After Flint: Environmental Justice as Equal Protection

11 Pages Posted: 21 Oct 2016 Last revised: 22 Feb 2017

Date Written: October 20, 2016

Abstract

The lead crisis in Flint, Michigan has captivated the nation, prompting calls for reform. Even so, the discourse surrounding Flint’s aftermath has been surprisingly unimaginative. In this Essay, we conceptualize Flint as an archetypical case of underenforcement — that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Vulnerable populations are particularly harmed by enforcement deficits in the environmental and public health arenas. These harms are in many respects functionally equivalent to the unredressed private violence that motivated the Fourteenth Amendment. Viewed as such, the inadequacy of environmental regulation can be understood as a failure of equal protection: a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations. We offer two suggestions for combatting the underenforcement of environmental laws: (1) reallocating some or all of the investigatory and enforcement responsibility now vested in EPA to the Department of Justice, and (2) broadening the kinds of legal actions available to the federal government as means to effectuate environmental justice.

Suggested Citation

Dana, David A. and Tuerkheimer, Deborah, After Flint: Environmental Justice as Equal Protection (October 20, 2016). Northwestern University Law Review, Forthcoming; Northwestern Public Law Research Paper No. 16-29. Available at SSRN: https://ssrn.com/abstract=2856823

David A. Dana

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0240 (Phone)
312-503-2035 (Fax)

Deborah Tuerkheimer (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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