Environmental Laws: Grist for the Equal Protection Mill

Abstract:     
In this article, Professor Kaswan continues to address the relationship between environmental laws and civil rights claims in the context of siting unwanted facilities. While an earlier article addressed the relationship between environmental laws and political debates in siting disputes, Environmental Justice: Bridging the Gap Between Environmental Laws and "Justice," 47 Am. U. L. Rev. 221 (1997), this article addresses the relationship between environmental laws and constitutional claims brought under the Equal Protection Clause. The article first addresses equal protection case law, analyzing, in particular, the cases that have challenged environmental siting decisions. While conceding that proving discriminatory intent presents a significant legal hurdle, Professor Kaswan argues that, under certain circumstances, environmental laws can help plaintiffs meet the Arlington Heights factors for proving circumstantial evidence of discriminatory intent. Data gathered under existing environmental laws can help plaintiffs demonstrate that the siting decision will have a disparate impact, they create a public record of prior siting decisions that can provide evidence of a past pattern of discriminatory decisions, they increase the transparency of the decision at issue, making it easier to identify potential discrimination; and they establish substantive and procedural requirements, the violation of which may be evidence of discrimination. The article demonstrates that environmental laws can serve not only instrumental environmental goals; they can also assist in the pursuit of political justice.

Keywords: Equal Protection Clause, environmental justice movement, environmental justice, environmental law

JEL Classifications: K32

Accepted Paper Series