Over the past five decades, the U.S. Environmental Protection Agency (“EPA”) moved from purposeful disregard of environmental racism to a public embrace of environmental justice as an organizational priority. Unfortunately, its efforts to address environmental discrimination remain a work-in-progress. This Article posits that the Agency’s core difficulties have arisen out of its reluctance to accept the continuing salience of race and the substantive implications for its regulatory work. It has blinded the Agency to the evolving manifestations of environmental discrimination and associated harms. The effect has been to impede the aggressive enforcement of antidiscrimination laws, particularly the discriminatory effects regulations of Title VI of the Civil Rights Act.
In this Article I argue that the EPA’s past failure to seriously grapple with the salience of race in its approach to environmental justice has created three serious blind spots in the Agency’s civil rights enforcement program. First, EPA has extended unwarranted trust regarding compliance, even in instances of repeated discrimination complaints. Second, its superficial (albeit earnest) reviews of discriminatory effect allegations with respect to pollution risks have ignored the harms that even small increments of pollution risks can pose to communities of color. And third, its commitment to scientific analysis has allowed science to become a shield against social justice concerns and compounded environmental harms to environmental justice communities.
While these issues are specific to the Title VI context, like the proverbial canary in the coal mine, they call attention to deep-seated policy issues endangering the environmental welfare of vulnerable communities more generally. There are straightforward policy fixes to address the specific shortcomings identified here. The Biden Administration’s efforts in this regard have been substantial and promising. However, long-term solutions to the environmental quality shortfall experienced by vulnerable communities more generally will require structural and cultural changes in the Agency.
Tseming Yang, Old and New Environmental Racism, 2024 ULR 109 (2024).