 189 (1989).
Id. at 199–200 (citations omitted).
43 Farmer, 511 U.S. at 832 (“[The Eighth Amendment’s Cruel and Unusual Punishment Clause]
imposes duties on [prison] officials, who must provide humane conditions of confinement; prison
officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the inmates.’” (quoting Hudson v. Palmer,
468 U.S. 517, 526–27 (1984))).
44 For example, common categories include use of force cases, e.g., Avratin v. Bermudez, 420 F.
Supp. 2d 1121, 1124–25 (S.D. Cal. 2006), and medical care cases, e.g., Dellairo v. Garland, 222 F.
Supp. 2d 86, 90–92 (D. Me. 2002), among others.
45 E.g., Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir. 1971) (per curiam).
46 E.g., Prude v. Clarke, 675 F.3d 732, 733 (7th Cir. 2012); see also Eliza Barclay, Food as
Punishment: Giving U.S. Inmates ‘The Loaf’ Persists, NPR (Jan. 2, 2014, 3:53 AM),
http://www.npr.org/sections/thesalt/2014/01/02/256605441/punishing-inmates-with-the-loaf-persists-inthe-u-s [http://perma.cc/DR2L-TT67].
47 For example, if a prisoner alleges unconstitutional conditions against a federal defendant, she or
he will likely file a Bivens action. See Carlson v. Green, 446 U.S. 14, 18–20 (1980) (finding a
constitutional implied right of action under the Eighth Amendment’s Cruel and Unusual Punishment
Clause). Bivens actions are so-called implied rights of action that stem directly from the Constitution
and allow for damages remedies. See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 397 (1971) (“[W]e hold that petitioner is entitled to recover money damages
for any injuries he has suffered as a result of the agents’ violation of the Amendment.”). If a prisoner
alleges unconstitutional conditions against a state defendant, she or he will file suit under 42 U.S.C.
§ 1983 (2012), which states in relevant part: “Every person who, under color of any statute . . . of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . . .” Section 1983 claims are also viable against city and
county defendants. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 669 (1978). Section 1983 suits
allow for damages against state officials sued in their personal capacity, subject to immunity
limitations, in addition to injunctive relief against state officials sued in their official capacity. See Ex
parte Young, 209 U.S. 123, 159–60 (1908) (spawning the doctrine that Eleventh Amendment sovereign
42

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Regardless of the factual allegations, the objective first element of
unconstitutional conditions claims requires the plaintiff to prove that the
risk of serious harm is sufficiently substantial. If there is not yet an injury,
the plaintiff must demonstrate three aspects of the risk for it to be deemed
sufficiently substantial: the injury’s seriousness, the likelihood of the injury
occurring, and that the risk “violates contemporary standards of decency to
expose anyone unwillingly to such a risk.”48 For example, the Court noted
that a prisoner could likely “successfully complain about demonstrably
unsafe drinking water without waiting for an attack of dysentery” to satisfy
the first prong.49
The subjective second element, that the defendant was deliberately
indifferent to the risk, is often the more difficult element for plaintiffs to
prove.50 A plaintiff can prove deliberate indifference by presenting
evidence of the defendant’s attitude and conduct,51 or by offering
circumstantial evidence that allows for the inference that the defendant had
knowledge of the risk and failed to mitigate it.52 Additionally, “a factfinder
may conclude that a prison official knew of a substantial risk from the very
fact that the risk was obvious.”53 To illustrate, in Vinning-El v. Long,54 the
Seventh Circuit held that a reasonable jury could infer that guards who
worked in proximity to a grimy cell with a broken toilet, flooded floors,
feces and blood on the wall, and no mattress, would have had knowledge of
the risks given the obviousness of the conditions.55
C. Doctrinal Evolution of the Standard
In the 1990s, the Supreme Court decided three cases that gave
structure to the two-prong proof requirement.56 In 1991, the Court in Wilson
immunity is not violated by claim for injunctive relief against state official sued in official capacity);
13D CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3573.1, at 568 (3d ed.
2008) (“State and Territory officials sued in their personal capacities are ‘persons’ and may be held
liable for damages under § 1983 for actions taken in their official capacities.”).
48 Helling v. McKinney, 509 U.S. 25, 36 (1993).
49 Id. at 33.
50 The Seventh Circuit pointed out the difficulty with the deliberate indifference standard in McGill
v. Duckworth: “This seeming oxymoron has given us, in company with other courts of appeals, fits.
How do we simultaneously honor both the ‘deliberate’ and the ‘indifference’ aspects?” 944 F.2d 344,
351 (7th Cir. 1991).
51 See Helling, 509 U.S. at 36.
52 See Farmer v. Brennan, 511 U.S. 825, 842–43 (1994).
53 Id. at 842.
54 482 F.3d 923 (7th Cir. 2007).
55 Id. at 924–25.
56 Prior to 1991, the Supreme Court had not yet established a definitive test for adjudging Eighth
Amendment unconstitutional conditions claims. See Alexander J. Spanos, Note, The Eighth Amendment
and Nutraloaf: A Recipe for Disaster, 30 J. CONTEMP. HEALTH L. & POL’Y 222, 225–27 (2013)

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v. Seiter57 articulated the standard for proving the subjective element of an
unconstitutional conditions claim. That is, plaintiffs must prove that
defendants acted with deliberate indifference.58 Two years later, in Helling
v. McKinney, the Court was confronted with a question regarding the
objective element of a plaintiff’s claim: must the plaintiff have a current
injury, or can a potential future injury be deemed sufficiently substantial to
overcome the objective element?59 The Court found future injuries could
suffice under certain circumstances.60 Finally, in the 1994 case of Farmer v.
Brennan, the Court returned its attention to the subjective element,
clarifying the deliberate indifference standard and indicating ways that
prison officials could prevail on it.61 The reasoning in each decision—
critical to understanding the contours of the two-pronged test—is
elaborated upon below.
In Wilson, the Supreme Court held that to meet the subjective
component of the standard, plaintiffs would have to prove that prison
officials acted with deliberate indifference.62 In that case, a state prisoner
filed a § 1983 action alleging that several conditions of his confinement
violated the Cruel and Unusual Punishment Clause.63 Wilson argued that
“to the extent officials’ state of mind is relevant at all,” the proper standard
is deliberate indifference.64 The defendants responded that deliberate
indifference is only proper in cases with a physical injury, but otherwise a
malice standard should be required.65 The Court rejected distinctions
between different categories of conditions claims and held that the proper
standard was deliberate indifference.66 The definition of deliberate
(reviewing various Eighth Amendment standards that emerged from Estelle v. Gamble, 429 U.S. 97
(1976); Rhodes v. Chapman, 452 U.S. 337 (1981); and Whitley v. Albers, 475 U.S. 312 (1986)).
57 501 U.S. 294 (1991).
58 Id. at 303.
59 509 U.S. 25, 28, 32–33 (1993).
60 See id. at 36–37.
61 511 U.S. 825, 844 (1994).
62
501 U.S. at 303; id. at 306 (White, J., concurring in the judgment); see also Helling, 509 U.S. at
29–30 (“[Wilson] held that, while the Eighth Amendment applies to conditions of confinement that are
not formally imposed as a sentence for a crime, such claims require proof of a subjective component,
and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner’s
medical needs, the standard for that state of mind is the ‘deliberate indifference’ standard of Estelle v.
Gamble, 429 U.S. 97 (1976).”).
63 Wilson, 501 U.S. at 296 (majority opinion). The conditions Wilson complained of included
“overcrowding, excessive noise, insufficient locker storage space, inadequate heating and cooling,
improper ventilation, unclean and inadequate restrooms, unsanitary dining facilities and food
preparation, and housing with mentally and physically ill inmates.” Id.
64 Id. at 303.
65 Id.
66 Id.

