Katie Metzger
93 Geo. Wash. L. Rev. 189
As environmental justice issues garner national attention, legislatures have considered ways to address unequal exposure to environmental hazards. Some have passed laws that prioritize brownfield remediation grants to minority communities with the goal of getting grant money to communities that need it most. These laws are subject to strict scrutiny review because they differentiate on the basis of race. To survive strict scrutiny review, the government must prove that it has a compelling interest to remediate racial discrimination and that the policy is narrowly tailored to meet that interest. This Note argues that neither federal nor state governments are likely to meet these requirements because courts have imposed a nearly insurmountable burden to overcome strict scrutiny. Instead, this Note proposes that states should prioritize environmental grants to communities that are subject to the highest number of environmental burdens. The Council of Environmental Quality already lists thirty environmental burdens that qualify a community as “disadvantaged.” State legislatures can use these factors to assess which communities are faced with the greatest cumulative environmental burdens. This will address the racial disparity in proximity to environmental hazards because Black, Hispanic, and Asian communities are, on average, disproportionately subject to higher cumulative burdens. Importantly, it will also avoid strict scrutiny review by remaining race-neutral.
