A changing equal protection landscape does not change the legality of environmental justice initiatives.
Environmental justice programs are under threat. Since re-assuming office, President Donald J. Trump and his Administration have rescinded key executive orders, cut agency staffing, and revoked rules protecting public health in vulnerable communities—among much else. In the process, the Trump Administration has broken from three decades of bipartisan—if fluctuating—support for redressing environmental inequities.
To justify its actions, the Administration has turned to the Equal Protection Clause of the U.S. Constitution, which forbids the government from denying the equal protection of the laws. More specifically, the Administration has suggested that the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, in which the Court held that the race-conscious college admissions processes of federally funded universities violate the Equal Protection Clause, requires eliminating environmental justice initiatives wholesale.
That suggestion is incorrect, as I explain in a new report. Although the Supreme Court’s affirmative-action jurisprudence does impose meaningful constraints on environmental justice initiatives, it does not render them categorically unlawful. Environmental justice programs vary substantially, and the relevant constitutional considerations differ across contexts. Where environmental justice programs do not involve racial classifications—as many do not—Students for Fair Admissions has little application. Just as importantly, nothing in that decision prevents the government from considering the historical legacies of racism, even if it may not consider present-day racial demographics.
For one thing, many environmental justice initiatives do not trigger heightened scrutiny under the Equal Protection Clause, meaning that courts have little authority to hold them unlawful.
Heightened scrutiny applies only where the government “classifies” among persons “with resulting disadvantage to various groups or persons.” Many environmental justice initiatives confer no benefits and impose no burdens. Procedural initiatives—such as staffing environmental justice offices, promoting interagency coordination, and collecting data on environmental inequalities—have all long been central to federal environmental justice programming. Such initiatives merit only rational-basis review, under which a court asks only if the government’s action is rationally connected to achieving a legitimate government interest—a standard that those initiatives can easily meet.
Other environmental justice initiatives arguably do distribute benefits and burdens but involve no suspect classifications. As Justice Amy Coney Barrett has recently explained, laws routinely “distribute benefits that advantage particular groups” and “set rules for specific categories of people” without becoming unconstitutional. Educating stakeholders, disseminating environmental information, and collaborating with communities on enforcement and monitoring all fit that description. So long as they remain open to all, regardless of race, such initiatives are plainly lawful.
Almost as straightforward are initiatives that classify individuals on the basis of non-suspect categories. While some governmental classifications, such as race, require heightened judicial scrutiny, others, including environmental vulnerability, disability, tribal affiliation, and wealth, do not. Government action relying on such classifications likewise receives—and almost always passes—rational-basis review. Indeed, attending to the individual characteristics of those affected by government action is part and parcel of rational government decision making. For example, targeting remedial initiatives at communities facing the greatest pollution burden is both eminently sensible and plainly constitutional.
The Biden Administration’s Justice40 Initiative illustrates how such remedial action can be designed. President Joseph R. Biden’s executive order titled “Tackling the Climate Crisis at Home and Abroad” set a goal to have 40 percent of benefits from certain federal environmental investments “flow to disadvantaged communities.” The Office of Management and Budget instructed federal agencies to identify those communities by considering “a combination of variables” that included income and environmental burdens—but not race.
Use of non-suspect classifications, such as income, becomes constitutionally problematic only when decisionmakers use them as proxies for suspect classifications, such as race. Where a plaintiff can show, for example, that racial discrimination was a “motivating factor” behind adopting a challenged policy, the government then bears the burden to show that it would have adopted the policy regardless of its racial impact. If the government fails to carry that burden, the policy will likely be invalidated.
Moreover, although some environmental initiatives explicitly consider the legacies of racism, doing so does not amount to considering race.
