Equal Protection and Environmental Justice: A Matter of Unconscious Injustice?
The IACHR recalls that the right to equal protection under international human rights law has been interpreted as prohibiting not only intentional discrimination, but also any distinction, exclusion, restriction or preference which has a discriminatory effect …1
This chapter outlines the recent history of attempts by the environmental justice movement in the United States to engage constitutional equal protection provisions and analyses: (i) why these attempts have been largely unsuccessful; (ii) the jurisprudential position that has emerged in relation to environmental justice cases; (iii) the extent to which this position adequately reflects recent developments in the understanding of human cognition and decision making; and (iv) the compatibility of this position with human rights norms relating to discrimination elsewhere in the world. Finally some conclusions will be presented on the likelihood and desirability of change in the judicial attitude towards environmental justice in the United States.
Before embarking on an analysis of the activities of the environmental justice movement, the term environmental justice itself must be properly explained. Outside the United States the term would probably invoke notions of doing justice towards aspects of the environment itself such as the protection of the quality and quantity of fresh water supplies, protection of species and habitats, protection of the air and land from excessive pollution, and so forth. This is essentially an ecocentric conception of justice to the environment. However, in the United States, and increasingly elsewhere in the world, the term has a more specific meaning which is far more anthropocentric. The United States Environmental Protection Agency defines environmental justice as “… 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.”2 This definition highlights very well the human-centered nature of environmental justice and is a legacy of activism, not by the environmental protection movement in the United States as such (though sections of this movement have certainly acknowledged its importance), but rather by the Civil Rights movement.
The Environmental Justice Movement
The origins and history of the environmental justice movement in the United States have been well documented and only a brief outline will be presented here.3 The movement’s origins are generally traced to events in the early 1980s in Warren County, North Carolina. The authorities in North Carolina discovered that a haulage company had, in 1978, progressively dumped 31,000 gallons of PCB4-contaminated oil along 270 miles of roadside across 14 counties (mostly at night). The contaminated soil was excavated and the decision made to “dispose” of all 600 truckloads of it in a single location, Shocco Township, where African-Americans made up 75 percent of the population, and this in a county where the average African-American population was already 65 percent. Moreover, Warren County ranked as the 97th poorest county (out of 100) in an already impoverished State.5 A new hazardous waste landfill site was duly created there for the purpose of disposing of the PCB-contaminated soil, but a decision was made to continue to accept hazardous waste there after the initial disposal. The residents of the township, outraged by the complete lack of consultation about the siting of the waste facility, organised protests (in which local church groups took the organizational lead) along the model of the civil rights movement. In particular the residents engaged the help of the United Church of Christ Commission for Racial Justice to orchestrate a campaign of nonviolent civil disobedience. However, despite the protests and evidence that usual safety procedures were being compromised (for example the PCB-laced soil would ultimately be located only seven feet above the water table), the disposal and the operation of the new site went ahead.
Despite the ultimate failure of the protests in North Carolina, the whole question of the apparent racial targeting of the disposal of environmentally hazardous substances and the siting of environmentally hazardous activities became a high-profile issue and a series of reports followed which examined the situation across the United States as a whole.6 The resulting political pressure gave rise to Congressional action, when Senator Al Gore and Congressman John Lewis (one of the six principal leaders of the Civil Rights Movement7) introduced the Environmental Justice Act 1992.8 Though these legislative initiatives were ultimately unsuccessful, the executive action which followed in 1994 in the form of President Clinton’s Executive Order 128989 and its accompanying memorandum10 were to prove rather more effective. Executive Order 12898 required that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations ….”Although executive orders are not formally legally binding, they are nevertheless routinely treated as if they are. In the whole history of the United States Presidency, there are only two recorded incidences of executive orders not being observed.11 Thus the promulgation of Executive Order 12898 was a significant victory for the environmental justice movement and to some extent represented the pinnacle of the movements’ influence. Since then its success, as we shall see, has been more qualified.
