The Supreme Court and the Fate of Environmental Justice
By Nina Jacobs, May 8, 2023
Why the Supreme Court’s decision on affirmative action can have severe repercussions for environmental justice laws.
Advocates for environmental justice argue that communities of color experience significant health inequalities and disproportionate exposure to pollution as a result of past racialized policies that include housing segregation and the placement of highways, factories, and landfills. By fighting for investments in air quality monitoring, permitting safeguards, regulatory improvements, and financing to prepare for the repercussions of climate change, they have pushed state legislators to tackle such inequities. Unfortunately, the future of environmental justice policies hangs in the balance due to recent challenges to affirmative action; there are two pending Supreme Court cases that examine the legality of affirmative action as it relates to university admission. If affirmative action is overturned, there could be legal challenges to current and future environmental justice laws that focus on equity for marginalized communities based on race.
“If somehow you don’t take race into account, you are not creating a tool that can get at the heart of the problem.”
Currently, there are two different cases that are questioning admissions policies at the University of North Carolina and Harvard. Those who oppose affirmative action say that these race-conscious policies violate the 14th Amendment’s guarantee of equal protection under the law. On the other hand, supporters of affirmative action say that the 14th Amendment was created to “secure equality for victims of discrimination.” If the courts rule against affirmative action, then current and future environmental justice laws will be threatened. Democrats are concerned that they may need to overhaul state laws in order to avoid potential legal challenges.
Legislators may need to revise 2023 environmental justice proposals to exclude race, although it is not clear whether they will choose to do so. One New Jersey state senator addressed the impact of this uncertainty on legislation, stating that "this could have a seismic impact on how public policy is crafted." However, many Democrats still intend on defending their environmental justice laws as written, even as they prepare to change the wording if it becomes necessary. Pricey Harrison, a representative of North Carolina, admitted that “if the Supreme Court undermines the ability to take race considerations into account when engaged in government action, that's a real problem … we’ll make sure to put protections in place in case the court does something.” Some states that have already passed environmental justice laws or will attempt to address it in their 2023 bills include New Jersey, Pennsylvania, Washington, Maryland, Maine, and North Carolina.
While some states may struggle with this new approach to drafting environmental justice policies, there are some successful examples that can serve as models. Last year, the Biden Administration released the "Climate and Economic Screening Tool" in order to help funnel money to communities most in need. The tool’s language did not include race as one of its 21 indicators, which was likely done to protect the effort from legal issues such as these cases. Despite lacking the language to specify race as an indicator, a report from Grist explained that "many of the criteria that the tool uses — proximity to hazardous facilities, linguistic isolation, and proximity to traffic, among others — are effectively functioning as proxies for race." Therefore, the Biden administration can ensure environmental justice concerns are addressed without using language that may raise a red flag.
Similar efforts have been made in California, which banned affirmative action in some sectors due to a 1996 ballot measure. The state’s cap-and-trade program requires 35% of revenue to be funneled back to disadvantaged communities without explicitly using race as an indicator. Instead, the state will determine its definition based on “geographic, socioeconomic, public health, and environmental hazard criteria.” Toni Massaro, a professor of law at the University of Arizona, suggests this approach may be the wisest moving forward: "The legally safest path for states today is to craft laws that redress environmental harms without using race or even tribal status per se." However, Professor Robert Bullard, known as the father of environmental justice, has encouraged states to explicitly acknowledge environmental racism in bill language until they receive a negative ruling. He further expressed hope that states would not give up the fight for environmental justice even if the courts deemed it unconstitutional.
Ultimately, the state of environmental justice policies is very uncertain moving forward. A lot hangs on the Supreme Court's decision on affirmative action, and the uncertainty of when the decision will be made is causing issues in drafting policies. Many legislators are torn on whether to use race-specific wording and fear the repercussions if they do. While fighting for environmental justice may be more difficult moving forward, it is vital that our lawmakers stand firm in solidarity with frontline communities and push for equitable climate policies.
Change The Chamber is a bipartisan coalition of over 100 student groups, including undergraduates, graduate students and recent graduates. Contact Change The Chamber at changeuschamber@gmail.com.