Even government actions targeting racism need not involve racial classifications. In Students for Fair Admissions, the Court explained that while state actors may not rely upon racial “stereotypes,” they may consider “how race affected” an individual’s life. More recently, the Court reasoned in United States v. Skrmetti that not every “reference” to a suspect classification such as race “is sufficient to trigger heightened scrutiny.” Rather, if the government is not targeting a “suspect class” and its action does not “turn on” a suspect classification, then even if the classification is “bound up” with the government’s action, only rational-basis review applies.
Together, these cases indicate that environmental justice initiatives remedying the historical consequences of racism remain lawful. President Biden’s executive order titled “Revitalizing Our Nation’s Commitment to Environmental Justice for All” directed agencies to address harms related to “the legacy of racism.” Understanding such legacies is mainly a historical inquiry: An agency might examine how a discriminatory zoning decision in the past exposed a community to air pollution, and then avoid compounding that harm. Nothing in that inquiry need turn on the community’s current racial composition, which might have changed since the discrimination occurred. Rather, the underlying concern is the community’s current vulnerability, to which past discrimination contributed.
A community’s present-day environmental vulnerability matters most in permitting decisions. The U.S. Environmental Protection Agency has acknowledged that industrial facilities have historically “added to the pollution burden in already vulnerable communities,” sometimes in a discriminatory fashion. In determining whether to permit new facilities in those communities, the government may consider this history without triggering strict scrutiny.
And even race-conscious analysis may escape strict scrutiny when the final decision it supports does not expressly classify by race.
Most government actions aimed at promoting environmental justice—such as permitting decisions, rulemaking, and grant distributions—are race-neutral on their face. That is, the permits, regulations, and funding awards themselves nowhere refer to race. In this respect, these actions differ from, say, laws that set aside government contracts for “minority-owned businesses.” Facially race-neutral decisions are ordinarily subject to rational-basis review even if the decisionmakers considered race to some degree.
Although the Supreme Court has not clearly articulated the doctrine authorizing departures from rational-basis review, its decisions indicate that such exceptions are limited. Where the government distributes benefits through facially neutral means, such as college-admissions decisions, a party may establish standing to sue by alleging that they were forced to compete for those benefits in a race-based process. Then, the Court will subject that entire decisionmaking process to strict scrutiny—the highest standard of review. Absent any such alleged injury, however, the burden-shifting framework applies to alleged proxies. This means that many facially neutral rules or policies are not subject to the same searching Equal Protection inquiry in which the Court in Students for Fair Admissions engaged.
Regulatory decisions illustrate the point. Suppose decision-makers consider race as part of an environmental justice analysis. Even then, the resulting regulation will essentially always be facially race-neutral: emission standards, for example, nowhere refer to race. Strict scrutiny will therefore apply only if race was a “motivating factor” behind the rule, such that the same rule would not have been adopted if the agency had not considered race. In other words, what matters is how much weight decision-makers gave to race, not merely whether they considered race at all.
Finally, even if strict scrutiny does apply, it is not necessarily fatal to an environmental justice program.
When strict scrutiny applies, the government must show that its use of race was narrowly tailored to further a compelling governmental interest. The Court has recognized a compelling interest in “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” Before the government pursues this sort of remedial interest, it must have a “strong basis in evidence” concerning discrimination in the relevant jurisdiction. Students for Fair Admissions added four further requirements: measurability of remedial success, a logical endpoint, no use of race as a reason to exclude individuals from benefits, and no stereotyping. But the first three requirements add little to a properly documented remedial program, which by definition specifies its objective, its endpoint, and its evidentiary basis. And the bar on stereotyping is satisfied so long as the government considers how racism affected a particular community rather than relying on generalizations.
Students for Fair Admissions did not place environmental justice initiatives in categorical legal jeopardy. It reaffirmed that racial classifications are suspect, especially when detached from how race actually affected those classified. But most environmental justice work distributes no benefits, uses non-suspect classifications, or examines the legacies of racism rather than race itself. And where race is a motivating factor or an express criterion, Students for Fair Admissions adds little to what strict scrutiny already demanded.
