Defending Race-Conscious Policy

Abstract

Beginning in the 1980s, a coalition of community groups, activists, and non-profits loosely referred to as the “environmental justice movement” campaigned to draw awareness to the disproportionate distribution of environmental burdens to low-income communities of color. These burdens cause severely negative health impacts, reduce property values (which in turn reduce generational wealth), and im-pact quality of life. Low-income communities of color also receive few-er environmental benefits, including parks and green space (which re-duces heat in urban areas) and access to healthy food. Climate change further threatens vulnerable communities by causing increased heat in already-overheated neighborhoods, more frequent and severe storms, and rising sea levels in coastal areas.

In 2019, New York State enacted the Climate Leadership and Com-munity Protection Act (CLCPA), an ambitious piece of legislation that creates a framework to reduce statewide greenhouse gas emissions and to invest in “disadvantaged communities” (DACs). The latter goal reflects the environmental justice movement’s success. The current set of criteria developed under the CLCPA to identify U.S. census tracts within New York as DACs considers, among a large set of factors, the racial and ethnic demographics of the tracts. While this approach re-flects the environmental justice movement’s values, it also makes the CLCPA vulnerable to a potential constitutional challenge. Drawing on decades of precedent from the U.S. Supreme Court in cases regarding affirmative action programs, a plaintiff might bring a case arguing that the New York State government is distributing benefits based onindividuals’ race or ethnicity, in violation of the Equal Protection Clause.

This Note examines the degree to which the CLCPA’s current DAC criteria are vulnerable to such a challenge, and sets forth how the state might argue that the DAC criteria do not violate the Equal Protection Clause. Specifically, this Note argues that the state could mount a strong argument at the outset that such a plaintiff cannot satisfy the requirements for standing. In the alternative, the state could argue that the criteria should not draw strict scrutiny because race and eth-nicity are relatively insignificant factors in a complex and context-sensitive process. If the criteria do draw strict scrutiny, the govern-ment could argue that it has a compelling interest in remedying the ef-fects of its past acts of racial discrimination, and that the criteria are narrowly tailored to this interest. And finally, the government could argue that even if the criteria are unconstitutional for considering race, the issue is severable, and the criteria can be easily amended to remove race and ethnicity.