By: Brooklyn Brown

Students for Fair Admissions v. Harvard, along with its companion case Students for Fair Admissions v. North Carolina, came as a landmark decision for the Supreme Court of the United States on June 29, 2023.[i] After many long years supporting race-based affirmative action policies, the Supreme Court changed its position, holding that race-based affirmative action programs in the college admissions process violate the Equal Protection Clause of the Fourteenth Amendment.[ii] Is this holding limited to college admissions, or could other affirmative action programs be threatened?

At the start of his term, President Joe Biden announced various measures to address environmental justice in the United States.[iii] Environmental justice is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[iv] Take, for example, President Biden’s executive order “Tackling the Climate Crisis at Home and Abroad” which laid the foundation “for the most ambitious environmental justice agenda ever undertaken by an administration.”[v] But with Students for Fair Admissions lingering in the background, along with other legal challenges, the Biden administration was forced to get creative in their policies.

In one instance, race was a missing indicator for a screening tool used by the White House Council on Environmental Quality (“CEQ”) since June 2022.[vi] The tool is used for identifying “disadvantaged communities for clean energy and infrastructure investments.”[vii] CEQ’s use of race-neutral factors, such as “analysis of income level and pollution exposure,” passes the race-neutral factors the Supreme Court deemed appropriate to consider.[viii]

While many of Biden’s policies and programs implemented were preemptive in using race-neutral factors, this is not true of many state governments. Lawmakers across states are “scrambling to figure out what the ruling will mean for their environmental justice efforts.”[ix] Legislators in these states expect lawsuits will be a threat to their policies.[x] The looming question is whether these measures can be defended in court, or if not, will laws need to be revised in a race-neutral way?[xi] Many of these state policies “target such efforts at communities with large minority populations or tribal membership, among other factors such as income and health disparities.”[xii] For example, “Massachusetts law and policy explicitly contain race-based considerations in permitting new projects and allocating environmental benefits and burdens among communities of different races, ethnicities, English language proficiency, and income levels.”[xiii] New Jersey State Senator Troy Singleton believes environmental justice law “hangs in the balance.”[xiv] Singleton stated the Students for Fair Admissions ruling “could have a seismic impact on how public policy is crafted. I would be naïve to tell you I’m not concerned about it.’”[xv]

Many states “intend to defend the legality of the environmental justice laws they’ve passed” should they come under scrutiny.[xvi] “But some also plan to begin working on alternative wording if race-conscious language becomes unviable.”[xvii] However, using alternative language may not be the best solution. Robert Bullard, a professor in urban planning and environmental policy at Texas Southern University, stated, “‘America is segregated, and so is pollution’… ‘Race-neutral metrics and tools will leave out a big chunk of the problem and will not solve the structural components that disadvantage communities.’”[xviii] The race-neutral approach is a major loss of power because you are not “getting at the core of what is driving disproportionate pollution. …[Y]ou’re not going to use race when one of the biggest drivers was discrimination.’”[xix]

President Biden’s environmental justice policies have erred on the side of caution by using race-neutral criteria, complying with the holding of Students for Fair Admissions. But will such race-neutral identifiers be impactful in achieving the goals of environmental justice? The game of charades requires people to come to a solution without ever speaking of the solution itself directly. Like charades, Students for Fair Admissions could require agencies to solve disproportionate environmental impacts without ever speaking of race itself, the direct driving factor causing these disparate impacts. It is impossible to solve an issue driven by race without acknowledging how race itself is implicated. It will be critical for environmental justice initiatives to evaluate their plans and determine if these race-neutral factors hinder their progress in achieving their goals.

[i] Students for Fair Admissions v. Harvard, 143 S.Ct. 2141 (2023).

[ii] Id.

[iii] Environmental Justice, The White House, https://www.whitehouse.gov/environmentaljustice/ (last viewed Sep. 5, 2023) [https://perma.cc/R8HK-UYWV].

[iv] Learn About Environmental Justice, Environmental Protection Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last viewed Sep. 5, 2023) [https://perma.cc/Q6LU-B7TX].

[v] Fact Sheet: A Year Advancing Environmental Justice, The White House, https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/26/fact-sheet-a-year-advancing-environmental-justice/ (last viewed Sep. 5, 2023) [https://perma.cc/4MHL-YDYL].

[vi] Pamela King, High court Harvard admissions case may thwart Biden EJ Push, Greenwire, https://www.eenews.net/articles/high-court-harvard-admissions-case-may-thwart-biden-ej-push/ (last viewed Oct. 28, 2022) [https://perma.cc/DAL4-YN6A].

[vii] Id.

[viii] Pamela King, Supreme court ruling entangles Biden’s environmental justice efforts, Greenwire, https://www.eenews.net/articles/supreme-court-ruling-entangles-bidens-environmental-justice-efforts/ (last viewed Jun. 29, 2023) [https://perma.cc/H5ZA-THFF].

[ix] Alex Brown, It may have just gotten harder to protect minority communities from pollution, Washington State Standard, https://washingtonstatestandard.com/2023/08/29/it-may-have-just-gotten-harder-to-protect-minority-communities-from-pollution/ (last viewed Aug. 29, 2023) [https://perma.cc/6YFT-YV3L].

[x] Id.

[xi] Id.

[xii] Alex Brown, Supreme Court Admissions Case Could Upend Environmental Justice Laws, Stateline, https://stateline.org/2022/12/07/supreme-court-admissions-case-could-upend-environmental-justice-laws/ (last viewed Dec. 7, 2023) [https://perma.cc/4AKK-CD3P].

[xiii] Thomas Mackie, Implications of Supreme Court Affirmative Action Ruling on Massachusetts Environmental Justice Law and Policy, JDSupra, https://www.jdsupra.com/legalnews/implications-of-supreme-court-1643841/ (last viewed July 21, 2023) [https://perma.cc/F6RN-XFQR].

[xiv] Brown, supra Note 9.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Darryl Fears, Without focus on race, Biden effort on air pollution disparities will fail, report says, Washington Post, https://www.washingtonpost.com/climate-environment/2023/07/20/without-focus-race-biden-effort-air-pollution-disparities-will-fail-report-says/ (last viewed Jul. 20, 2023) [https://perma.cc/VA64-8BRU].

[xix] Id.