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Environmental Justice and the Constitution

May 2009

Citation: 39 ELR 10347

Issue: 5

Author: Sheila R. Foster

In a recent essay, David Coursen asks an important and unexamined question: Are environmental justice policies, which seek to avoid disproportionate environmental burdens on minority and poor communities, on a "collision course" with the Equal Protection Clause? In concluding that a potential collision is more illusory than real, Coursen offers a number of reasons why governmental actions to promote environmental justice have not been challenged in court and, even if they were to be, would not be subjected to strict judicial scrutiny. The most compelling of these reasons is what I would call the "democratic process" rationale. This rationale explains that courts are likely to defer to environmental justice policies because they are instigated as part of the core governmental function of either the legislative or executive branches of government. Other reasons cited by Coursen include the fact that no "legally protected interest" is at stake in environmental justice policies, that such policies involve special attention to "groups" and not "individuals" and thus fall outside of the clause's scope of protection for individual rights, and that a potential claimant challenging an action based on environmental justice would lack standing to pursue such a claim. These other reasons are far less compelling and in some instances rest on a flawed understanding of equal protection jurisprudence.


Sheila Foster is Associate Dean for Academic Affairs and Albert A. Walsh Professor of Law, Fordham University.

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