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indifference is far from concrete, but the Court at least clarified that it is a
more culpable state of mind than “mere negligence,” but not as culpable as
acting “maliciously and sadistically for the very purpose of causing
harm.”67
Helling was groundbreaking in its interpretation of the objective
standard plaintiffs need to prove in conditions claims. Also a § 1983 case,
the prisoner–plaintiff, McKinney, alleged that his exposure to his
cellmate’s secondhand smoke was sufficiently substantial to constitute
unconstitutional conditions.68 In response, the defendants argued McKinney
needed to prove a current injury from the secondhand smoke to have an
Eighth Amendment claim.69 In other words, the defendants maintained that
unconstitutional conditions claims required a threshold showing of existing
health problems.70 The Supreme Court disagreed.71 It found that the
secondhand smoke could create a substantial risk of serious harm to his
future health sufficient to satisfy the objective prong of the standard.72
The following year, in Farmer, prisoner Dee Farmer brought a Bivens
action against federal prison officials, claiming that they “violated the
Eighth Amendment by their deliberate indifference to [her] safety.”73 The
Supreme Court granted certiorari to clarify the test for proving deliberate
indifference.74 The Court held a prison official cannot be found liable

67 See id. at 305. The case was vacated and remanded for consideration under the newly articulated
standard. Id. at 306.
68 Helling v. McKinney, 509 U.S. 25, 28 (1993).
69 Id. at 32.
70 Id. at 32–33.
71 Id. at 33–34.
72 The Court ultimately held that McKinney stated a cause of action “by alleging that [the
defendants] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke]
that pose an unreasonable risk of serious damage to his future health.” Id. at 35. Shedding more light on
the subjective second element, the Court stated:
On remand, the subjective factor, deliberate indifference, should be determined in light of the
prison authorities’ current attitudes and conduct, which may have changed considerably since the
judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above
will bear heavily on the inquiry into deliberate indifference. . . . The inquiry into this factor also
would be an appropriate vehicle to consider arguments regarding the realities of prison
administration.
Id. at 36–37.
73 Farmer v. Brennan, 511 U.S. 825, 829 (1994). Dee Farmer, a transgender woman, alleged she
was beaten and raped by another incarcerated person. Id. at 829–30. She brought suit against prison
officials alleging that her transfer to a federal penitentiary and placement in general population placed
her in a violent environment and left her vulnerable to sexual attacks. Id. at 830–31. For more
information on the life and legacy of Dee Farmer, see Alison Flowers, Dee Farmer Won a Landmark
Supreme Court Case on Inmate Rights. But That’s Not the Half of It, VILLAGE VOICE (Jan. 29, 2014),
http://www.villagevoice.com/news/dee-farmer-won-a-landmark-supreme-court-case-on-inmate-rightsbut-thats-not-the-half-of-it-6440783 [http://perma.cc/DQ9U-ABUB].
74 Farmer, 511 U.S. at 832, 834.

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“unless the official knows of and disregards an excessive risk to inmate
health or safety.”75 Knowledge of an excessive risk could be shown if “the
official [is] both . . . aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he . . . also draw[s]
the inference.”76
In dicta, the Farmer Court provided defendants with a few possible
defenses. First, it stated that prison officials could combat claims of
deliberate indifference by showing that they were not aware of the
“underlying facts indicating a sufficiently substantial danger and that they
were therefore unaware of a danger.”77 Alternatively, prison officials could
argue that while they were aware of the underlying facts, they believed “the
risk to which the facts gave rise was insubstantial or nonexistent.”78 Finally,
prison officials could prevail on deliberate indifference by showing they
responded reasonably to the risk, despite not preventing it.79
The Court clarified the two-pronged standard in Wilson, Helling, and
Farmer in significant ways, but whether a given claim meets the standard
remains a fact-intensive inquiry. Some might loathe its imprecision, but the
standard helps safeguard the purpose of the Cruel and Unusual Punishment
Clause—to protect the ever-evolving dignity of man.80
D. Excessive Heat: An Unconstitutional Prison Condition
The standard for evaluating unconstitutional conditions claims, as
clarified by the above three cases, has been applied to a variety of contexts.
Notably, several courts have found that unmitigated excessive heat can
constitute or contribute to unconstitutional prison conditions. The success
of these claims supports the viability of unconstitutional conditions claims
based on human-made environmental hazards, as will be demonstrated in
Part III.
For example, in Hope v. Pelzer,81 a prisoner in Alabama alleged that
being punitively handcuffed to an outdoor hitching post in the middle of

75

Id. at 837.
Id.
77 Id. at 844.
78 Id.
79 Id. The court of appeals’ decision was vacated, and the case was remanded so that the clarified
standard could be applied. Id. at 851. The circuit court remanded the case to the district court, which
found for the prison officials. Farmer v. Brennan, 81 F.3d 1444, 1445 (7th Cir. 1996). Upon appeal,
however, the decision was again remanded because the plaintiff was not given “meaningful opportunity
to respond to the Supreme Court’s action.” Id.
80 See supra notes 31–34 and accompanying text.
81 536 U.S. 730 (2002).
76

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summer amounted to unconstitutional cruel and unusual punishment.82 The
Supreme Court agreed, although exposure to heat was only one aspect of
the prisoner’s claim.83 The prisoner, hitched to the pole for seven hours,
was made to take off his shirt, was taunted with and denied water, and was
denied bathroom breaks.84 The Supreme Court recognized the health
concerns caused by prolonged exposure to excessive heat, which
contributed to the viability of the plaintiff’s unconstitutional conditions
claim.
Cases in the lower courts have produced similar results, gradually
cementing the precedent that unmitigated excessive heat is an
unconstitutional prison condition. For instance, in Graves v. Arpaio, the
Ninth Circuit affirmed a district court’s order requiring that Maricopa
County jails address “dangerously high” temperatures, a condition found to
violate the Eighth Amendment.85 One of the provisions upheld was that
officials must provide housing with cooler temperatures to pretrial
detainees who take psychotropic medications.86
In upholding this aspect of the remedial order, the Ninth Circuit
discussed the distinction between uncomfortable temperatures and
unconstitutional temperatures.87 Simply put, constitutionally inadequate
temperatures pose “a substantial risk of serious harm.”88 Because the
district court made a factual finding that temperatures over 85°F “greatly
increase the risk of heat-related illness for pretrial detainees taking
psychotropic medications,” the housing temperature for that class of
prisoners was constitutionally inadequate.89 Thus, as long as the factual
findings support that excessive heat poses significant risks to health, the
Eighth Amendment requires that jails mitigate that condition.
The Fifth Circuit reached a similar conclusion in 2015. In Ball v.
LeBlanc,90 three prisoner–plaintiffs sued the Louisiana Department of
Corrections alleging unconstitutional conditions due to extreme heat

82 Id. at 733–35. The issue in front of the Supreme Court concerned the qualified immunity of the
defendants. Id. at 733. However, because at the time of this decision “[t]he threshold inquiry a court
must undertake in a qualified immunity analysis is whether plaintiff’s allegations, if true, establish a
constitutional violation,” id. at 736, the Supreme Court had reason to determine whether punitively
hitching someone to a post was unconstitutional under the Eighth Amendment.
83 See id. at 737–38.
84 Id. at 734–35.
85 623 F.3d 1043, 1045, 1049 (9th Cir. 2010) (per curiam).
86 Id. at 1045, 1048.
87 See id. at 1049.
88 Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
89 Id.
90 792 F.3d 584 (5th Cir. 2015).

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exacerbating their medical conditions.91 At the Angola death row prison
facility where the plaintiffs lived, the heat index exceeded 100°F in the
summer.92 There were some fans and vents in the housing tiers, but no air
conditioning.93 During the one hour per day that prisoners were not
confined to their cells, they had access to an ice chest that may or may not
have actually contained ice.94
The district court, in analyzing whether the excessive heat posed a
sufficiently serious risk of harm, found it “axiomatic” that unmitigated
extreme temperatures may violate the Constitution.95 The court supported
its decision with a review of cases around the country that reached a similar
conclusion.96 The Fifth Circuit affirmed the district court’s finding that
“housing these prisoners in very hot cells without sufficient access to heatrelief measures, while knowing that each suffers from conditions that
render him extremely vulnerable to serious heat-related injury, violates the
Eighth Amendment.”97
Current prisoners in Texas are making the same arguments in pending
class action litigation. Despite high summer temperatures, air conditioning
is presently not mandated in Texas prisons.98 Although wrongful death
lawsuits have previously been filed on behalf of prisoners who died from
heat-related illnesses, a 2014 lawsuit filed in Houston attempted to bring
pending prison-heat cases together for the first time in a class action.99
91

