It once might have seemed that the federal policy of promoting environmental justice was on a collision course with limitations the Equal Protection Clause imposes on federal actions to benefit minorities. In February 1994, Executive Order (EO) 12898 directed federal agencies to take special steps to ensure environmental protection for low-income and minority communities. In June of the following year, the U.S. Supreme Court effectively outlawed using race in federal decisionmaking by subjecting such uses to strict judicial scrutiny, a standard so rigorous and demanding that it has been described as "strict in theory, fatal in fact."

No such collision occurred. Not only have there been no significant reported decisions applying strict scrutiny to government actions to promote environmental justice, but the U.S. Congress has enacted legislation mandating affirmative steps to ensure preferential treatment regarding financial assistance for minority communities. This Article discusses four reasons why federal actions to promote environmental justice are not subject to strict judicial scrutiny: (1) the EO applies to actions by executive branch agencies exercising the core governmental function of executing federal law, and Article III limitations on the judicial power preclude federal courts from applying strict scrutiny to other branches' performance of core governmental functions; (2) equal protection applies to governmental actions that "deprive" individuals of a "legally protected interest," but no individual has such an interest in a type or level of environmental protection; (3) environmental justice protects groups--"minority... or low income populations"--but equal protection is an individual, not a group right; and (4) a claimant challenging government action to promote environmental justice would likely be unable to establish standing to pursue such a claim.