In recent years, some states have invested in air quality monitoring, added additional scrutiny to permit decisions and directed cleanup funds to minority communities that have borne the brunt of pollution for decades.
Now, in the wake of the U.S. Supreme Court’s recent decision striking down race-conscious college admissions policies, state lawmakers face a fresh conundrum: Can they address environmental racism without mentioning race?
” [Supreme Court] the majority really reinforced the idea that generalized government policy intended to correct past discrimination would not withstand constitutional scrutiny,” said Emily Hammond, an environmental law expert and professor at George Washington University Law School.
Lawmakers are trying to figure out what this ruling will mean for their environmental justice efforts. In some states, lawmakers expect the lawsuits to threaten their policies. The question is whether they will be able to defend these measures in court, or whether they will have to revise the laws in a race-neutral way to ensure they are not struck down.
Research has shown that communities of color face disproportionate levels of air and water pollution, less access to green spaces, and significant health disparities resulting from these factors. Such communities were often divided between highways, refineries, fossil fuel plants, and landfills.
“We want to acknowledge the harm we have done as a state through our environmental laws, permitting, waste and pollution, and reduce the harm to hard-hit communities that have historically been communities of color,” said the Minnesota state representative.
The Democrat helped pass a law passed this year that forces regulators to consider the cumulative effects of pollution before issuing air quality permits in certain areas, including areas with at least 40% nonwhite population. But he acknowledged that lawmakers should prepare to revise those criteria if legal challenges upend the law.
“If we don’t want to refer to race, we can use surrogate indicators such as health conditions,” he said. “My district has one of the highest hospitalization rates for asthma and heart disease. These are the next steps we can take – we just need to be inventive.
In June, the Supreme Court ruled that colleges can no longer consider race as an admissions criterion. In a 6-3 decision, the majority found that policies favoring minority applicants violated the Constitution’s equal protection clause.
Legal experts fear it could open the door to lawsuits challenging other racially conscious policies, including many state-level efforts to address environmental justice. These legal disputes could hamper investments aimed at helping polluted communities.
“It’s not that it’s impossible to defend racially conscious measures; the point is that it is expensive and time-consuming, and unlikely to persuade judges to believe that the use of race is always harmful,” Toni Massaro, a constitutional law scholar at the University of Arizona, wrote in an email to Stateline .
In many states, lawmakers said they were still assessing how to proceed.
“I share deep concerns about how this ruling will impact our environmental justice laws,” said Washington state Rep. Debra Lekanoff, a Democrat who was a leading supporter of the state’s cap-and-trade package that auctions greenhouse gas and earmarks revenues for pristine energy and climate adaptation projects.
The package also increases air quality monitoring and directs revenue to “overburdened” communities. The state lists racial or ethnic minority populations among its criteria for identifying these areas.
But even if the program faces legal jeopardy, Lekanoff said, other factors included in the analysis, such as pollution exposure and health impacts, could still be used to direct resources to communities affected by environmental racism.
“Science will tell us that the people who lose their lives to environmental degradation are communities of color,” she said. “Whether or not [race] it is legal that if you look with wide eyes at who has experienced the most harmful effects, the truth will come out.”
Lekanoff said she and other lawmakers will consult with Attorney General Bob Ferguson, a Democrat, to determine whether they should change the law or prepare for a lawsuit.
The Biden administration has established a “race-neutral” audit methodology known as the Climate and Economic Justice Screener to guide its efforts to direct 40% of federal spending across multiple agencies to disadvantaged communities. The tool uses nearly two dozen environmental and economic factors but ignores race. Environmental justice advocates say the White House did it to protect the program from legal challenges.
AND Grinding analysis found that the Biden administration’s categories — including income, climate vulnerability, health, housing and heritage pollution — largely directed funding to communities of color.
“The breakdown of all U.S. census tracts shows that as the number of non-white residents in an area increases, the area is more likely to be considered disadvantaged by the White House tool,” the analysis said.
Despite the legal uncertainty, some environmental justice advocates urged lawmakers not to turn a blind eye to race. Robert Bullard, a civil rights activist and professor at Texas Southern University, has been called the father of the environmental justice movement. He pointed to federal laws like the Fair Housing Act and the Voting Rights Act that take race into account.
“If we were that timid and timid and somehow in danger of the Supreme Court stepping in and throwing everything away, we would still be picking cotton in 2023,” he said. “We must push back against policies that destroy our communities. If lawsuits arise that target our efforts to dismantle racism, so be it, they should not intimidate us into fighting for our basic rights.”
Bullard said states concerned about legal challenges could develop laws that mimic the White House tool, but urged them to look to other screening methods to determine whether communities of color are being left out. Other tools, such as the program developed by California regulators, take into account the cumulative impact of health and environmental factors facing each community.
Some lawmakers echoed Bullard’s call for courage.
“It’s important not to acknowledge that our policymaking obviously needs to change,” said Michigan Republican Laurie Pohutsky, speaker pro tempore of the Democratic Party and House of Representatives. “If there is a challenge, we will deal with it when it comes. We are in the business of making good policy, not preemptive capitulation to an unelected extremist body.”
Pohutsky has drafted a bill that would direct media regulators to minimize harm and prioritize benefits to minority and low-income areas. This measure is part of a larger package focusing on renewable energy. Lawmakers will also consider a Senate bill that would invest a portion of fines paid by polluters in “environmental communities,” consistent with a federal race-sensitive screening tool.
Pohutsky expressed confidence that the effort, taking into account many factors beyond race, would be able to withstand legal challenges.
Hammond, the lawyer, said race-based policies that govern regulatory actions, such as permitting decisions, may be on a more solid legal basis than those that govern funding. Hammond said the distribution of benefits by race will likely be scrutinized more closely. Meanwhile, the court’s decision earlier this year to uphold the Indian Child Welfare Act may protect policies aimed at tribal communities, securing their status as sovereign political entities rather than racial groups.
Hammond said one option for lawmakers is to develop so-called severability clauses. Such measures could allow them to continue to consider race in their analyses, but allow the regulations to revert to something like a federal tool — rather than being invalidated outright — if a court finds race-based metrics invalid.
“There’s a lot of it [state environmental justice laws] should be enough, but perhaps some elements pose an increased risk,” Hammond said.
