By Michael J. Wynne and Alexis Summers
Environmental Justice:
No longer a Nascent Concept but Hurdles Remain
W
e revisit a topic we addressed in this publication 21 years ago.1 The term in use frequently then was “Environmental Racism.” There were then and remain emotionally-charged debates centered on the struggle to deconstruct a policy choice or agency decision (including permitting decisions) and assess whether the decision was based on an insidious “intent to discriminate,” or whether the “effects” were sufficiently dispropor-
tionate to constitute discrimination against a protected class. Similarly charged was the debate surrounding the delineation of the degree to which a court (or jury) might infer intent from impact, similar to ongoing debates in courtrooms adjudicating issues under Sections 2 and 5 of the Voting Rights Act of 1965. This comparison perhaps has become less useful today because the U.S. Supreme Court (in the case of Section 5) has stricken or continues to water down or otherwise threaten (in the case of Section 2) these provisions. The premise is that the burden of environmentally polluting facilities, practices, and the associated hazards often falls most heavily on minority groups and that zoning or other land-use decisions are based at least in part on the intent to discriminate. The potential circumstances in which the issue may arise are many. Inherently problematic in any analysis is that the claimant must prove the decision-making body selected or reaffirmed an environmentally racist course of action “because of” its likely adverse effects on an identifiable, protected group of people. That proof standard remains a high hurdle. Moreover, there are few legal vehicles to mount environmental racism challenges. The limited cases that have been adjudicated include challenges under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, Section 1983, and private and public nuisance law causes of action. None has proven to be particularly effective in surmounting preliminary motion practice. The term now commonly used for what we were describing in 1998 is “environmental justice,” likely because it has become more evident that these burdens fall disproportionately on low-income areas, independent of considerations of race or national origin. The argument that income level and not race is the operative element in the environmental justice calculus has complicated efforts under existing statutes, including the Civil Rights Act of 1964, to raise these issues