Id. at 589–90. Their conditions included hypertension, diabetes, obesity, hepatitis, depression,
and high cholesterol. Id.
92 Id. at 590.
93 Id.
94 See id. (noting that at times the only ice machine would break or not produce enough ice).
95 Ball v. LeBlanc, 988 F. Supp. 2d 639, 662 (M.D. La. 2013).
96 Id. at 662–63. In addition to a number of Fifth Circuit decisions, the court cited Walker v. Schult,
717 F.3d 119, 126 (2d Cir. 2013) (“[I]t is well settled that exposing prisoners to extreme temperatures
without adequate ventilation may violate the Eighth Amendment.”); Graves v. Arpaio, 623 F.3d 1043,
1049 (9th Cir. 2010) (per curiam) (“The district court did not err . . . in concluding that dangerously
high temperatures that pose a significant risk to detainee health violate the Eighth Amendment.”); and
Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004) (“[T]he Eighth Amendment applies to
prisoner claims of inadequate cooling and ventilation.”).
97 Ball, 792 F.3d at 596. Despite holding that such conditions violate the Constitution, the Fifth
Circuit vacated and remanded the district court’s injunction requiring the prison to install air
conditioning. Id. at 599–600. The court found that the scope of the injunction violated the Prison
Litigation Reform Act because it could have been more narrowly drawn and because it applied beyond
the three plaintiffs in front of the court. Id. at 598–600.
98 As of August 2014, “only 21 of 111 [Texas Department of Criminal Justice] facilities have full
climate control, while others have air conditioning only in certain areas such as medical units.” Matt
Clarke & David M. Reutter, Heat-Related Deaths in Texas Prisons Lead to Lawsuits, Reluctant
Changes, PRISON LEGAL NEWS (Aug. 8, 2014), https://www.prisonlegalnews.org/news/2014/aug/8/
heat-related-deaths-texas-prisons-lead-lawsuits-reluctant-changes/ [https://perma.cc/V9JH-X6X9].
99 The plaintiffs filed § 1983 claims alleging constitutional violation under the Eighth and
Fourteenth Amendments. In re Tex. Prison Conditions-of-Confinement Litig., 52 F. Supp. 3d 1379,

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These and other cases around the country100 demonstrate that
unmitigated excessive heat can constitute an unconstitutional prison
condition in violation of the Eighth Amendment’s Cruel and Unusual
Punishment Clause. That the natural environmental hazard of heat can
establish successful claims supports the argument that human-made
environmental hazards can similarly do so. Indeed, the only facial
distinction is the source of the hazard.
II. ENVIRONMENTAL ISSUES SURROUNDING PRISONS
Prisoners are uniquely vulnerable to the environmental conditions
around them for the simple reason that they cannot choose where they live.
Nonprisoners can, and often do, modify their homes based on their
environment. In hot climates, people can buy air conditioners and fans. In
cold climates, people can buy heaters or seal their windows. In locations
with toxic pollution, people can attempt to stop the pollution, or even cut
one’s losses and move away.101 Prisoners have no such choices.
This Part first provides a brief background into prison sites and
property, demonstrating that attractive locations for prison sites are often
attractive locations for the energy industry, which can lead to human-made
environmental hazards. This Part then highlights environmental concerns
around the country to demonstrate how human-made environmental health
hazards can give rise to prison condition claims.

1379 (J.P.M.L. 2014) (“These seven actions (six individual wrongful death actions and one class action)
involve allegations that inmates in various Texas state prison facilities—in particular, prisoners with
disabilities—have suffered injury or death as a result of conditions in inmate living quarters alleged
often to be brutally hot during the summer months.”). For interesting commentary about the case’s
venture in front of the Inter-American Commission on Human Rights, see Kevin Diaz, International
Rights Panel Scrutinizes Texas Prison Heat¸ HOUS. CHRON. (Oct. 27, 2014, 9:00 PM),
http://www.houstonchronicle.com/news/houston-texas/houston/article/International-rights-panelscrutinizes-Texas-5851394.php [http://perma.cc/E37W-5YWY].
100 E.g., Jones-El v. Berge, 374 F.3d 541, 543 (7th Cir. 2004) (affirming enforcement order to air
condition cells in Wisconsin prison); see also Juliet Linderman & Brian Witte, ACLU: Squalid
Conditions at Troubled Baltimore Jail, SEATTLE TIMES (June 2, 2015, 2:19 PM),
http://www.seattletimes.com/nation-world/aclu-squalid-conditions-at-troubled-baltimore-jail/
[http://perma.cc/465U-VXY8] (reporting on a motion to reopen prison conditions litigation against a
Maryland jail for, among other allegations, excessive heat).
101 Despite the varying success rates of political and legal action, especially among different
socioeconomic classes, prisoners are deprived of even the choice to meaningfully engage as compared
to people in free society. For example, in LaBelle, Pennsylvania, residents have complained about the
coal ash dump and its effects, some former residents have moved away, and an industry watchdog
group has filed a civil suit against the company that manages the coal ash dump. Markowitz, supra note
13.

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A. Prison Sites and Property
Since 1980, the total number of prisoners in the United States has been
sharply rising.102 By the end of 2013, approximately 1,574,700 people were
incarcerated in federal and state prisons.103 Unsurprisingly, the increase in
incarceration has also resulted in increased spending.104 But with
government budgets tightening, “politicians and lawmakers are embracing
policies that will decrease the cost of operating the corrections system and
incarcerating individuals.”105 One way to decrease costs is to be mindful of
property prices in new prison locations.
As long as prisoner populations continue to rise, concerns about space
will persist.106 New prisons will need to be built; older prisons will be
closed to open newer, larger prisons.107 One of the first questions will be:
where to build? Government officials must balance a variety of factors in
planning a prison’s physical location. Some of these factors include
“proximity to courts and hospitals, accessibility by either public
transportation or major highways, community interest and support.”108
Environmental factors specific to a proposed site are also sometimes
considered in the decisionmaking process.109

102 See NATHAN JAMES, CONG. RESEARCH SERV., R42937, THE FEDERAL PRISON POPULATION
BUILDUP:
OVERVIEW,
POLICY
CHANGES,
ISSUES,
AND
OPTIONS
1
(2014),
http://fas.org/sgp/crs/misc/R42937.pdf [http://perma.cc/B94J-KBDT] (“The number of inmates under
the BOP’s jurisdiction has increased from approximately 25,000 in FY1980 to over 219,000 in
FY2013. . . . Since FY1980, the federal prison population has increased, on average, by approximately
5,900 inmates each fiscal year.”).
103 Press Release, Bureau of Justice Statistics, U.S. Dep’t of Justice, In 2013 the State Prison
Population Rose for the First Time Since 2009; Federal prison population declined for first time since
1980 (Sept. 16, 2014), http://www.bjs.gov/content/pub/press/p13pr.cfm [http://perma.cc/GNP3DGQB]. This figure does not purport to include detainees in jails or immigration detention.
104 Andrew Webster, Environmental Prison Reform: Lower Costs and Greener World, 36 NEW
ENG. J. CRIM. & CIV. CONFINEMENT 175, 175 (2010) (“Spending on the corrections system has
increased by approximately 600% between 1982 and 2006.”); see also TRACEY KYCKELHAHN, BUREAU
OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, STATE CORRECTIONS EXPENDITURES, FY 1982–2010,
at 1 (2014), http://www.bjs.gov/content/pub/pdf/scefy8210.pdf [http://perma.cc/GNP3-DGQB]
(“Between 1982 and 2001, total state corrections expenditures increased each year, rising from $15.0
billion to $53.5 billion in real dollars. Between 2002 and 2010, expenditures fluctuated between $53.4
billion and $48.4 billion.”).
105 Webster, supra note 104, at 175.
106 See Brown v. Plata, 131 S. Ct. 1910, 1923 (2011) (affirming a lower court’s order to
significantly reduce prison population in face of overcrowding).
107 See, e.g., Marissa Lang, Utah Lawmakers Discuss Where to Move Draper Prison, SALT LAKE
TRIB. (May 22, 2014, 3:30 PM), http://www.sltrib.com/sltrib/politics/57977277-90/prison-statecommission-utah.html.csp [http://perma.cc/DB4F-TMCX].
108 Id.
109 See, e.g., Alicia Nieves, Environmental Concerns at New Prison Site, WNEP.COM (July 15,
2015,
11:50
PM),
http://wnep.com/2015/07/15/environmental-concerns-at-new-prison-site/
[http://perma.cc/6YV6-68TL] (reporting on ground contamination at a proposed new prison site).

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Since the beginning of the rapid prisoner population growth in 1980,
the vast majority of new prisons have been built in rural, as opposed to
metropolitan, locations.110 In the 1980s, an average of sixteen new prisons
were built in rural areas each year.111 In the 1990s, an average of twentyfive new prisons were built in rural areas each year, resulting in 245 new
rural prisons between 1990 and 1999.112
The same rural areas that attract new prisons also attract businesses
looking to profit from the land’s energy resources.113 This is because rural
land is typically less expensive; smaller populations result in less people to
disagree with either the proposed prison or the proposed energy industry
operation; and the lands tend to be in depressed areas, so the people who
populate the lands are more easily convinced that a new prison or energy
industry operation will be an economic boon.114 As a result, prisons and
energy industry operations frequently become neighbors.

