{"id":1295,"date":"2022-04-01T10:47:08","date_gmt":"2022-04-01T14:47:08","guid":{"rendered":"https:\/\/blog.richmond.edu\/pilr\/?p=1295"},"modified":"2022-04-01T10:47:08","modified_gmt":"2022-04-01T14:47:08","slug":"dont-say-race-why-is-biden-taking-a-colorblind-approach-to-environmental-justice","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/pilr\/2022\/04\/01\/dont-say-race-why-is-biden-taking-a-colorblind-approach-to-environmental-justice\/","title":{"rendered":"\u201cDon\u2019t say Race:\u201d Why is Biden Taking a Colorblind Approach to Environmental Justice?"},"content":{"rendered":"

\"\"By: Haley Edmonds<\/p>\n

Last year, President Biden debuted the \u201cJustice40\u201d initiative, which sets out to advance environmental justice (\u201cEJ\u201d) by funneling 40% of all federal environment- and climate-related funds to \u201cdisadvantaged\u201d communities.[1]<\/sup><\/a> 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\u00a0 \u201cdisadvantaged\u201d 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]<\/sup><\/a>\u00a0 To many EJ activists\u2019 dismay, there was one, very critical factor missing from these criteria: race.[3]<\/sup><\/a><\/p>\n

 <\/p>\n

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

 <\/p>\n

The Colorblind Ghost of Bakke<\/em><\/p>\n

Under the Equal Protection clause of the 14th<\/sup> Amendment, state actions that make classifications based on race are subject to strict scrutiny. [5]<\/sup><\/a> In other words, if the government is passing a law that looks at the color of someone\u2019s 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.<\/p>\n

 <\/p>\n

This rigorous standard of review makes sense when the court is scrutinizing laws that are insidiously discriminating against discrete and insular minority groups[6]<\/sup><\/a>; 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 \u201cinsidious\u201d and \u201cbenign\u201d racial classifications as one in the same, in regards to the level of scrutiny they receive.[7]<\/sup><\/a> This is thanks to the Supreme Court in Regents of the University of California v. Bakke<\/em>, which essentially held that providing advantages specifically for historically disadvantaged racial and ethnic groups is presumptively unconstitutional.[8]<\/sup><\/a><\/p>\n

 <\/p>\n

The ghost of Bakke<\/em> was clearly haunting President Biden when he announced that he would be taking a race-neutral approach to environmental justice.<\/p>\n

 <\/p>\n

But is this \u201cghost\u201d really anything to be afraid of? Probably yes, unfortunately. Especially if two\u00a0 recent federal court decisions are any indication.[9]<\/sup><\/a> In Faust v Vilsack<\/em>, the Wisconsin District Court rejected the Biden administration\u2019s efforts to forgive loans for minority farmers as part of a program to address a long history of racial injustice.[10]<\/sup><\/a> In Vitolo, et al. v.\u00a0 Guzman<\/em>, the sixth circuit court sided with a group of white male restaurant owners, who accuse Biden of putting them at the \u201cback of the line\u201d for receiving restaurant owner covid relief funds, and giving women and minorities preference.[11]<\/sup><\/a> 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]<\/sup><\/a> and the University of North Carolina[13]<\/sup><\/a> in the 2022-2023 term.[14]<\/sup><\/a><\/p>\n

 <\/p>\n

Data clearly shows that accounting for socioeconomic factors alone are \u201cmissing a large part of the story\u201d by not considering race.[15]<\/sup><\/a> Therefore, Biden surely isn\u2019t choosing race-neutral criteria because it is the most effective means of targeting environmental racism. But does this render Biden\u2019s strategy in<\/em>effective?<\/p>\n

 <\/p>\n

One study tested this theory by inputting race back into the EJ screening tool and comparing these numbers to the CEQ\u2019s findings.[16]<\/sup><\/a> It determined that race and socioeconomic disadvantage indicators are so closely correlated in America that these race-neutral criteria can pretty effectively function\u00a0 as proxies for race. [17]<\/sup><\/a> Which is good news for the Justice40 initiative (but pretty bad news for America).<\/p>\n

 <\/p>\n

Some argue that we shouldn\u2019t be satisfied with \u201cpretty effective.\u201d As one advocate puts it, \u201cif you want to address environmental racism, there is no colorblind way to do that, [and if you aren\u2019t colorblind, you likely violated the equal protection clause, so] in 2022, if you want to help Black people, you\u2019re going to get sued. So either you\u2019re with the effort to help Black people or you\u2019re not. But you can\u2019t be timid about it.\u201d[18]<\/sup><\/a> This point is well taken, though it likely will not be heeded by our President, who seems awfully afraid of ghosts.<\/p>\n

