White House Takes Aim at Environmental Racism, but Won’t Mention Race

Source: By Lisa Friedman, New York Times • Posted: Wednesday, February 16, 2022

Communities of color bear a disproportionate burden from pollution, research shows. But using race to allocate federal help could result in legal problems.

President Biden speaking from a White House auditorium last month. Administration officials hope to design a system to help communities of color even without defining them as such.
Sarahbeth Maney/The New York Times

WASHINGTON — As a candidate and then as president, Joseph R. Biden promised to address the unequal burden that people of color carry from exposure to environmental hazards.

But the White House’s new environmental strategy to tackle this problem will be colorblind: Race will not be a factor in deciding where to focus efforts.

Worried that using race to identify and help disadvantaged communities could trigger legal challenges that would stymie their efforts, administration officials said they were designing a system to help communities of color even without defining them as such.

“We are trying to set up a framework and a tool that will survive, and one that still connects to what the on-the-ground impacts are that people are experiencing,” said Brenda Mallory, chairwoman of the White House Council of Environmental Quality, which is designing the system. “I feel that we can do that based on race-neutral criteria.”

That approach comes during a decades-long fight over what role race should play in public policy, and what is permitted under the Constitution.

The Supreme Court, with its new conservative supermajority, is poised to hear a case this term that could turn back 40 years of precedent that said race could be used as one factor in determining college admissions.

Lower courts, meanwhile, have rejected the Biden administration’s efforts to forgive loans for minority farmers as part of a $4 billion program intended to address a long history of racial injustice in farming. A separate, pending legal challenge accuses the Biden administration of pushing white men “to the back of the line,” claiming that it is giving preference for Covid relief funds to restaurant owners who are women and minorities.

Using race as a factor in decision-making could also create political problems for Democrats during an election year when some Republicans appear to be trying to tap into white grievance. For example, President Biden’s recent announcement that he would nominate the first Black woman to the Supreme Court prompted Senator Ted Cruz of Texas to remark, “He’s saying, ‘If you’re a white guy, tough luck.’”

Amr Alfiky/The New York Times

To step away from race, the Biden administration intends to identify towns and neighborhoods that need environmental help based on dozens of data points like household income, unemployment rates, air pollution levels and proximity to Superfund sites, incinerators and other hazards. Just not racial or ethnic demographics.

Under the plan, known as Justice40, at least 40 percent of the benefits of federal investments in environmental cleanup, clean energy and climate mitigation would be felt in disadvantaged communities.

Ms. Mallory said she believed the strategy would lead the government to the same places as a race-based approach: communities of color.

Some legal experts agree with the administration’s strategy, calling it a pragmatic approach that will achieve the desired results.

But some advocates bristle at that assumption.

“When you look at the most powerful predictor of where the most industrial pollution is, race is the most potent predictor,” said Robert Bullard, a professor of urban planning and environmental policy at Texas Southern University and a pioneer in the environmental justice movement. “Not income, not property values, but race. If you’re leaving race out, how are you going to fix this?”

Decades of research has shown that the people most affected by environmental hazards are largely nonwhite and poor.

New studies have also suggested that when it comes to one of the most pernicious types of air pollution — fine particulate matter, or soot — Black Americans carry a higher burden than non-Hispanic whites or Asians, regardless of income levels.

Fine particulate matter from exhaust tailpipes, smokestacks and fires gets absorbed deep into the lungs and can cause respiratory and heart disease. Between 85,000 and 200,000 premature deaths each year are linked to fine particulate matter, according to a study published last year in Science Advances.

Last year, research funded by the Environmental Protection Agency found that exposure to air pollution varied more by race and ethnicity than by income: people of color were 2.4 times as likely to be exposed to heavy pollution than white people among different income levels.

Christopher Tessum, an assistant professor of environmental engineering at the University of Illinois Urbana-Champaign and lead author of that study, said in order to understand the communities most affected by air pollution, if one is looking at income alone, “you’re missing a lot of the story.”

Some studies suggest that Black Americans have lacked political power to block polluting facilities. One example took place in Michigan in 1992, when the state’s pollution control board approved a power plant in Genesee Township, next to a predominantly Black community. The power plant burned demolition wood waste, sometimes coated in lead paint, along with other fuel.

The Environmental Protection Agency found that decisions made by Michigan agencies responsible for permitting the power plant “resulted in African Americans being treated differently and less favorably than whites,” making it harder for them to oppose the project. The E.P.A. cited the example of a pollution control board that allowed white residents to testify before the public comment period while denying Black residents the same opportunity, and stationing armed guards at one hearing in a predominantly Black area, which ran counter to its usual protocol.