110 Tracy Huling, Building a Prison Economy in Rural America, in INVISIBLE PUNISHMENT: THE
COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT (Marc Mauer & Meda Chesney-Lind eds.,
2002), http://www.prisonpolicy.org/scans/building.html [http://perma.cc/7F2T-M7WL].
111 Id.
112 Id.
113 See, e.g., JASON P. BROWN ET AL., U.S. DEP’T OF AGRIC., EMERGING ENERGY INDUSTRIES AND
RURAL GROWTH 2, 29 (2013), http://www.ers.usda.gov/media/1229549/err159.pdf [http://perma.cc/
RP3Q-RU5P] (“Unconventional natural gas extraction [hydraulic fracking] . . . [is] most likely to occur
in rural areas because of resource availability. The growth in gas production largely follows the location
of unconventional gas formations, covering large rural areas in Colorado, Wyoming, Arkansas,
Louisiana, Oklahoma, and Texas, as well parts of the Appalachian region such as areas in New York,
Pennsylvania, Ohio, and West Virginia. . . . [T]he abundance of natural gas and the profitability of
extraction under normal market conditions suggest that natural gas development will continue to expand
across the United States.”); Stratford Douglas & Anne Walker, Coal Mining and the Resource Curse in
the Eastern United States 4 (Aug. 18, 2015) (unpublished manuscript), http://papers.ssrn.com
/sol3/papers.cfm?abstract_id=2385560 [http://perma.cc/RQ7K-EQXS] (discussing the abundance of
coal in the Appalachian region, and noting its production in the region “currently accounts for over one
third of all coal produced annually in the United States, and over half of cumulative U.S. coal
production to date”).
114 See Huling, supra note 110 (“[T]he competition for prison ‘development projects’ has become
fierce and political. In order to be considered competitive in the bidding wars for public prisons, rural
counties and small towns give up a lot to gain what they hope will be more: offering financial assistance
and concessions such as donated land, upgraded sewer and water systems, housing subsidies, and, in the
case of private prisons, property and other tax abatements.”); RYAN S. KING, MARC MAUER & TRACY
HULING, THE SENTENCING PROJECT, BIG PRISONS, SMALL TOWNS: PRISON ECONOMICS IN RURAL
AMERICA 19 (2003), http://www.sentencingproject.org/doc/inc_bigprisons.pdf [http://perma.cc/PB6YNG3J] (arguing that supposed economic benefits of prisons to rural areas are not actually realized); see
also, e.g., ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., supra note 1, at 15 (discussing a
politician’s push “to bring [a] new prison to Fayette County, hailing it as an important form of
economic development for the poorest county in the state”); Markowitz, supra note 13 (analyzing the
relationship between former coal industry towns, economic depression, and the willingness of
communities to accept new prisons, as well as describing the history behind State Correctional
Institution Fayette’s construction).

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B. Current Examples of Human-Made Environmental Hazards
Facing Prisons
1. Mountaintop Mining in Appalachia.—In the 1990s, nine new
prisons opened in Appalachia’s Southern Coal Fields region, and by 2001,
three new federal prisons were under construction.115 The Southern Coal
Fields region is also a booming region for mountaintop mining.
Mountaintop mining (also called mountaintop removal) is a kind of surface
mining that “involves stripping vegetation and topsoil from ridges and
peaks, using explosives to remove up to hundreds of feet of rock above and
between the coal seams, and disposing of excess rock into adjacent
valleys.”116 It has become a widespread industry since the mid-1990s.117 The
environmental impacts of mountaintop mining are well documented. The
process results in deforestation, the burial of headwater streams, and “[t]he
evidence is strong that [mountaintop mining] is highly polluting to the air
and water of local environments during and after mining activity.”118 A
recent study found that “[r]esidents of mountaintop mining counties [in
Kentucky, Tennessee, Virginia, and West Virginia] reported significantly
more days of poor physical, mental, and activity limitation and poorer selfrated health” than those in other areas.119 When faced with these types of
environmental and health concerns, residents of a community can take
political action, like petitioning the Environmental Protection Agency
(EPA), or even filing a lawsuit to halt the allegedly hazardous process.120
Prisoners housed in prisons located near the same environmental hazards,
however, have no such options.121
2. Coal Ash Dump in Pennsylvania.—In September of 2014, the
Abolitionist Law Center and the Human Rights Coalition issued a report
115

See Huling, supra note 110.
Michael Hendryx, Poverty and Mortality Disparities in Central Appalachia: Mountaintop
Mining and Environmental Justice, J. HEALTH DISPARITIES RES. & PRAC., Spring 2011, at 44, 45.
117 See id.
118 Id.
119 Keith J. Zullig & Michael Hendryx, Health-Related Quality of Life Among Central Appalachian
Residents in Mountaintop Mining Counties, 101 AM. J. PUB. HEALTH 848, 848 (2011),
http://ohvec.org/issues/mountaintop_removal/articles/health/hrqol_mtm_ajph_2011.pdf
[http://perma.cc/292U-4RLV].
120 See, e.g., Press Release, Earthjustice, Groups Petition U.S. Environmental Protection Agency
for Water Quality Standard in Appalachia to Protect Communities from Mountaintop Removal Mining
Pollution (May 7, 2013), http://earthjustice.org/news/press/2013/groups-petition-u-s-environmentalprotection-agency-for-water-quality-standard-in-appalachia-to-protect-communit
[http://perma.cc/FKC5-ADCX].
121 Whether prisoners have standing to file citizen suits for EPA violations is a question worth
exploring, as it offers another solution for prisoners facing human-made environmental health hazards,
but is beyond the scope of this Note.
116

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detailing the poor health of prisoners at State Correctional Institution (SCI)
Fayette.122 The report theorized that such health problems are a result of the
prison’s close proximity to a coal ash dump.123 The report detailed high
rates of cancer and other health problems among the prison population that
prisoners did not experience before they arrived at the prison.124 For
example: “Eleven prisoners died from cancer at SCI Fayette between
January of 2010 and December of 2013. Another six prisoners have
reported being diagnosed with cancer at SCI Fayette, and a further eight
report undiagnosed tumors and lumps.”125
Questions about causation and confounding variables for each
particular case have merit, yet the report suggests a strong link between
environmental toxins from the coal ash dump and the health impact it has
on nearby prisoners. The report maintains that the prison’s location next to
the coal ash dump may violate the Eighth Amendment.126 Although the
problems at SCI Fayette are striking, they are not unique. Several prisons
around the country sit dangerously close to coal ash dump sites.127
3. Coal Ash Spill in Tennessee.—On December 22, 2008, a dike in
the Tennessee Valley Authority Kingston Fossil power plant failed,
releasing 5.4 million cubic yards of coal ash sludge into the nearby river
and over 300 acres of land.128 It was the largest coal ash spill in the
country’s history.129 As explained by the Tennessee Department of Health,

122

ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., supra note 1.
Id. at 2.
124 Specifically, the Report documented the following findings:
More than 81% of responding prisoners (61/75) reported respiratory, throat, and sinus conditions,
including shortness of breath, chronic coughing, sinus infections, lung infections, chronic
obstructive pulmonary disease, extreme swelling of the throat, as well as sores, cysts, and tumors
in the nose, mouth, and throat. 68% (51/75) of responding prisoners experienced gastrointestinal
problems, including heart burn, stomach pains, diarrhea, ulcers, ulcerative colitis, bloody stools,
and vomiting. 52% (39/75) reported experiencing adverse skin conditions, including painful
rashes, hives, cysts, and abscesses. 12% (9/75) of prisoners reported either being diagnosed with a
thyroid disorder at SCI Fayette, or having existing thyroid problems exacerbated after transfer to
the prison.
Id. at 1.
125 Id. at 2.
126 Id.
127 Markowitz, supra note 13 (“Paul Wright, the director of the Human Rights Defense Center
(HRDC), says building prisons near dump sites has happened for the last 15 years, if not longer . . . .
Wright, working with Prison Ecology, a project that grew out of the HRDC, is currently fighting the
U.S. Bureau of Prisons, which is planning to build a new federal prison in Letcher County, Kentucky,
right on top of a former coal mine.”).
128 Duane W. Gang, 5 Years After Coal-Ash Spill, Little Has Changed, USA TODAY (Dec. 23,
2013, 12:31 PM), http://www.usatoday.com/story/news/nation/2013/12/22/coal-ash-spill/4143995/
[http://perma.cc/6EXT-DTZB].
129 Id.
123

