Are Race-Based Environmental Justice Policies Safe?

In recent years, we have seen a significant volume of federal and state environmental justice policy with attorneys general developing enforcement plans focused on environmental justice. Environmental and conservation agencies have adopted limited English proficiency (LEP) plans to ensure that LEP individuals are not left out of decision-making processes. And, in some states, there are environmental justice laws on the books that impact public hearings, siting, and permitting. Many of these recent policies require the government to consider race directly or indirectly when making decisions. In light of recent jurisprudence on the legality of race-conscious state action—particularly the U.S. Supreme Court’s most recent opinion striking down race-conscious university admissions policies—are these environmental justice policies safe? Can we remedy decades of environmental racism without accounting for race? The tried-and-true lawyer’s answer is: It depends.

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.