“You can be a person of color in a middle-income community and still be disproportionately impacted,” said Mustafa Santiago Ali, vice president of environmental justice at the National Wildlife Federation.

Dr. Bullard said an honest discussion of environmental justice must recognize that race is a factor. Anything else is “disingenuous,” he said.

“It’s almost like trying to deal with housing discrimination, but saying you can’t mention who is facing the discrimination,” said Dr. Bullard, who worked on a legal challenge in the 1970s that was the first to use the 1964 Civil Rights Act to fight the location of landfills and incinerators in mostly Black neighborhoods in Houston.

The Biden administration shouldn’t let the fear of lawsuits stop it from explicitly trying to correct racial disparity, said Dorothy A. Brown, a professor of law at the Emory University School of Law.

“They’re going to get sued whether or not they take race into account,” she said. “If you want to address environmental racism, there is no colorblind way to do that. The best defense would be to say this is remedial work based on past governmental discrimination. In 2022, if you want to help Black people, you’re going to get sued. So either you’re with the effort to help Black people or you’re not. But you can’t be timid about it.”

Mr. Biden was the first president to elevate environmental justice, the idea that all people have the right to protection from environmental and health hazards, as a core part of the White House agenda.

Two months before winning the presidency in 2020 and after a summer in which the country was convulsed by a series of racial justice protests, Mr. Biden promised he would work to rectify the extraordinary pollution burden borne by communities of color. Every American had a basic right to a healthy environment, he said.

“Fulfilling this basic obligation to all Americans — especially in low income, white, Black, brown and Native American communities, who too often don’t have clean air and clean water — is not going to be easy,” Mr. Biden said outside the Delaware Museum of Natural History in Wilmington.

“The unrelenting impact of climate change affects every single solitary one of us,” he said. “But too often the brunt falls disproportionately on communities of color, exacerbating the need for environmental justice.”

Once in office, he established a 25-member White House Environmental Justice Advisory Council, the first of its kind, and called on all federal agencies to ensure disadvantaged communities receive 40 percent of the benefits from federal investment in clean air and water, flood prevention, cleanup of Superfund sites, renewable energy and other improvements.

The Environmental Protection Agency administrator, Michael. S. Regan, visited largely Black and other communities of color in the South on a “Journey to Justice” tour, and promised more inspections and enforcement of environmental laws in communities affected by polluting industries.

But the practicalities of righting historical wrongs — racist zoning and housing policies that located polluting industries and highways in communities of color — have not been easy.

Mr. Biden’s top environmental justice adviser, Cecilia Martinez, resigned last month, saying that she felt she was “burning out” after working for years to make the issue a top government priority. The Justice40 screening tool is behind schedule, and some advocates worry the effort is losing momentum.

The environmental justice movement was sparked in 1982 when civil rights activists organized to stop the state of North Carolina from dumping 120 million pounds of soil contaminated with polychlorinated biphenyls, a carcinogen commonly known as PCBs, in Warren County, a predominantly Black community.

The next year, the General Accounting Office (the auditing arm of Congress that is now called the Government Accountability Office) found that three out of four hazardous landfill sites in the southeastern part of the country were located in Black communities. And in 1987, a landmark study from the United Church of Christ Commission for Racial Justice documented how race was the most significant factor in predicting where such waste sites would be located.

“When you look at the historic framework or the historic practices that have led us to where we are today, I don’t think anybody is fighting over whether race played a part in that,” Ms. Mallory said in an interview.

But if the administration were to use race to determine policy or funding for environmental programs, it would be tangled in court, constitutional law scholars said.

The Supreme Court has held that race-based classifications must be subjected to strict scrutiny to ensure that the government has exhausted race-neutral remedies, said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.

“The bottom line is, the Supreme Court is very hostile to any attempt to use race as a basis for giving benefits,” Mr. Chemerinsky said. The administration stands a better chance of keeping its environmental justice policies intact without being explicit, he said.

“Given the correlation between race and poverty in our society, they can get at what they want but in a way that’s race-neutral,” he said.

Toni M. Massaro, a constitutional law professor at the University of Arizona, agreed.

“The intention is to address some of these longstanding disparate harms,” she said. “Then comes the hard work of figuring out how to operationalize that, and a constraint that they have is that they must do so that is consistent with the case law.”

“There’s campaign talk and then there’s write-the-law talk,” Ms. Massaro added.

Ms. Mallory said a beta version of the Justice40 screening tool would be released soon. The public will be able to offer comments to improve it, she said.

“This is such a top priority for us,” Ms. Mallory said. “Every bit of our efforts right now are going to trying to get this out the door as fast as possible, but also in a way that will be successful.”