Environmental Justice and Equal Protection Litigation
Given the origins of the environmental justice movement as part of the civil rights movement, it is no surprise that attempts were made to invoke the Equal Protection Clause of the Fourteenth Amendment12 in the cause of environmental justice. However, this was always likely to be a difficult challenge given that the United States Supreme Court had decided back in 1976, in the case of Washington v. Davis,13 that the engagement of the equal protection provisions of the Fourteenth and Fifth Amendments required nothing less than evidence of intentional discrimination.14 In Washington, the petitioner police officers had sought to apply the standards of Title VII15 of the Civil Rights Act 1964, previously applied in Griggs v. Duke Power Co.,16 to the effect that constitutionally relevant discrimination was established through evidence of disparate impact alone. Justice White, for the court, was unequivocal in his rejection of this contention:
We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today … our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional Solely (sic) because it has a racially disproportionate impact.17
He went on to indicate that:
we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, ….18
The effect of this judgment was to make a distinction between the burden of proof required to engage the full constitutional protection of the Fourteenth and Fifth Amendments and that required to engage the protection of Title VII provisions. The former is engaged only where sufficient evidence is adduced of intentional racial animus; disparate impact may form a part of this evidence but it is not, in and of itself, sufficient evidence of intention. The Title VII provisions, on the other hand, do declare as unlawful “particular employment practice[s] that [cause] a disparate impact on the basis of race, color, religion, sex, or national origin”19 if the respondent is unable “to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”20 The result is that disparate impact can be declared unlawful but does not necessarily offend against the Equal Protection Clause. In fact, Title VII has been successfully used in many employment cases over a long period of time to strike down employment practices that amount to disparate treatment or result in “unjustified” disparate impact.21 Linda Krieger, in her 1995 paper on Title VII jurisprudence and equal employment opportunity, takes issue with the application of disparate impact theory to the subjective and individualistic decision-making processes that often characterize employment discrimination disputes. She raises three objections, one practical, one political and one theoretical, to the use of the disparate impact model in such cases, and prefers the disparate treatment paradigm as a more suitable mechanism.22 Since much of what follows relates to disparate impact rather than disparate treatment, it is necessary at this point to place Krieger’s objections in their proper context lest they be thought to undermine or weaken the subsequent discussion of disparate impact in the context of environmental justice.
Demonstrating disparate treatment, in the employment context, requires that the claimant demonstrate that the employer has engaged in intentional discrimination in the application of a subjective judgment about hiring, entitlements, promotion, dismissal, and so forth. Success in such cases is entirely dependent on adducing sufficient evidence of this intent. This can be a considerable challenge.23 Disparate impact, on the other hand, does not require proof of intent, but once disparate impact is demonstrated, it transfers the burden of proof to the employer to demonstrate that the practice that led to the disparate impact is “job related” and “consistent with business necessity.”24 As Krieger points out,25 this provision, inserted into Title VII by the Civil Rights Acts 1991,26 does not define either of these terms. The result was that employers seeking to rely on this defense were required to statistically validate their practices in order to discharge their burden of proof. Krieger objects to the disparate impact paradigm precisely because it does require such statistical analysis. This is beyond the means of all but the largest and wealthiest employers (the practical objection) and hence is not undertaken at all, or very poorly, in most Title VII cases. This means that to reach a decision in court, a “vague, subjective, and unpredictable”27 judicial judgment is substituted for a statistical one (the political objection.) Finally Krieger points out that the disparate impact model was formulated to deal with the adoption of “ostensibly objective, neutral selection devices which … shielded [employers] against accusations of intentional discrimination …” and “… was not designed to reckon with the phenomena at play in subjective, individualized interpersonal decision making, and remains ill-suited to that task”28 (the theoretical objection.) Professor Krieger’s objections are compelling but are predicated on the lack of availability of objective statistical information and the fact that disparate impact analysis is not well suited to subjective individualistic decisions. By contrast, most environmental justice cases involve a much greater degree of objectivity, are nearly always related to a class or community rather than individuals, and the decisions made usually emanate from government agencies (state or federal) which are reasonably well funded, well served in technical expertise, and for whom such statistical analysis is far more feasible. Hence Krieger’s objections to disparate impact analysis have less purchase in this context.
Moreover, many environmental justice situations come about as the result of a complex chain of decisions in which it would be demanding, to say the least, to demonstrate the invidious (that is, intentional or consciously motivated) racial discrimination required to engage the Equal Protection Clause or the disparate treatment paradigm. Thus the prospects for the environmental justice movement in invoking the Equal Protection Clause in their favor always appeared rather remote. Just how remote was confirmed in Bean v. Southwestern Waste Management Corporation,29 the first environmental justice case to be litigated on the basis of the Equal Protection Clause. Though the federal judge in the case expressed some sympathy with the petitioners,30 he felt bound by the Washington line of cases and dismissed the action as lacking sufficient evidence of intentional racial animus. The environmental justice movement was thus forced to seek redress elsewhere in the law.
The alternative legal means lighted upon was Title VI of the Civil Rights Act 1964.31 Although employment discrimination cases founded on Title VII of the same act had failed to engage the Equal Protection Clause in the Washington case, described previously, the success of the disparate impact model under Title VII more generally suggested that it would be reasonable to attempt to found a similar private right of action, in seeking redress against environmental injustice, on another title in the same act, Title VI, specifically §§60132 and 602.33 §601 requires that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” This is bolstered by §602 which provides that “[e]ach Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title.”
