Not everyone would make a connection between the recent Supreme Court affirmative action decision on college admissions and the Massachusetts environmental permitting process. Although it may seem attenuated, for environmental and land use attorneys, we see a link. For example, concerned about the potential for legal challenges to its proposal to direct hundreds of millions of dollars in federal environmental funding to minority communities, in 2022, the White House excluded any mention of race from its Climate and Environmental Justice Screening Tool. Commentators are prognosticating further rollbacks on the emphasis on race in federal and state environmental justice programs. What, if anything, this means for future Massachusetts policy remains to be seen.
Massachusetts law and policy explicitly contain race-based considerations in permitting new projects and allocating environmental benefits and burdens among communities of differing races, ethnicities, English language proficiency, and income levels. In brief summary, under the Massachusetts Environmental Justice Policy, the level of governmental scrutiny of environmental and public health impacts during permitting of projects depends upon the project’s proximity to low-income, non-English speaking, or minority populations. The Commonwealth also proposes to include these same considerations in its allocation of environmental benefits, such as funding for brownfield projects.
In Students for Fair Admissions v. UNC and Students for Fair Admissions v. Harvard, the Supreme Court declared unconstitutional college admissions programs that consider the applicant’s race. Commentators view Students for Fair Admissions more broadly as the Supreme Court’s shift to the right, away from endorsing affirmative action in other government programs. Most believe that the decision will complicate race-based environmental justice programs. We can see a day when some frustrated developer will bring such a challenge and test the limits of the application of race, national origin, or ethnicity in environmental permitting decisions.
It will be interesting to see how these considerations play out in the courts and at the legislative and agency levels across the nation. As of today, we have not seen or heard anything from Massachusetts regulators, the regulated community, or the local not-for-profit organizations which take policy positions on these types of issues. But stay tuned as we continue to track and keep you informed about these interesting corners of environmental law.
