The Corner

Law & the Courts

Make Sure Your Pollution Is Racially Fair

Readers of The Corner know that I don’t like the “disparate impact” approach to civil-rights enforcement, and while it’s a bad idea when used to challenge firefighter exams, criminal background checks, English proficiency, school discipline policies, policing, mortgage lending, and voter ID laws – to give just a few examples – I’ve always had a special place in my heart for its use by bureaucrats to challenge pollution that fails to strike the right racial balance. But, “[i]n recognition of Earth Day and Arbor Day,” the Obama administration today highlighted those efforts in this publication.

Now, I’m prepared to believe that the government needs to consider stepping in from time to time to stop pollution, but what I don’t understand is why racial considerations should ever be part of that consideration. That is, if the pollution is dangerous, then why should it be allowed — or not allowed — depending on the racial makeup of its victims? If a polluter’s activity will hurt those living nearby, why is it acceptable if that population is white or racially balanced, but not acceptable if those being hurt belong to a racial or ethnic minority group?

But this is exactly the approach the government overtly takes. To quote from an example proudly showcased in today’s publication, a violation was found “when the cities failed to assess the potential adverse disparate impacts stemming from relocation of a trolley maintenance facility to a historically Black neighborhood. As a direct result of [the federal government agency’s] involvement in the matter, city officials agreed to keep the facility near its current location.” That may be fine for the “historically Black neighborhood,” but what about the folks “near its current location”?

Too bad for them. The agency here insisted that those getting federal money “must consider and analyze alternatives [in location] to determine whether those alternatives would have less of a disparate impact on the basis of race, color, or national origin, and then implement the least discriminatory alternative.”  In other words, the government insists that whether or not there is an environmental problem worthy of federal intervention depends in part on the skin color and ancestral origin of those put at risk.

Happy belated Earth and Arbor Days!

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