Until the decision in Alexander v Sandoval,34 the case law on Title VI had been somewhat contradictory. Following Regents of the University of California v. Bakke,35 it was thought that Title VI could only be engaged, like the Equal Protection Clause itself, where evidence of intentional discrimination could be adduced. However, subsequent cases seemed to suggest the possibility of a private right of redress under Title VI, §602, based on disparate impact alone.36 In 2001 Sandoval settled the matter. Justice Scalia for the 5–4 majority in the United States Supreme Court left little room for doubt; nothing less than intentional racial animus was necessary to found a private right of action under Title VI:
It is clear now that the disparate-impact regulations [that might be promulgated by an agency under § 602] do not simply apply § 601—since they indeed forbid conduct that § 601 permits—and therefore clear that the private right of action to enforce § 601 does not include a private right to enforce these regulations.37
Thus, although federal agencies might promulgate disparate impact regulations (and many have done so38) these cannot be enforced through a private right of action exercisable in federal court (though administrative appeal, through the Office of Civil Rights, against the relevant agency, is still an option—this is further discussed infra39).
In the same case, Justice Stevens, in his dissenting judgment,40 had alluded to the possibility of basing disparate impact cases on 42 U.S.C. §1983, a general provision which allows that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
However, this avenue was also closed by the U.S. Court of Appeals for the Third Circuit in South Camden Citizens in Action v. New Jersey Department of Environmental Protection on the grounds that §1983 did not offer a private right of action to uphold disparate impact litigation unless it could be shown that such a right could be “already found in the enforcing statute.”41 Since, following Sandoval, §602 (the relevant enforcing statute in the South Camden case) evidently did not contain such a right, this marked the end of the road for environmental justice litigants’ attempts to rely successively on the Equal Protection Clause, Title VI and 42 U.S.C. §1983.
Environmental Justice and Administrative Challenges
As mentioned previously,42 it is possible to use administrative challenges to enforce the application of disparate impact regulations promulgated by federal agencies (in this case the EPA) under Executive Order 12898. Such challenges must be brought before the Office of Civil Rights.43 Under this procedure complainants are able to articulate disparate impact complaints directly, in a way which is likely to be more successful than using Title VI in the courts though they do not get their “day in court.” Although this approach is often successful,44 it suffers from a number of deficiencies and some significant drawbacks.45 A report by Deloitte Consultants LLP into the EPA OCR in 2011 concluded that
the Title VI program has struggled to develop a consistent framework to analyze complaints, resulting in a lengthy and time-consuming effort to evaluate the complaints and once accepted, to adequately investigate the cases. Only 6%, or 15 out of 247, were compliant with EPA targeted 20-day timeframe for acknowledgement. In fact, half of the complaints have taken one year or more to move to accepted or dismissed status. One case was accepted after nine years and a second case was accepted only after ten years.46
Other administrative remedies and citizen suit provisions are provided by specific federal statutes, including the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980 §310,47 the Clean Air Act of 1970 §304(a)(1),48 the Clean Water Act of 1987 §505,49 the Resource Conservation and Recovery Act of 1976 §7002,50 and the Safe Drinking Water Act of 1974 §1449.51 Although much can be achieved in such actions, there are also significant drawbacks associated with them in terms of mitigating environmental injustice. Most of the citizen suit provisions make it difficult, if not impossible, to mount preventative challenges; establishing standing is difficult if the harm complained of will only accrue in the future. Similarly where citizen suits seek to challenge decisions related to pre-permit decisions where the permit has already been granted, the courts are unwilling to be generous.52 These statutes permit citizens to force agencies and polluters to comply with the law. However, in cases where disparate impact has come about as a side-effect of entirely lawful activity the remedies are unavailable. Furthermore, statutory remedies do not normally permit compensatory or punitive damages. Hence those seeking compensation for decisions or activities that have disparate impact on their locality are unlikely to succeed under statutory citizen suits.
