“Don’t say Race:” Why is Biden Taking a Colorblind Approach to Environmental Justice?

By: Haley Edmonds

Last year, President Biden debuted the “Justice40” initiative, which sets out to advance environmental justice (“EJ”) by funneling 40% of all federal environment- and climate-related funds to “disadvantaged” communities.[1] This initiative has drawn recent attention due to the contentious methodology used in the proposed EJ screening tool, which designates a given census track as  “disadvantaged” if it meets a series of socioeconomic and environmental criteria (e.g. high unemployment rates, low median household salary, close proximity to sources of pollution, low air/water quality, low life expectancy, etc.).[2]  To many EJ activists’ dismay, there was one, very critical factor missing from these criteria: race.[3]

 

Academics have long agreed that the best predictor of whether someone will live near environmental hazards is race.[4] So why is the Biden administration choosing a colorblind approach? The answer likely lies within the pages of a 1L constitutional law textbook.

 

The Colorblind Ghost of Bakke

Under the Equal Protection clause of the 14th Amendment, state actions that make classifications based on race are subject to strict scrutiny. [5] In other words, if the government is passing a law that looks at the color of someone’s skin to determine whether or not that law applies to them, the government must have an extremely good reason for doing so, and must not be able to achieve the same result through a race-neutral means.

 

This rigorous standard of review makes sense when the court is scrutinizing laws that are insidiously discriminating against discrete and insular minority groups[6]; however, it seems counterproductive when applied to initiatives attempting to mitigate the effects of this sort of insidious discrimination (e.g. affirmative action programs). Unfortunately, the modern landscape of U.S. equal protection doctrine treats “insidious” and “benign” racial classifications as one in the same, in regards to the level of scrutiny they receive.[7] This is thanks to the Supreme Court in Regents of the University of California v. Bakke, which essentially held that providing advantages specifically for historically disadvantaged racial and ethnic groups is presumptively unconstitutional.[8]

 

The ghost of Bakke was clearly haunting President Biden when he announced that he would be taking a race-neutral approach to environmental justice.

 

But is this “ghost” really anything to be afraid of? Probably yes, unfortunately. Especially if two  recent federal court decisions are any indication.[9] In Faust v Vilsack, the Wisconsin District Court rejected the Biden administration’s efforts to forgive loans for minority farmers as part of a program to address a long history of racial injustice.[10] In Vitolo, et al. v.  Guzman, the sixth circuit court sided with a group of white male restaurant owners, who accuse Biden of putting them at the “back of the line” for receiving restaurant owner covid relief funds, and giving women and minorities preference.[11] Affirmative action precedent could also take further steps to the right once the Supreme Court conservative supermajority hears the most recent affirmative action cases brought against Harvard University[12] and the University of North Carolina[13] in the 2022-2023 term.[14]

 

Data clearly shows that accounting for socioeconomic factors alone are “missing a large part of the story” by not considering race.[15] Therefore, Biden surely isn’t choosing race-neutral criteria because it is the most effective means of targeting environmental racism. But does this render Biden’s strategy ineffective?

 

One study tested this theory by inputting race back into the EJ screening tool and comparing these numbers to the CEQ’s findings.[16] It determined that race and socioeconomic disadvantage indicators are so closely correlated in America that these race-neutral criteria can pretty effectively function  as proxies for race. [17] Which is good news for the Justice40 initiative (but pretty bad news for America).

 

Some argue that we shouldn’t be satisfied with “pretty effective.” As one advocate puts it, “if you want to address environmental racism, there is no colorblind way to do that, [and if you aren’t colorblind, you likely violated the equal protection clause, so] in 2022, if you want to help Black people, you’re going to get sued. So either you’re with the effort to help Black people or you’re not. But you can’t be timid about it.”[18] This point is well taken, though it likely will not be heeded by our President, who seems awfully afraid of ghosts.

