Are Race-Based Environmental Justice Policies Safe?

In June 2023, the Supreme Court issued its opinion for two companion cases about race-conscious university admissions: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et al. (together, SFFA). The Court held that the use of race as a factor in those circumstances was inconsistent with the Equal Protection Clause of the U.S. Constitution.

SFFA is the most recent opinion in a line of opinions on the use of race in university admissions that dates back to the 1970s. In Regents of University of California v. Bakke (1978), the Court began to apply strict scrutiny judicial review to race-conscious admissions policies and ended up striking down the University of California’s admissions policy because it used race as a definite and exclusive basis for decision-making. When applying strict scrutiny to a government action, the government defendant must persuade the courts that it has a compelling interest to act the way it did and that it acted in the most narrowly tailored means possible. In Grutter v. Bollinger (2003), Fisher I v. University of Texas (2013), and Fisher II v. University of Texas (2016), the Court continued to apply strict scrutiny to public university admissions programs that accounted for race as a factor.

With each subsequent opinion, the Court appeared to further tighten the strict scrutiny vice, making it more and more difficult for schools to justify their policies. For example, after Fisher added the requirement that the compelling interests of race-based programs be “sufficiently measurable” to permit appropriate judicial review, SFFA appeared to add the requirement that those compelling interests must also be “sufficiently coherent.”

These university admissions cases belong to a larger group of cases that scrutinize whether and how the government can ever act in reliance on a racial classification. In the City of Richmond (1989), the Supreme Court held that a city’s minority set-aside program which gave preference to minority business enterprises was unconstitutional. In Adarand Constructors, Inc. (1995), with regard to federal policy that incentivized contractors to hire minority subcontractors, the Court made clear that strict scrutiny would apply to all state actions based on race: both the ones that disproportionately benefit white individuals and those that benefit minority groups. 

As soon as the SFFA opinion was released, the internet was abuzz with discussion about the opinion’s potential to impact environmental justice policies. The California Department of Justice created an Environmental Justice Bureau. Can California’s attorney general focus resources on the enforcement of environmental laws to benefit environmental justice communities? In Massachusetts, the environmental justice policy defines “Environmental Justice (EJ) Population” as a neighborhood that meets one of many criteria, including one where “minorities comprise 40 percent or more of the population.” The policy requires enhanced public participation opportunities for such populations—does that pass constitutional muster? New Jersey’s landmark environmental justice statute defines “overburdened community” in part as a census block group where “at least 40 percent of the residents identify as minority.” The law goes on to say that applicants seeking pollution permits for facilities to be located in an overburdened community must also prepare an environmental justice impact statement and may have to establish that the new facility “will serve a compelling public interest in the community where it is to be located[.]” Are such additional permitting requirements consistent with the current Supreme Court’s conception of the Equal Protection Clause?

This discussion is not new to the environmental justice legal community. Years ago, Professor Sheila R. Foster opined on these types of questions and provided the best outline of an answer that we have. Foster argued that many environmental justice policies would be more likely to survive the application of strict scrutiny if “they emanate[d] from and are applied as a matter of core legislative or executive functions.” Core legislative and executive functions would include voting district development, criminal and civil enforcement discretion, and, most relevant for our purposes, regulating to protect the public health and welfare.

Opinions like SFFA make strict scrutiny even stricter and send a signal to opponents of race-consciousness that it may be easier than ever to achieve a return on litigation investment. This is happening at the same time that states are taking both race-conscious and race-neutral approaches to environmental justice policy. What may happen to these policies depends a lot on how they are categorized, written, and justified.

There is a good argument that exercising enforcement discretion to achieve environmental justice is probably safe. First, the exercise of enforcement discretion is one of the core government functions that Foster described. Second, the Supreme Court has already set quite a high bar for challenges based on discriminatory selective prosecution. Similar leeway almost certainly exists for decisions about civil enforcement. Therefore, attorneys general can probably choose to prioritize enforcement of environmental and other laws to achieve more for environmental justice communities, even if those environmental justice communities can be defined based on minority composition.

The question is more difficult to answer for policies that define environmental justice communities based on race and then modify the way that siting or permitting works for facilities proposed in those communities. Much depends on what has gone into the definitions. In many court cases striking down race-based policy, the focus has been on arbitrary presumptions based on race. For example, in Adarand, the issue was the presumption that minority status should automatically signify social and economic disadvantage. In the environmental regulation context, however, legislatures and agencies often rely on demographic, public health, and other community-level technical analyses to determine the impacts of pollution and how standards should be set. If a government can rely on technical data and analysis to justify the designation of race-based communities as especially vulnerable to categories of polluting activity, it may be easier to avoid the allegation of arbitrary race-based presumptions.

There are also questions about policies that guide money to environmental justice communities. The Sixth Circuit in Vitolo v. Guzman (2021) held that the Small Business Administration cannot give COVID-19 relief fund priority to applicants based on gender or race. The Biden administration has tried to avoid a confrontation with the courts on its environmental justice investment policies largely by keeping them race-neutral but accounting for other characteristics that can serve as proxies for race. For example, when developing its screening tool to identify environmental and climate justice communities that could be prioritized for federal funding, they left race out of the tool altogether and focused instead on criteria such as flood risk, asthma rates, and air pollution exposure, which can also serve as proxies for race. This approach has disappointed many environmental justice communities as a matter of principle and can miss the mark because race, unfortunately, can be the best predictor of environmental injustice.

The SFFA opinion is certainly not the death knell for race-conscious environmental justice policy as so many have assumed. But there is an ever-tightening strict scrutiny vice and an emboldened group of environmental justice opponents willing to apply it. We should expect that more federal, state, and local environmental justice policies will be put to the test.