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“When coal is burned, the metals in the coal become concentrated in the
ash. The metals in the coal ash have the potential to cause harm to the
environment[] and to people.”130
Even though the Tennessee Department of Health’s conclusions were
positive overall, the Department found hazards related to breathing in air
without “adequate dust suppression measures,” and that airborne matter
could “harm people’s health, especially for those persons with pre-existing
respiratory or heart conditions.”131 “Such harm could include upper airway
irritation and aggravation of pre-existing conditions such as asthma,
emphysema, and other respiratory or cardiovascular conditions.”132 In the
wake of the disaster, nearly all of the residents who lived near the spill
moved away.133
One population of people who could not move away were those
incarcerated at Roane County Jail, less than four miles from the plant.134
Morgan County Correctional Complex and Loudon County Jail are also
located nearby. If any of these people experienced, or continue to
experience, health issues potentially connected to the spill or its residual
effects, they might have colorable Eighth Amendment conditions claims.
Still, the distance between the above facilities and the spill site make it a
less compelling case than the SCI Fayette prison in LaBelle,
Pennsylvania.135 However, given that there are “over 1,000 operating coal
ash landfills and ponds and many more hundreds of ‘retired’ coal ash
disposal sites”136 in the country, people who live in prisons near these
130

TENN.
DEP’T
OF
HEALTH,
PUBLIC
HEALTH
ASSESSMENT
xvii
(2010),
http://health.state.tn.us/Environmental/PDFs/pha-e-TVA_Kingston_Fossil_Plant_Final.pdf
[http://perma.cc/CJY9-4TBS].
131 Id. at xxxi.
132 Id.
133 Gang, supra note 128 (“TVA bought 180 properties and 960 acres from private landowners in
the wake of the spill.”); see also TENN. DEP’T OF HEALTH, supra note 130, at xvii (“As of August 2009,
TVA had compensated more than 100 property owners living near or affected by the spill. Many
residents, whose yards backed up to the coves, were concerned about the health effects of ash in their
yards and in the coves. People farther from the site were concerned about health effects of airborne
ash.”).
134 See Driving Directions from Tennessee Valley Authority Kingston Fossil Power Plant, Steam
Plant Road, Harriman, TN, to Roane County Jail, Kingston, TN, GOOGLE MAPS,
www.google.com/maps (searched “from Steam Plant Road, Harriman, TN to Roane County Jail”).
135 For maps of the affected area, see Ryan Carlyle, Illiteracy About this Energy Source Is Outright
Killing Millions of People Worldwide Every Year, BUS. INSIDER (June 20, 2015, 10:00 AM),
http://www.businessinsider.com/heres-how-science-illiteracy-is-outright-killing-millions-of-peopleevery-year-2015-6 [http://perma.cc/L6DV-KQN2], and Site of the Spill and How Fly Ash is Produced,
TIMES
(Dec.
25,
2008),
http://www.nytimes.com/imagepages/2008/12/25/us/
N.Y.
20081225_SLUDGE_GRAPHIC.html [http://perma.cc/PV7H-WWZJ].
136 Coal Ash Contaminated Sites, EARTHJUSTICE, http://earthjustice.org/features/coal-ashcontaminated-sites [http://perma.cc/P37F-5FPD].

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potentially hazardous sites could consider Eighth Amendment conditions
claims—especially in the wake of dangerous spills.
4. Prisons Near Hydraulic Fracking Operations.—Other potential
claims might stem from prisons housed near sites of a growing arm of the
energy industry: hydraulic fracking. Fracking is a “process of drilling down
into the earth before a high-pressure water mixture is directed at the rock to
release the gas inside.”137 “Water, sand and chemicals are injected into the
rock at high pressure which allows the gas to flow out to the head of the
well.”138 The fracking industry is controversial for several reasons,
including its health effects on people.139 A recent Yale study found that
people in closer proximity to “natural gas fracking wells were more likely
to have skin and respiratory symptoms than those living farther away.”140
Moreover, numerous studies have found connections between hydraulic
fracking and groundwater contamination.141 Increasing seismic activity has
also been noted as a potential concern.142 With more than 2.3 million

137 David Shukman, What Is Fracking and Why Is It Controversial?, BBC NEWS (June 27, 2013),
http://www.bbc.com/news/uk-14432401 [http://perma.cc/2QMT-A85C].
138 Id.
139 See, e.g., N.Y. STATE DEP’T OF HEALTH, A PUBLIC HEALTH REVIEW OF HIGH VOLUME
HYDRAULIC FRACTURING FOR SHALE GAS DEVELOPMENT 2 (2014), http://www.health.ny.gov/
press/reports/docs/high_volume_hydraulic_fracturing.pdf [http://perma.cc/X5EP-2FX3] (“[T]he overall
weight of the evidence from the cumulative body of information contained in this Public Health Review
demonstrates that there are significant uncertainties about the kinds of adverse health outcomes that
may be associated with [fracking], the likelihood of the occurrence of adverse health outcomes, and the
effectiveness of some of the mitigation measures in reducing or preventing environmental impacts
which could adversely affect public health. Until the science provides sufficient information to
determine the level of risk to public health . . . and whether the risks can be adequately managed, DOH
recommends that [fracking] should not proceed in New York State.”); Peter M. Rabinowitz et al.,
Proximity to Natural Gas Wells and Reported Health Status: Results of a Household Survey in
Washington County, Pennsylvania, 123 ENVTL. HEALTH PERSP. 21, 21 (2015), http://ehp.niehs.nih.gov/
wp-content/uploads/advpub/2014/9/ehp.1307732.pdf
[http://perma.cc/LGU8-CDYZ]
(providing
preliminary conclusions from a study on the public health impact of fracking near residential areas and
finding that “proximity of natural gas wells may be associated with the prevalence of health symptoms
including dermal and respiratory conditions in residents living near natural gas extraction activities”).
140 Ed Stannard, Yale Study: Health Problems Found in People Living Near Fracking Wells, NEW
HAVEN REG. (Sept. 10, 2014, 12:58 AM), http://www.nhregister.com/general-news/20140910/yalestudy-health-problems-found-in-people-living-near-fracking-wells
[http://perma.cc/SBX2-7KA5]
(discussing the study described in Rabinowitz et al., supra note 139).
141 N.Y. STATE DEP’T OF HEALTH, supra note 139, at 5–6 (summarizing studies that have variously
found methane migration into groundwater, contamination caused by gas leakage, the potential for
explosions, concerns regarding surface spills and improper disposal of radioactive waste, stray gas
contamination, and radium isotope accumulation in disposal and spill sites, all of which can affect the
quality of drinking water).
142 Id. at 6; see also Kelly Connelly et al., How Oil and Gas Disposal Wells Can Cause
Earthquakes, STATEIMPACT, http://stateimpact.npr.org/texas/tag/earthquake/ [http://perma.cc/K7RYMYHX] (explaining that “the disposal of drilling wastewater used in fracking has now been
scientifically linked to earthquakes” and noting the increasing frequency and strength of earthquakes
near Dallas and Fort Worth, Texas, home to a growing fracking industry).

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fracking wells across the country,143 it is likely that some sites neighbor
existing prisons and jails,144 which could allow for Eighth Amendment
unconstitutional conditions claims.
People who live near energy industry operations face serious health
risks. Unlike local populations, prisoners are uniquely vulnerable to such
risks. They lack the same level of political agency to effect change, they
lack the same access to healthcare, and they cannot simply move away if
they believe they are in the crossfires of human-made environmental health
hazards. Fortunately, prisoners can seek a remedy for such conditions
under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
III. HUMAN-MADE ENVIRONMENTAL HAZARDS AS THE BASIS FOR EIGHTH
AMENDMENT PRISON CONDITIONS CLAIMS
As demonstrated by the excessive heat cases, environmental hazards
left unmitigated by prison officials can form the basis for Eighth
Amendment prison conditions claims. When the environmental hazards are
human-made, the result should be no different. This Part will present a
litigation roadmap, arguing for an application of the excessive heat case
precedent, as well as other similar precedent, to situations in which prisons
neighbor human-made environmental hazards. To do so, this Part first
discusses the best types of proof to meet the objective and subjective
elements of a claim, while also anticipating and addressing defenses. It then
offers policy arguments that further support the viability of conditions
claims based on human-made environmental hazards.
A. Proving the First Element: Substantial Risk of Serious Harm
As previously stated, there are two elements in proving an
unconstitutional prison conditions claim. The first element—the objective
element—is that the plaintiff faced a substantial risk of serious harm.145 If
the plaintiff has a current injury from the allegedly unconstitutional
condition, evidence of that injury may suffice to prove this element.146 If,
however, the plaintiff fears of a future injury from the allegedly
unconstitutional condition, the plaintiff must do more. She or he must
demonstrate that the future injury is serious, is likely to occur, and that it

143 See How Many People Are Affected By Fracking?, FORBES (Mar. 24, 2014, 10:08 AM),
http://www.forbes.com/sites/quora/2014/03/24/how-many-people-are-affected-by-fracking/
[http://perma.cc/NRA3-3XNW].
144 See supra Section II.A.
145 See supra note 40 and accompanying text.
146 See supra notes 68–72 and accompanying text.