This short summary of the recent history of environmental justice litigation serves to illustrate why the ship of environmental justice so frequently founders on the rocks of intentional racial animus. One can understand why environmental justice case law in the United States has evolved in favor of a requirement for nothing less than intentional racism before a private law remedy becomes available. The successes of the Civil Rights Movement gave rise to a nation anxious to move away from attitudes of mind associated with slavery and those who sought actively to maintain such attitudes deliberately (that is, intentionally) were not to be tolerated. At the same time there emerged a perception that attempting a rebalance through social engineering, such as affirmative action, was to engage in visiting the sins of the fathers on their now more enlightened offspring. Indeed the notion of a colorblind society was, for a time, the dominant paradigm in race relations; the idea that slavery had been consigned to history, strong legislation put in place to prevent any such evil arising again, and the view that, in time, previously suppressed races would take full advantage of their emancipation and emerge into the sunshine of full equality without the need for state intervention. However, opposed to this view is the contention that the legacy of slavery cannot simply be ignored and permitted to heal itself unaided. Those whose ancestors were once considered property are still burdened with societal disadvantages accrued over centuries and these disadvantages could take just as long to be overcome. Moreover in recent times psychological evidence has accumulated which suggests that the majority of discrimination may not be conscious at all, and this suggests that an insistence on the provision of evidence of intentional racial animus in discrimination litigation may be putting the law at odds with the realities of human cognition and motivation. It is to this evidence that I now turn.
Social Cognition Theory and Unconscious Discrimination
Professor Linda Krieger’s seminal 1995 paper on Title VII employment discrimination litigation has already been referred to above.53 Her work was principally concerned with disparate treatment and did not explicitly refer to Title VI disparate impact cases. However, the cognitive bases of the decision-making processes that she discusses are applicable to equal protection questions generally.
Krieger’s paper addresses the then prevailing judicial view (arguably still the prevailing view) that apparently racist decisions must arise from consciously motivated racial animus if constitutional protections and remedies for discrimination are to be deployed. This is despite the fact that even in 1973 in McDonnell Douglas Corp. v. Green it was held that Title VII covered all forms of racism “subtle and otherwise.”54 Krieger’s paper concludes that contemporary models used by the courts based on intentional racism “… may either fail to identify discrimination or wrongfully attribute discriminatory motive to a well-intentioned, though biased, decision-maker.”55 This contention is based on the fact that judicial decisions were premised on outmoded models no longer supported by empirical studies or contemporary theory.56 The principal conclusions she reaches are that: (i) racism is far more likely to exert its effects through unconscious channels than through conscious ones;57 (ii) the decision-making process is not, as had been assumed in much of the case law, a “moment-in-time” phenomenon but is mediated by much longer term influences: “stereotypes, person prototypes, and other implicit knowledge structures bias decision-making long before the ‘moment of decision,’”58 and; (iii) Title VII litigation had become infected with the notion of invidious intent on the part of the decision-maker, arising from the fact that
people have a strong tendency to attribute emotionally relevant events to emotionally relevant causes; a profoundly negative event tends to be attributed to profoundly negative causes. Accordingly, to the extent that we see employment discrimination as a profoundly negative phenomenon, we will tend to attribute it to profoundly negative causes, such as the morally reprehensible action of an invidiously motivated decisionmaker.59
But Krieger demonstrates that racial bias may arise even in the absence of conscious racial animus. Indeed subconscious bias is a far more likely source of disparate treatment or impact in most decisions involving race. Thus the demand for evidence of intention does a disservice not only to the aggrieved party, who may find it immensely difficult to meet this demand, but also to the party accused of discrimination, who will face an accusation of intentional racism (since that is the only legally relevant form where equal protection or Title VII is concerned) even though their mental state will be less culpable (in the sense that the decision-maker will be unaware of their bias), though no less significant in terms of its effects. As Krieger puts it, “[t]o say that a decisionmaker lacks discriminatory motivation is not to say that his perceptions and judgments are unaffected by cognitive sources of intergroup bias.”60 Although environmental justice cases tend to involve disparate impact under Title VI, it would seem reasonable to assume that Krieger’s conclusions in relation to the sources of bias would apply to environmental decision-making with equal force. As Krieger herself points out, “in the interests of normative coherence, disparate impact and social cognition-based disparate treatment should be understood and remedied in substantially similar ways.”61
The fact that racism has become routinely associated with intention, and thus an accusation of racism carries with it connotations of deliberate and hostile or even malicious enmity towards racial groups, is a theme taken up by Adjoa Aiyetoro, who considers that this perception is responsible for the impoverishment of discourse on race and discrimination in contemporary America.62 Although I have elsewhere taken issue with some of Professor Aiyetoro’s other conclusions,63 I agree with her view that the automatic association of racism with “animus” which has come to dominate discrimination jurisprudence must adversely affect the willingness of parties to engage in constructive dialogue. As Aiyetoro puts it, “[t]he association of racism with a conscious act that is … illegal makes the accusation that race was a factor in a decision analogous to a racial slur—a disparaging remark.”64 Or put another way, most people do not like to be accused of racism and become defensive if such an accusation is made or implied.