 

[1] Exec. Order No. 14,008, 86.19 Fed. Reg. 7619, 7629 (Jan. 27, 2021), https://www.energy.gov/sites/default/files/2021/02/f83/eo-14008-tackling-climate-crisis-home-abroad.pdf;

[2] This tool was recently released in its beta phase, and is open for public comment until April of 2022. Climate and Economic Justice Screening Tool, CEQ, https://screeningtool.geoplatform.gov/en/methodology#11.37/37.7813/-77.4902; Climate and Economic Justice Screening Tool Beta Version, 87 Fed. Reg. 10,176 (Feb. 23, 2022), https://www.regulations.gov/document/CEQ-2022-0002-0001.

[3] Lisa Friedman, White House Takes Aim at Environmental Racism, but Won’t Mention Race, N.Y. Times  (Feb. 15, 2022), https://www.nytimes.com/2022/02/15/climate/biden-environment-race-pollution.html.

[4] This finding was initially made in the 1970’s, by the “Father of Environmental Justice,” Robert Bullard, Alejandra Borunda, The origins of Environmental Justice—And Why it’s Finally Getting the Attention it Deserves, Nat’l Geographic (Feb. 24, 2021),

https://www.nationalgeographic.com/environment/article/environmental-justice-origins-why-finally-getting-the-attention-it-deserves, and was later confirmed in a 1983 federal report, Siting of Hazardous Waste Landfills and Their Correlation With Racial and Economic Status of Surrounding Communities, GAO (1983),

http://archive.gao.gov/d48t13/121648.pdf.

[5] See Korematsu v. United States, 323 U.S. 214 (1944).

[6] United States v. Carolene Products Co., 304 U.S. 144, footnote 4 (1938) (defining “discrete and insular minorities” as those that possess an immutable or highly visible trait which disables them from protecting themselves via the political process.)

[7]Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (“In my view, government can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction.”).

[8] 438 U.S. 265 (1978) (Justice Powell, writing for the plurality, holds that the only compelling interest provided by the University is the interest in having a more diverse student body, because it is the only interest proposed that point to a benefit of affirmative action beyond the mere fact of having more students of color.)

[9] Friedman, N.Y Times (2022).

[10] No. 21-C-548 (E.D. Wis. 2021) (Granting a temporary restraining order preventing the federal government’s  payment of the $4 million debt relief)

[11] No.21-5517/5528 (6th Cir. 2021)(enjoining the government from using race and sex as criteria for the ordering of application processing)

[12] Students for Fair Admission, Inc. v. President & Fellows of Harvard College, 980 F. 3d 157 (Nov. 12, 2020), cert. granted (U.S. Jan. 24, 2022) (No. 20-1199).

[13]  Students for Fair Admission, Inc. v.  University of North Carolina, et al., App. 252 (Nov. 4, 2021), cert. granted (U.S. Jan. 24, 2022) (No. 20-1199).

[14]Adam Liptak & Anemona Hartocollis, Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C., N.Y. Times (Jan. 24, 2022),

https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-action-harvard-unc.html.

[15] One study found that black households with incomes between $50,000 and $60,000 experience overall pollution burdens equal to those felt by white households earning $10,000 or less. Borunda, Nat’l Geographic (2021). Another found that Blacks were 1.54 times more likely than Whites of the same income and education levels to live within 1 mile of a facility listed in the Toxics Release Inventory. Ihab Mikati, et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, Am. J. Pub. Health (April 2018), Ihttps://ajph.aphapublications.org/doi/10.2105/AJPH.2017.304297. In other words, these low-income black communities were not discriminatorily zoned because they were poor, but because they were black.

[16] Naveena Sadasivam & Clayton Aldern, The White House excluded race from its environmental justice tool. We put it back in., Grist (Feb. 24, 2022), https://grist.org/equity/climate-and-economic-justice-screening-tool-race/

[17] Id.

[18]  Friedman, N.Y. Times  (2022) (quoting Dorothy A. Brown, a professor of law at the Emory University School of Law).

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