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“violates contemporary standards of decency to expose anyone unwillingly
to such a risk.”147
Certain health concerns created by human-made environmental
hazards undoubtedly can be deemed sufficiently serious. For example, coal
ash chemicals can “cause or contribute to . . . skin, eye, nose and throat
irritation; asthma; emphysema; hypertension; anemia; heart problems;
nervous system damage; brain damage; liver damage; stomach and
intestinal ulcers; and many forms of cancer including skin, stomach, lung,
urinary tract, and kidney cancers.”148 Mountaintop mining can cause
contaminated groundwater, airborne toxins, and hazardous dust, which are
associated with health issues like chronic pulmonary disorders,
hypertension, lung cancer, and “chronic heart, lung, and kidney disease.”149
Such health concerns are comparable to heat stroke and other heat-related
illnesses, which courts have affirmed can be sufficiently serious for a
finding of unconstitutional conditions.150
Faced with this kind of claim, defendants are likely to dispute the
existence of a link between the industry operation and any prisoner health
problems. This factual issue complicates the first prong and highlights how
vital the underlying causation evidence would be. Types of proof to
demonstrate causation as well as the seriousness of the risk might include

147

Helling v. McKinney, 509 U.S. 25, 36 (1993).
ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., supra note 1, at 5 (citing BARBARA
GOTTLIEB ET AL., COAL ASH: THE TOXIC THREAT TO OUR HEALTH AND ENVIRONMENT: A REPORT
FROM PHYSICIANS FOR SOCIAL RESPONSIBILITY AND EARTHJUSTICE, 1–5 (2010)).
149 M.A. Palmer et al., Mountaintop Mining Consequences, 327 SCIENCE, Jan. 8, 2010, at 148, 148,
http://www.filonverde.org/images/Mountaintop_Mining_Consequences_Science1[1].pdf
[http://perma.cc/32AJ-CCV7] (“Even after mine-site reclamation (attempts to return a site to premined
conditions), groundwater samples from domestic supply wells have higher levels of mine-derived
chemical constituents than well water from unmined areas. Human health impacts may come from
contact with streams or exposure to airborne toxins and dust. State advisories are in effect for excessive
human consumption of Se in fish from MTM/VF affected waters. Elevated levels of airborne,
hazardous dust have been documented around surface mining operations. Adult hospitalizations for
chronic pulmonary disorders and hypertension are elevated as a function of county-level coal
production, as are rates of mortality; lung cancer; and chronic heart, lung, and kidney disease.”
(endnotes omitted)).
150 E.g., Ball v. LeBlanc, 792 F.3d 584, 593–94 (5th Cir. 2015) (affirming a finding of substantial
risk of serious harm based on heat stroke and heat-related illnesses); Gates v. Cook, 376 F.3d 323, 340
(5th Cir. 2004) (“Based on the evidence presented, we cannot say that the trial court’s finding that the
probability of heat-related illness is extreme at Unit 32–C was clearly erroneous. Thus, this condition
presents a substantial risk of serious harm to the inmates.”).
148

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scientific studies,151 medical expert testimony,152 and even government rules
and regulations.153
Plaintiffs alleging future injury claims will also need to present
evidence that the injury is likely to occur. The Helling Court made clear
that “a remedy for unsafe conditions need not await a tragic event,” citing a
variety of contexts in which future injury conditions claims had been
won.154 In addition, the Court posited that prisoners likely could
“successfully complain about demonstrably unsafe drinking water without
waiting for an attack of dysentery.”155 Helling therefore suggests that
prisoners could also successfully complain about demonstrably unsafe
environmental hazards without waiting for an illness or injury to
materialize. Some environmental hazards may result in more immediate
injuries,156 but conceivably the injuries from other hazards may take years
to manifest. Given the uniqueness of claims based on human-made
environmental health hazards, experts who can speak to the likelihood of
the injury or illness would be vital to a plaintiff’s case.157

151

E.g., supra notes 139–140.
See, e.g., Ball, 792 F.3d at 593 (affirming the district court’s finding of substantial risk of
serious harm, which was largely based on a doctor’s testimony).
153 E.g., Disposal of Coal Combustion Residuals From Electric Utilities, 80 Fed. Reg. 21,302,
21,302 (Apr. 17, 2015) (EPA Final Rule for coal combustion residuals (coal ash) disposal, effective in
October 2015, explicitly acknowledging the environmental and human health risks of coal ash
operations).
154 Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (first citing Hutto v. Finney, 437 U.S. 678
(1978) (crowded cells with sick prisoners constituted a claim even though the infection might not affect
everyone and the harm might not be immediate); then citing Gates v. Collier, 501 F.2d 1291 (5th Cir.
1974) (threats to safety from exposed wiring and deficient firefighting measures allowed for relief); and
then citing Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980) (court found that prisoners need not
wait to be assaulted before gaining relief)). In the context of an excessive heat case, the Fifth Circuit
recently confirmed that “inmates need not show that death or serious injury has already occurred” to
prove unconstitutional conditions. Ball, 792 F.3d at 593. In Ball, that the prisoner–plaintiffs had not yet
suffered any heat-related illness did not rebut the conclusion that excessive heat caused a substantial
risk of serious harm to the plaintiffs. Id.
155 Helling, 509 U.S. at 33.
156 See ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., supra note 1, at 8–9 (discussing
symptoms in prisoners consistent with coal ash exposure that commenced soon after arriving at the
prison).
157 For example, in Gates v. Cook, the lower court’s injunction requiring the prison to mitigate the
high temperatures was affirmed, with the circuit court citing the plaintiff’s expert who testified “it was
‘very likely’ that, under current conditions on Death Row, an inmate will die of heat stroke or some
other heat-related illness.” 376 F.3d 323, 339 (5th Cir. 2004); see also Melvin Gutterman, The Contours
of Eighth Amendment Prison Jurisprudence: Conditions of Confinement, 48 SMU L. REV. 373, 406–07
(1995) (discussing the benefits of scientific evidence in showing harm, but concluding that
“[d]etermining an acceptable degree of risk is extremely problematic” since “[a]t the bottom, there is no
way for the Court to conclusively capture society’s ‘contemporary notions of decency’ and, ultimately,
individual justices do read their own values into the Eighth Amendment.” (footnotes omitted)).
152

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Lastly, plaintiffs must argue that the risk of injury violates
contemporary standards of decency.158 This can be approached in several
ways. For instance, plaintiffs could argue that the severity of the future
injury itself violates standards of decency—a strong argument for injuries
that could result in death.
Conversely, plaintiffs may face difficulty if they argue that the right to
be free from human-made environmental hazards, not the resulting injury,
violated standards of decency. Still, prisoners could potentially contend that
their very lack of agency in relation to their proximity to harmful energy
operations violates contemporary standards of decency. Such an argument
would best be supported by evidence that nonprisoner community members
moved away from the industry for health or safety reasons.159 Additionally,
evidence of communities trying to stop the energy industry from placing
roots nearby—perhaps via political or legal action160—would also
strengthen a claim that a prisoner’s proximity alone constitutes a violation
of contemporary decency standards. Although the available evidence
depends on the facts of a given case, precedent at least makes it plausible
that plaintiffs alleging unconstitutional conditions based on human-made
environmental hazards could establish a substantial risk of serious harm.
B. Proving the Second Element: Deliberate Indifference
In addition to proving the objective element, a successful Eighth
Amendment conditions claim requires plaintiffs to prove the subjective
element, that prison officials were deliberately indifferent to the risk.161 As
discussed, Farmer v. Brennan is the landmark Supreme Court case that
gave meaning to the amorphous term.162 In short, deliberate indifference
means prison officials must have (1) known of the risk and (2) disregarded
the risk.
1. Knowledge of the Risk.—Whether a prison official knows about
the risk is a factual question “subject to demonstration in the usual ways,
including inference from circumstantial evidence.”163 Moreover, “a

158 See Helling, 509 U.S. at 36 (“[Proving the objective element] requires a court to assess whether
society considers the risk that the prisoner complains of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must
show that the risk of which he complains is not one that today’s society chooses to tolerate.”).
159 See supra note 133 and accompanying text for an example.
160 See, e.g., Press Release, Earthjustice, supra note 120.
161 Wilson v. Seiter, 501 U.S. 294, 303 (1991); see also Farmer v. Brennan, 511 U.S. 825, 842
(1994).
162 See supra notes 73–76 and accompanying text.
163 Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004) (citing Farmer, 511 U.S. at 842).

