The “disparate impact” approach to civil-rights enforcement is bad policy in any area – employment, voting, housing, credit, school discipline, policing, pizza delivery, you name it – but it is perhaps most bizarre in environmental law, where its labeled “environmental justice.”
The approach in general considers it to be illegal discrimination if a practice has a statistically disproportionate racial effect, even if the challenged practice is neutral by its terms and in its intent, and is evenhandedly applied. So, for example, if a landlord prefers not to rent to people with a record of violent-crime convictions, he can be held liable if that policy results in a higher percentage of those of this race being disqualified than that race – even though he adopted it with no racial intent and applies it to all prospective tenants.
And in the environmental area, this means that the government tells an agribusiness, for example, “This pesticide that you are using is making children sick in a nearby neighborhood. Now, we know that you don’t intend any racial discrimination, and we would be okay with children getting sick if the neighborhood were racially mixed, but the problem is that it is a heavily minority neighborhood. Therefore, you must stop.”
As I said, that’s just bizarre. If the business were deliberately targeting minority neighborhoods, that would be different; and if the government said that making children sick in any neighborhood was illegal, that would make sense, too. But saying that the illegality depends on unintended racial outcomes does not. I testified on this a year ago before the U.S. Commission on Civil Rights.
So it’s good news that the Trump administration has announced that it wants to close the Environmental Protection Agency’s Office of Environmental Justice, and that its proposed budget starts the job by making cuts in the office’s budget and personnel. This has prompted the office’s head to announce his resignation this week, and that’s fine, too.
On the other hand, the Trump administration has also said that it still supports the idea of environmental justice, that this work will be done elsewhere at EPA, and indeed that yesterday it was launching an environmental justice investigation against the Hawaii Department of Agriculture and Agribusiness Development Corporation. All that’s too bad, and the administration needs to do some rethinking.
One last note: The purported authority for the federal government’s “environmental justice” efforts is Title VI of the 1964 Civil Rights Act, which is also bizarre, since the Supreme Court has said that this statute contains no “disparate impact” ban. Thus, for federal agencies to use the disparate-impact approach under this statute is a classic example of regulatory overreach. It is not only bad policy, but illegal.