Could Supreme Court’s admissions decision affect Mass. climate law?

AT THE END of this past year’s term, the US Supreme Court issued a decision finding that affirmative action programs at Harvard and the University of North Carolina violate the Equal Protection Clause of the Fourteenth Amendment.  Reasoning that college admissions are zero-sum and consideration of race necessitates “employ[ing] race in a negative manner” as to some applicants, the court rejected any continued use of race in considering college applications. 

In the wake of this decision, the Commonwealth must carefully consider whether its laws, programs, and activities that explicitly take race into account may continue to operate.  Some of the environmental justice provisions of An Act Creating a Next-Generation Roadmap for Climate Policy, signed into law in March 2021 (the “2021 Climate Act”), explicitly take race into account.  Depending on how those provisions are used and applied by the state, there could be significant risk of a successful legal challenge, requiring the state to rework its environmental justice framework.   

Importantly, much of the 2021 Climate Act’s reference to environmental justice is race-neutral.  The Secretary of Energy & Environmental Affairs is required to consider “environmental justice principles” and direct her agencies to consider those principles in making certain policies and decisions.   

The law defines these principles as ones “that support protection from environmental pollution and the ability to live in and enjoy a clean and healthy environment, regardless of race” or membership in other protected classes, including “(i) the meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies, including climate change policies; and (ii) the equitable distribution of energy and environmental benefits and environmental burdens.”  The Supreme Court’s decision does not call into question these race-neutral principles or their application to policy-making. 

Census block groups are geographic units used by the US Census Bureau to publish data.  They generally include between 600 and 3,000 people and have defined geographical boundaries.  Massachusetts contains approximately 5,000 block groups.  Of those, approximately 2,600 meet the criteria to qualify as an “environmental justice population.”  Over 50 percent of those approximately 2,600 environmental justice populations qualify solely as a result of the percentage of minorities who live in the block group, rather than meeting the purely income-based or English-language based criteria. 

The 2021 Climate Act requires the state to use environmental justice populations in connection with review of projects under the Massachusetts Environmental Policy Act.  Any other use of environmental justice populations is discretionary.  The mandated use in the context of the Massachusetts Environmental Policy Act is likely to survive legal challenges.  However, other discretionary uses of environmental justice populations—particularly in the context of competitive grant-making and siting projects that have significant environmental burdens or benefits—carry significant risk. 

MEPA review is required for proposed projects (1) undertaken by state agencies, that seek the provision of financial assistance from a state agency, or require a permit from a state agency; and (2) that are likely to cause damage to the environment.  The MEPA review process is not itself a permitting process.  It is a process designed to gather information about environmental impacts and alternatives to better inform agency decision-making, including in any subsequent state permitting.  When a project likely to cause damage to the environment is near an environmental justice population, the 2021 Climate Act mandates enhanced outreach and enhanced review.  This review must include “an assessment of any existing unfair or inequitable environmental burden and related public health consequences impacting the environmental justice population from any prior or current … operation or project that has damaged the environment.”  If those baseline burdens or consequences are found, then the review must also identify certain impacts and consequences that the proposed project would have on the environmental justice population.   

Thus, proximity of a project to an environmental justice population impacts the amount of analysis in a MEPA review but does not dictate any outcomes for the project.  This is entirely consistent with the Supreme Court’s decision, which reaffirmed that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” so long as the applicant is “treated based on his or her experiences as an individual—not on the basis of race.”   

In other words, college admissions officers may consider individual experiences of applicants, as expressed through an essay, interview, or otherwise, even if those experiences are inextricably intertwined with the applicant’s race.  This is exactly how MEPA review is designed to function under the 2021 Climate Act.  If past discrimination based on race, linguistic isolation, or low income has resulted in inequitable environmental burdens near a proposed project, the review must incorporate the existing burdens themselves, as distinct from any past discrimination that contributed to the siting of those burdens.   

In contrast, distributing competitive grants and siting of projects with significant environmental burdens or benefits based on proximity to an environmental justice population is more susceptible to a successful challenge.  Unlike MEPA review, and much like college admissions, grant distribution and project siting are typically zero-sum.  The state does not have unlimited funds to give grants to build parks: only some parks will be funded.  A necessary energy transmission project with negative environmental impacts that is not sited on one route must be built along another route.  In these contexts, it is difficult to avoid the Supreme Court’s conclusion that “[a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”  Because grants are so analogous to admissions, it is not surprising that a Massachusetts quasi-governmental agency’s decision to make grants available based, in part, on race has attracted a recent lawsuit from a nonprofit legal organization. 

To evaluate the use of environmental justice populations in these contexts, a reviewing court would apply the legal standard of strict scrutiny.  Use of environmental justice populations to make grant or siting decisions must be “narrowly tailored to further compelling governmental interests.”  It is difficult to argue that the criteria making up the definition of environmental justice populations are narrowly tailored to equitably distributing environmental burdens and benefits.  At best, current racial demographics are correlated with geographic areas that bear elevated environmental burdens and have access to fewer environmental benefits.   

A challenger would, of course, need to have standing—to have suffered some kind of injury—to maintain a lawsuit against a program that uses environmental justice populations to distribute benefits or burdens.  Anyone, regardless of race, may pursue a project in or near an environmental justice population.  Thus, an applicant denied a grant may lack standing to sue because the denial would not be based on the applicant’s race, but on the racial makeup of the location where the applicant planned to expend grant funds.  However, residents in block groups who do not receive benefits from programs designed to promote projects in environmental justice populations (or who bear environmental burdens diverted from environmental justice populations) may be proper plaintiffs. 

One way to insulate programs from these challenges would be to incorporate a program design, like MEPA review, that digs more deeply than simply determining whether a project is in or near an environmental justice population.  By examining the underlying environmental issues, MEPA review moves beyond race and does so in a constitutionally permissible manner.   

Benjamin Goldberger is an attorney at Anderson & Kreiger LLP and former general counsel  of the Executive Office of Energy & Environmental Affairs.  The views expressed in this article are his alone, and not necessarily those of any current or former employer.