Sara C. Babcock (Sara’s full Note was published in Pace Environmental Law Review, Volume 40 and can be found here!)

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The environment should not be a luxury for the privileged.[1] Clean air, clean water, and clean land should not be earned, but freely given. Yet, every day, communities of color, low-income communities, and other marginalized communities face the bulk of the environmental threats and toxic pollutants, leaving these communities overburdened and vulnerable.[2] Racist and otherwise discriminatory institutional rules, regulations, and policies combined with corporate decisions have intentionally targeted vulnerable communities for unfavorable land uses and poor zoning laws.[3] Buchanan v. Warley banned the use of explicit race-based zoning in 1917, but city planners and homeowners found indirect methods to continue segregating neighborhoods.[4] Citing to economic concerns, cities like St. Louis, Seattle, and Newark were able to create laws that kept minorities out of white neighborhoods.[5] Despite the laws and policies no longer being in effect, St. Louis, Seattle, Newark, and many other cities nationwide maintain the segregation patterns to this day.[6]

Corporations and governments have taken advantage of the past racist and otherwise discriminatory institutional rules, regulations, and policies to disproportionately expose communities of color, low-income communities, and indigenous communities to toxic and hazardous waste.[7] Years of consistent exposure to toxic and hazardous waste has led to a whole host of medical issues within these communities such as asthma, cancer, higher blood lead levels, cardiovascular disease, and developmental disorders.[8]

The Environmental Justice Movement has emerged from the realization that not only does the environment need protection, but so do people. Robert Bullard, the highly regarded Father of the Environmental Justice Movement and a sociologist, defines environmental justice as “the principle that all people and communities have a right to equal protection and equal enforcement of environmental laws and regulations.[9] The movement describes environmental justice through Ricardo Levins Morales’ popular environmental justice artwork.[10] The artwork reads “environmental justice is our cry of defiance against the onslaught of oppressive toxins and toxic oppressions that threaten to submerge our homes.”[11]

This Note proposes legislation with language that provides the right to a clean and healthy environment and requires large-scale federal projects to consider vulnerable communities before commencing construction. Part I lays out the emergence of environmental justice issues in the United States, including its turning point. Part II introduces both successful and failed attempts at federal environmental justice legislation and analyzes why federal environmental justice legislation continuously fails. Part III discusses how executive environmental justice action is pointless to the overall progression of environmental justice and examines President Biden’s progress in the first year of his presidency. Finally, Part V proposes specific language Congress should include in the proposed legislation and asserts why congressional action is the correct avenue for substantive environmental justice legislation. Part V additionally compares three governing documents—the National Environmental Policy Act, Executive Order 12898, and the New Jersey Environmental Justice law—that includes language that supports the proposed legislation in this Note.

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[1] Booker Reintroduced Sweeping Environmental Justice Bill, Cory Booker (Aug. 5, 2021), https://www.booker.senate.gov/news/press/08/05/2021/booker-reintroduces-sweeping-environmental-justice-bill (reintroducing legislation to address the environmental injustices that target vulnerable communities).

[2] See id.; see e.g., Climate Change Outreach Roundtable, U.S. EPA (July 24), https://www.epa.gov/sites/default/files/2016-01/documents/post_1_-_cc_outreach_roundtable_notes_summer_2015.pdf (“People of color and low-income communities are less responsible for climate change yet bear disproportionate risk…”); Christopher W. Tessum et al., PM2.5 polluters disproportionately and systemically affect people of color in the United States, 7 Science Advances 1, 3 (Apr. 28, 2021), https://www.science.org/doi/10.1126/sciadv.abf4491 (concluding that people of color are disproportionately exposed to a regulated air pollutant that can cause lung and heart problems); Robert D. Bullard et al., Toxic Wastes and Race at Twenty 1987–­2007 56 (United Church of Christ, 2007) (finding that more than half of the people who live within 1.86 miles of a toxic waste facility are people of color); Anne M. Wengrovitz & Mary Jean Brown, Recommendations for Blood Lead Screening of Medicaid-Eligible Children Aged 1–5 Years: an Updated Approach to Targeting a Group at High Risk (CDC, 2009) (determining that 11.2 percent of Black children are poisoned by lead compared to 2.3 percent of white children); James VanDerslice, Drinking Water Infrastructure and Environmental Disparities: Evidence and Methodological Considerations, 101 Am. J. Public Health S109, S110 (Dec. 2011) (documenting that water contamination has largely affected children of color and indigenous communities).

[3] Environmental Justice & Environmental Racism, Greenaction, https://greenaction.org/what-is-environmental-justice/ (last visited Jan. 26, 2022); see infra note 5 (listing examples of three major cities with racist and otherwise discriminatory zoning laws).

[4] Buchanan v. Warley, 245 U.S. 60, 82 (1917) (ruling that a Kentucky zoning ordinance that prohibited a white man from selling his property to a Black man if the surrounding neighborhood was already majority-white violated the Fourteenth Amendment of the US Constitution); Cecilia Rouse et al., Exclusionary Zoning: Its Effect on Racial Discrimination in the Housing Market, The White House (June 17, 2021), https://www.whitehouse.gov/cea/written-materials/2021/06/17/exclusionary-zoning-its-effect-on-racial-discrimination-in-the-housing-market/.

[5] See Rouse, supra note 4; see e.g., Richard Rothstein, The Making of Ferguson 3–5 (Economic Policy Institute, 2014) (explaining St. Louis’s 1919 zoning laws and how they led to the racial tension in Ferguson in 2014); Tate Twinam, The long-run impact of zoning: Institutional hysteresis and durable capital in Seattle, 1920–2015, 73 Reg’l Sci. & Urb. Econ. 157 (2018) (examining Seattle’s 1923 zoning laws and providing commentary on how institutions can disrupt this pattern); Malina Welman, The Starting Point: Structuring Newark’s Land Use Laws at the Outset of Redevelopment to Promote Integration Without Displacement, 53 Columbia J.L. & Soc. Probs. 43, 45–46 (discussing the use of exclusionary zoning laws into keep out low-income and communities of color).

[6] See Rothstein, supra note 5.

[7] Environmental Justice & Environmental Racism, Greenaction, https://greenaction.org/what-is-environmental-justice/ (last visited Mar. 18, 2022).

[8] What is Environmental Justice?, Dep’t of env’t prot., https://www.nj.gov/dep/ej/ (last updated Jan. 6, 2022); see supra note 2 (describing the ways that communities of color and low-income communities are exposed to toxic pollutants and hazardous waste leading to disparate health issues).

[9] Home, Dr. Robert Bullard, https://drrobertbullard.com (last visited March 18, 2022).

[10] Environmental Justice, Ricardo Levins Morales Art Studio, https://www.rlmartstudio.com/product/environmental-justice/ (last visited Mar. 18, 2022).

[11] Id.