Environmental Justice and the Constitution
6 Pages Posted: 22 Jul 2009
In a recent essay in ELR, David Coursen queries whether environmental justice policies, which seek to avoid disproportionate environmental burdens on poor and minority communities, are on a 'collision course' with the Equal Protection Clause. In concluding that a potential collision is more illusory than real, Coursen offers a number of reasons why governmental actions to promote environmental justice have not been challenged in court and, even if they were to be, would not be subjected to strict judicial scrutiny. In this essay, I respond to Coursen's query. I argue that Coursen’s Article is important for highlighting the curious fact that, to date, no equal protection challenge to an environmental justice policy has been adjudicated in the courts, even though these policies are explicitly race-conscious and would seem vulnerable to such challenge. Yet, one might fairly ask whether Coursen’s quest to explain this fact at once proves too much and too little. On the one hand, Coursen makes too much of the potential constitutional obstacles that a challenger might face if a claim were to be brought. On the other hand, Coursen makes too little of the fact that existing environmental justice policies fall short of using race as a decisionmaking criterion to alter or change the structure of environmental regulatory decisions, which are largely based on technical, quantitative decisions subject to judicial deference. It is this latter reason, one might plausibly argue, that accounts for the lack of constitutional challenges to existing environmental justice policies. That is, perhaps environmental justice policies have remained relatively uncontroversial, both as a constitutional and policy matter, because they have not sought to use race as a criterion or means to adjust or redistribute levels of environmental protection to vulnerable minority populations.
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