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factfinder may conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious.”164 Plaintiffs alleging
unconstitutional conditions based on human-made environmental hazards
could consider both approaches, which often overlap.
Circumstantial evidence that suggests prison officials know about a
risk may include conversations among officials about the risk, prisoner
grievances or medical records drawing attention to the risk,165 or
governmental regulations discussing the risk.166 Other kinds of
circumstantial evidence might include whether the environmental hazard
was known prior to the prison’s construction,167 whether there was any
publicity surrounding the industry or its risks, and whether there were any
lawsuits challenging the industry based on health or safety concerns.168 The
more a plaintiff can show that the risk was “longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past,” or even that
prison officials were “exposed to information concerning the risk,” the
greater argument plaintiffs have in proving a defendant’s knowledge of the
risk.169
For example, the federal government recently proposed building a
new prison in Letcher County, Kentucky.170 The proposal has drawn sharp
opposition from environmental and prisoner rights organizations.171 One of

164

Id.
See, e.g., id. at 340 (affirming trial court’s deliberate indifference finding “based on the open
and obvious nature of these conditions and the evidence that inmates had complained of symptoms of
heat-related illness”).
166 See, e.g., Disposal of Coal Combustion Residuals From Electric Utilities, 80 Fed. Reg. 21,302,
21,302 (Apr. 17, 2015) (EPA Final Rule for coal combustion residuals (coal ash) disposal, effective in
October 2015, explicitly acknowledging the environmental and human health risks of coal ash
operations). Given that governmental officials are the defendants in prison conditions cases,
government acknowledgment in final rules that there are serious risks associated with a hazard is strong
circumstantial evidence of knowledge of risk.
167 See, e.g., Nieves, supra note 109 and accompanying text.
168 See, e.g., Citizens Coal Council v. Matt Canestrale Contracting, Inc., 51 F. Supp. 3d 593, 595
(W.D. Pa. 2014) (denying a motion to dismiss a lawsuit “to abate an imminent and substantial
endangerment to health or the environment allegedly caused by solid waste located on the LaBelle Coal
Refuse Disposal Area”).
169 Farmer v. Brennan, 511 U.S. 825, 842 (1994). Sometimes, prison officials may complain about
the very same conditions as prisoners—strong evidence of their knowledge of the risk. See Markowitz,
supra note 13 (noting a guard at State Correctional Institution Fayette filed a complaint with the
Department of Environmental Protection about the nearby coal ash dump).
170 Meeting Notice, 80 Fed. Reg. 7497, 7497 (Feb. 10, 2015).
171 E.g., Press Release, Ctr. for Biological Diversity & Human Rights Def. Ctr., Kentucky Prison
Project Opposed Over Threats to Endangered Wildlife, Water and People (July 31, 2015),
http://www.biologicaldiversity.org/news/press_releases/2015/letcher-county-prison-07-30-2015.html
[http://perma.cc/L83Y-BMHU]; see also Ryan Adams, Proposed Letcher County Federal Prison
Brings
Opposition,
WYMT
(Mar.
31,
2015,
6:36
PM),
http://www.wkyt.com/
165

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the reasons is that the proposed location is a former mountaintop mining
site, which carries with it a host of health and safety concerns for the
would-be prisoners.172 The Federal Bureau of Prisons held public meetings
and accepted public comment on its Environmental Impact Statement in
which citizens could share their concerns.173 Were the proposed prison
constructed, and were a future prisoner to bring an Eighth Amendment
conditions claim based on the mountaintop mining hazards, prison officials
would be hard-pressed to deny their knowledge of the alleged risks. This
knowledge is crucial for proving the element of deliberate indifference.
Outside reports of health risks seen by prison officials can also bolster
claims of defendants’ knowledge of a risk. For example, in Smith v. United
States,174 the Tenth Circuit relied upon the allegation that prison guards
were aware of a survey that documented the existence of asbestos in the
prison to find that the prisoner–plaintiff had alleged enough to show
deliberate indifference at the pleading stage.175 Plaintiffs could employ a
similar strategy in Eighth Amendment conditions claims based on humanmade environmental hazards. Conducting research about the risks of a
nearby industry and presenting it to prison officials preempts a possible
defense that the officials were not aware of the “underlying facts indicating
a sufficiently substantial danger and that they were therefore unaware of a
danger.”176
The Abolitionist Law Center and Human Rights Coalition’s report
offers an illustration. The report first argues that prison officials’ awareness
that the prison “was built on and around a toxic dump would demonstrate

wymt/home/headlines/Proposed-sites-of-Letcher-County-federal-Prision-bring-opposistion—
298206561.html [http://perma.cc/GG5N-MRK8].
172 Paul Wright, Exec. Dir., Human Rights Def. Ctr., Comment Letter on Proposed USP/FPC
Letcher
County
Environmental
Impact
Statement
6–12
(Mar.
30,
2015),
https://www.prisonlegalnews.org/media/publications/Letcher%20Co%20KY%20HRDC%20comment
%20on%20BOP%20Draft%20EIS%203-30-15.pdf [http://perma.cc/R6VQ-86RC] (discussing in depth
the health and safety hazards caused by construction of the proposed prison).
173 See Meeting Notice, 80 Fed. Reg. at 7497.
174 561 F.3d 1090 (10th Cir. 2009).
175 See id. at 1105; see also LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998) (finding
summary judgment inappropriate due to fact issues surrounding whether prison officials had notice of
plaintiff’s exposure to asbestos).
176 Farmer v. Brennan, 511 U.S. 825, 844 (1994). In arguing they did not perceive any risk, and
thus had no knowledge of the risk, defendants may rely on a lack of scientific evidence, scientific
evidence that is in dispute, or, most simply of all, that they were unaware of any scientific evidence.
Again, whether or not they should have been aware does not amount to deliberate indifference. See id.
at 837–38 (“[A]n official’s failure to alleviate a significant risk that he should have perceived but did
not, while no cause for commendation, cannot under our cases be condemned as the infliction of
punishment.”). Faced with this kind of defense, plaintiffs should carefully consider who they name as
defendants. Perhaps some officials, like those at the policy-making level, would be aware of risks, and
others, like guards, would not.

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actual knowledge of a risk of adverse health consequences from
imprisoning people at the site.”177 The report also argues:
Aggregated medical records may . . . show patterns of health problems
consistent with exposure to environmentally toxic living conditions,
establishing that [the prison] officials knew . . . that prisoners were being
harmed by these toxins. Additionally, prisoner grievances and reports such as
this one will also create a record of actual knowledge of the harms imposed
upon prisoners at SCI Fayette.178

While the report makes strong arguments as to what evidence could be
used to show deliberate indifference, the report itself might be the strongest
evidence of all. As long as prison officials were made aware of the report,
its in-depth analysis of the health effects of the coal waste plant on the
nearby prisoner population would aid in proving the officials had
knowledge of the risk. Even more, a comprehensive report may contribute
to proving that the risk was disregarded—the second aspect of deliberate
indifference.
2. Risk Was Disregarded.—It is not enough that officials simply
knew of a substantial risk of serious harm; the element of deliberate
indifference requires that they disregarded the risk by “failing to take
reasonable measures to abate it.”179 Important to keep in mind, however, is
that deliberate indifference requires more than negligence.180 In conditions
cases based on human-made environmental hazards, one way plaintiffs can
prove that officers deliberately disregarded the risk is by showing the
absence of a prison policy addressing the risk.
In Helling, the Court noted that the prison’s new smoking policy
would “bear heavily on the inquiry into deliberate indifference,” because
the policy might show that prison officials were not indifferent to the
dangers of environmental tobacco smoke (secondhand smoke).181 That is,
the fact that prison officials had crafted a policy about secondhand smoke
showed some responsiveness to the risk. The opposite could have similar
persuasive force: the absence of a prison policy about a risk suggests that
prison officials were indifferent to the dangers at issue.

