Topic: The Pursuit of Environmental Justice

Speaker's name:Deepa Badrinarayana
Professor of Law at Fowler School of Law, Chapman University

Abstract: 
Racial and economic minority communities bear an unequal share of harm to person and property because of economic development activities. Environmental regulations notwithstanding. The promise of equal protection of laws notwithstanding. This environmental injustice is a singular blot on the environmental protection movement. Efforts have been made to address the problem, including presently, by the Biden administration’s commitment to reinvigorate efforts to address environmental justice. However, these efforts are rooted in executive inclination rather than legislative or constitutional mandate, and thus, largely discretionary. How did we get to this point, where the fulfilment of a fundamental constitutional right has been relegated to discretionary action? We are here because of the Supreme Court’s interpretation limiting the Equal Protection Clause to intentional discrimination, and the application of the same requirement to claims under Title VI Section 601 of the Civil Rights Act under which discriminatory environmental protection claims were filed. Specifically, absent proof of a specific intent to subject protected groups to discriminatory environmental impact, judicial scrutiny is not triggered, even if there is evidence of de facto disparate impact. Proof of deliberate discriminatory impact is nearly impossible to produce for several reasons, notably the historical parallel development of environmental and civil rights laws meant that environmental protection laws were facially neutral, and neither movement deliberately considered how state action would impact racial minorities, who had yet to fully attain property rights and equal citizenship, differentially. Hence, the equal protection against disparate environmental harm has been effectively relegated to discretionary remedial action.

This problem warrants renewed attention now, because there is an urgent need to constitutionally root environmental justice. Not only do racial minorities continue to bear disproportionate environmental impact, but new categories of disproportionately impacted communities are emerging, especially in light of climate change and a steady increase in economic inequality. For instance, youth plaintiffs that have filed lawsuits against governments for inadequate legal response have staked the position that climate change affects the future generation disproportionately. In some jurisdictions abroad, older members of the society have claimed that they too are disproportionately affected by climate change. Economic minorities exposed to disparate environmental harm are also increasing, not only among historical racial minorities, but also as a distinct class. The promise of equal protection of laws appears increasingly elusive.

Present efforts to achieve environmental justice, however, have veered away from the Equal Protection Clause, given the nearly insurmountable obstacles of specific intent. Environmental plaintiffs are now focusing on carving out a distinct constitutional right to clean and safe environment, primarily within the Due Process Clause. State constitutional amendments is another emerging strategy, as evidenced by the recent amendment to the Constitution of the State of New York incorporating a right to clean and safe environmental protection. While these efforts are noteworthy strategies to address current environmental problems, the issue of environmental justice warrants a deeper re-think and re-boot generally, and to evaluate the normative function of law in an even more fundamental manner. Yet, the core normative rationale for pursuing even such a right remains ambivalent. Towards this end, this Article draws attention to the normative companion of the Constitution, the Declaration of Independence. In particular, this Article suggests that keeping in mind the problem of environmental justice, all branches of government should carefully consider in their decision-making vis-à-vis environmental issues one of the most significant aspirations that drove the founding of the United States of America, the pursuit of Happiness. That aspiration is particularly significant at this moment when increasing environmental stress and economic wealth present increasing challenges to the rule of law and the foundational tenets that led to the founding of the Nation.

Bio: Deepa Badrinarayana is a professor of law at Fowler School of Law, Chapman University, where she teaches seminars in international law, international environmental law, climate change, as well as the 1L Torts class. Her scholarship focuses primarily on climate change and environmental law with emphasis on international law dimensions, human rights, trade, and environmental justice, areas in which she has published and delivered papers on regularly. Prior to teaching at Chapman, Professor Badrinarayana worked at Columbia University School of Law, where she was a visiting scholar at the Center on Global Legal Problems, an associate in the Law Teaching program, and research assistant to Professor Frank P. Grad. In India, Professor Badrinarayana was a research officer in a World Bank-Government of India Project on Environmental Capacity Building, and a founding team member of the Center on Environmental Education, Research, and Advocacy. In her role as research officer, she engaged in advocacy, consultation, and training work for lawmakers, judges, educators, and businesses. Professor Badrinarayana holds a Doctorate and a Masters’ degree in Environmental Law from Elizabeth Haub School of Law, Pace University, as well as a Bachelors’ in Law with honors from the National Law School of India, Bangalore.