 <\/p>\n

[1]<\/a> 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;<\/p>\n

[2]<\/a> 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<\/a>; 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.<\/p>\n

[3]<\/a> Lisa Friedman, White House Takes Aim at Environmental Racism, but Won\u2019t Mention Race<\/em>, N.Y. Times \u00a0(Feb. 15, 2022), https:\/\/www.nytimes.com\/2022\/02\/15\/climate\/biden-environment-race-pollution.html.<\/p>\n

[4]<\/a> This finding was initially made in the 1970\u2019s, by the \u201cFather of Environmental Justice,\u201d Robert Bullard, Alejandra Borunda, The origins of Environmental Justice\u2014And Why it\u2019s Finally Getting the Attention it Deserves<\/em>, Nat\u2019l Geographic (Feb. 24, 2021),<\/p>\n

https:\/\/www.nationalgeographic.com\/environment\/article\/environmental-justice-origins-why-finally-getting-the-attention-it-deserves<\/a>, 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<\/em>, GAO (1983),<\/p>\n

http:\/\/archive.gao.gov\/d48t13\/121648.pdf<\/a>.<\/p>\n

[5]<\/a> See<\/em> Korematsu v. United States, 323 U.S. 214 (1944).<\/p>\n

[6]<\/a> United States v. Carolene Products Co., 304 U.S. 144, footnote 4 (1938) (defining \u201cdiscrete and insular minorities\u201d as those that possess an immutable or highly visible trait which disables them from protecting themselves via the political process.)<\/p>\n

[7]<\/a>Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Adarand Constructors, Inc. v. Pe\u00f1a, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (\u201cIn my view, government can never have a \u2018compelling interest\u2019 in discriminating on the basis of race in order to \u2018make up\u2019 for past racial discrimination in the opposite direction.\u201d).<\/p>\n

[8]<\/a> 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.)<\/p>\n

[9]<\/a> Friedman, N.Y Times (2022).<\/p>\n

[10]<\/a> No. 21-C-548 (E.D. Wis. 2021) (Granting a temporary restraining order preventing the federal government\u2019s\u00a0 payment of the $4 million debt relief)<\/p>\n

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

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

[13]<\/a>\u00a0 Students for Fair Admission, Inc. v.\u00a0 University of North Carolina, et al., App. 252 (Nov. 4, 2021), cert. granted <\/em>(U.S. Jan. 24, 2022) (No. 20-1199).<\/p>\n

[14]<\/a>Adam Liptak & Anemona Hartocollis, Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C., <\/em>N.Y. Times (Jan. 24, 2022),<\/p>\n

https:\/\/www.nytimes.com\/2022\/01\/24\/us\/politics\/supreme-court-affirmative-action-harvard-unc.html<\/a>.<\/p>\n

[15]<\/a> 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\u2019l Geographic (2021). Another found that Blacks were 1.54 times more likely than Whites of the same income and education levels<\/em> 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, <\/em>Am. J. Pub. Health (April 2018), Ihttps:\/\/ajph.aphapublications.org\/doi\/10.2105\/AJPH.2017.304297<\/a>. In other words, these low-income black communities were not discriminatorily zoned because they were poor, but because they were black.<\/p>\n

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

[17]<\/a> Id. <\/em><\/p>\n

[18]<\/a>\u00a0 Friedman, N.Y. Times \u00a0(2022) (quoting Dorothy A. Brown, a professor of law at the Emory University School of Law).<\/p>\n","protected":false},"excerpt":{"rendered":"

By: Haley Edmonds Last year, President Biden debuted the \u201cJustice40\u201d initiative, which sets out to advance environmental justice (\u201cEJ\u201d) by funneling 40% of all federal environment- and climate-related funds to \u201cdisadvantaged\u201d 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\u00a0 \u201cdisadvantaged\u201d if it meets a series of socioeconomic … Continue reading \u201cDon\u2019t say Race:\u201d Why is Biden Taking a Colorblind Approach to Environmental Justice?<\/span><\/a><\/p>\n","protected":false},"author":5233,"featured_media":1296,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1295","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"jetpack_featured_media_url":"https:\/\/blog.richmond.edu\/pilr\/files\/2022\/04\/Edmonds-4.1.png","_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/1295","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/users\/5233"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/comments?post=1295"}],"version-history":[{"count":1,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/1295\/revisions"}],"predecessor-version":[{"id":1297,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/1295\/revisions\/1297"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/media\/1296"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/media?parent=1295"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/categories?post=1295"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/tags?post=1295"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}