177

ABOLITIONIST LAW CTR. & HUMAN RIGHTS COAL., supra note 1, at 19.
Id.
179 Farmer, 511 U.S. at 847.
180 The Farmer Court rejected a standard that a “prison official who was unaware of a substantial
risk of harm to an inmate may nevertheless be held liable under the Eighth Amendment if the risk was
obvious and a reasonable prison official would have noticed it.” Farmer, 511 U.S. at 842; see also
Perez v. Oakland County, 466 F.3d 416, 431 (6th Cir. 2006) (“A finding of negligence does not satisfy
the deliberate indifference standard.”).
181 509 U.S. 25, 36–37 (1993).
178

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In response, defendants may concede indifference, but argue it was
not deliberate. In other words, their failure to address the risk was a result
of their ignorance about the severity of the risk.182 For instance, if officials
live in close proximity to the prisons, it cuts against an argument that
allowing prisoners to be exposed to these conditions is done with deliberate
indifference.
Yet, that prison officials live or work near a dangerous condition is not
necessarily a death knell to conditions cases. In Texas, the prison guard
union openly supported the heat litigation, calling the high temperatures
unbearable and dangerous.183 The fact that prison guards continue to work
in such conditions—albeit with water, ice, and restrictions during the
hottest parts of the day184—does not detract from their knowledge that the
heat was dangerous, and their failure to mitigate it for prisoners.
Another possible defense is that prison officials responded to the risk,
even if they were unsuccessful. This defense concedes knowledge of the
risk, but disputes the allegation that defendants were indifferent to it.185 For
example, in the current Texas heat litigation, the defendants inserted fans
and cooling units into some prisons after the lawsuit was filed.186 These
actions arguably show that officials were not indifferent to the risk of heatrelated illnesses. In a human-made environmental hazard case, analogous
measures could include providing breathing masks to mitigate polluted air,
or filtering unsafe water. However, open questions as to whether the
measures were adequate,187 and whether officials took such measures with
the genuine intention of mitigating the problem, would likely remain.188

182 For clarification purposes, this Note dissects the deliberate indifference element into two
requirements: (1) knowledge of the risk and (2) disregarding the risk. Some defenses like this one,
however, do not fit neatly into a single category and instead contest deliberate indifference as a whole.
183 Mike Ward, Guards to Join Convict Litigation Over Hot State Prisons, STATESMAN.COM (Aug.
29, 2013, 4:04 PM), http://www.statesman.com/news/news/guards-to-join-convict-litigation-over-hotstate-p/nZgSD/ [http://perma.cc/BVD9-RNTL].
184 Id.
185 E.g., Ball v. LeBlanc, 792 F.3d 584, 594–95 (5th Cir. 2015) (discussing defendants’ “trick” to
mitigate high temperatures after lawsuit was filed, which contributed to an inference that they “knew of
a substantial risk of serious harm to the Plaintiffs”); cf. Helling, 509 U.S. at 36 (suggesting the adoption
of a policy to address cigarette smoke in the middle of litigation could defend against the allegation of
deliberate indifference).
186 Mike Ward, Coolers Installed in Seven Texas Prisons in Summer-Heat Test, HOUS. CHRON.
(June 18, 2014, 10:34 PM), http://www.houstonchronicle.com/news/politics/texas/article/Coolersinstalled-in-seven-Texas-prisons-in-5562801.php [http://perma.cc/9MA8-8Z6C].
187 See De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (holding that plaintiff stated an
Eighth Amendment claim for relief, after acknowledging “that Appellees have provided De’lonta with
some measure of treatment to alleviate her GID symptoms,” but asserting that “just because Appellees
have provided De’lonta with some treatment consistent with the GID Standards of Care, it does not
follow that they have necessarily provided her with constitutionally adequate treatment”); Langford v.

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Finally, in many cases prison officials may have had nothing to do
with a nearby hazardous energy operation, which may lead some to
question whether an Eighth Amendment claim can stand. Precedent teaches
that the answer is yes, regardless of whether prison officials caused the
unconstitutional condition. In the excessive heat cases, prison officials need
not have caused the extreme heat for plaintiffs to prevail on their claim.
Whether and how prison officials mitigate the unconstitutional condition is
an issue of remedies.189
As can be seen, there are ample evidentiary considerations in
preparing for Eighth Amendment unconstitutional conditions litigation
based on human-made environmental hazards. Based on existing precedent,
and given the right evidence, such claims are both actionable and winnable.
C. Policy Arguments as Additional Support for the Viability of Claims
Policy arguments also support the viability of conditions claims based
on human-made environmental hazards. First, it is a long-settled principle
that every violation of a right deserves a remedy.190 The right to be free
from cruel and unusual punishment is violated when prisoners are
subjected to serious environmental hazards.
In addition, as has been discussed throughout this Note, prisoners lack
agency in removing themselves from the wake of environmental hazards.
They cannot participate fully in political activism; the vast majority cannot
vote on whether certain industries can operate in proximity to their
housing; and it is not clearly established that prisoners have standing to sue
agencies like the EPA to enforce environmental regulations more strictly.
Norris, 614 F.3d 445, 460 (8th Cir. 2010) (“[A] total deprivation of care is not a necessary condition for
finding a constitutional violation . . . .”).
188 Additionally, plaintiffs should be mindful in cases of hazards being caused by one-time
accidents or spills, from which defendants can argue that the temporary nature of the condition does not
rise to an Eighth Amendment violation. See, e.g., Whitnack v. Douglas County, 16 F.3d 954, 958 (8th
Cir. 1994) (“Here, the intolerable conditions lasted not more than 24 hours before the availability of
adequate cleaning supplies would make them tolerable. We recently reasoned that a prisoner confined
to an allegedly unsanitary cell for eleven days could not prove an Eighth Amendment violation because
of the ‘relative brevity’ of his stay, particularly when cleaning supplies were available to him. Other
courts have likewise found that certain conditions are not cruel and unusual because the inmate was
subjected to the condition for only a short period of time.” (citation omitted)).
189 It is worth reminding that the substantial risk of serious harm is enough to give rise to an Eighth
Amendment claim; one need not wait for the injury to appear. Thus, prison officials must do more than
simply provide adequate medical care in response to any human-made environmental health hazards. In
the heat cases, remedies were not limited to adding medical staff to address heat stroke after the fact.
Remedies included preventative measures like fans and cool showers. See, e.g., Gates v. Cook, 376 F.3d
323, 339 (5th Cir. 2004) (upholding the fourth injunction for the applicable prison population, which
required the prison to “provide fans, ice water, and daily showers when the heat index is 90 degrees or
above, or alternatively to make such provisions during the months of May through September”).
190 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803).

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Toxic Confinement

Given these limitations, allowing Eighth Amendment conditions claims
based on human-made environmental hazards is consistent with the Eighth
Amendment’s core purpose of preserving the dignity of man. It would
ensure the government lives up to its affirmative duty to protect based on
“the limitation which it has imposed on [prisoners’] freedom to act on
[their] own behalf.”191
From a practical standpoint, there should be no concern that allowing
these kinds of claims would open up the litigation floodgates. Barriers like
the Prison Litigation Reform Act,192 and immunity doctrines, will continue
to serve as gatekeepers, letting only the most meritorious claims through.
Lastly, there are significant potential costs of ignoring human-made
environmental hazards.193 By being cognizant of possible risks, prison
officials can mitigate health concerns with preventative care, or, for prisons
not yet constructed, can select property sites away from energy industries
with hazardous side effects.
CONCLUSION
Human-made environmental hazards should constitute a basis for
Eighth Amendment unconstitutional conditions claims. Compelling policy
reasons and the evolving nature of the Eighth Amendment support the need
for such claims. Moreover, as seen from the excessive heat cases,
environmental hazards already form the basis for successful claims. It is no
leap, then, to find that human-made environmental hazards may also form a
basis. In terms of likelihood of success, potential plaintiffs would be wise
to keep the two-pronged legal standard in mind when considering how to
proceed. Given the ever-growing energy industry, and that prisons and
energy industries are often located in the same pockets of the country,
prisoners face an ongoing risk of toxic confinement. The Eighth
Amendment can, and must, protect them.

191

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).
42 U.S.C § 1997e (2012).
193 See Brown v. Plata, 131 S. Ct. 1910, 1923 (2011) (upholding a remedial order to reduce
prisoner population in California prisons in order to minimize overcrowding, which was deemed to be a
contributing factor to unconstitutional medical conditions); see also Don Thompson, California Spends
$5M to Screen Inmates for Valley Fever, 89.3 KPCC (Jan. 11, 2015), http://www.scpr.org/
news/2015/01/11/49218/california-spends-5m-to-screen-inmates-for-valley/
[http://perma.cc/6WPSCWSG] (reporting on the multi-million dollar cost of testing prisoners for valley fever, which can cause
blindness, lung failure, and death, among other symptoms, in prisons located in California’s Central
Valley, which is known to host the fungus that causes the illness).
192

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