Posted on July 26, 2023 by Heidi Friedman
As so many of my professional circles eagerly awaited the Supreme Court’s decision in Students for Fair Admissions v. Harvard (the Harvard Decision), they wondered what it might mean for the Biden administration’s environmental justice (EJ) priorities and initiatives. See for example this April 2023 Executive Order committing to EJ. While some attorneys have drawn straight lines connecting the Harvard Decision and EJ, my view is that the Harvard Decision should have no impact on the implementation of these priorities. First and foremost, the Harvard Decision is very limited and focused on higher education, and the Court declined to address the issue in broader form. In fact, you must read the Gorsuch concurring opinion to even obtain a Title VI analysis, and Title VI of the Civil Rights Action is the one regulatory framework that has been tied to EJ through both enforcement and litigation.
While this administration has highlighted and provided funding for environmental justice, it is not a new concept at all. It has existed for as long as I have practiced environmental law (and before I even went to law school). The need for community involvement/participation and the avoidance of disparate impacts are here to stay. Environmental justice is not an issue that relies solely on race. Instead, it is a complex issue focused on a sophisticated analysis of many factors. While race is one of several demographic markers, socioeconomic data, educational information, air quality and proximity to hazardous conditions are just a few of the other elements that form the larger environmental justice puzzle. In fact, if you are using Biden’s Climate and Economic Justice Screening Tool (CEJST), designed to help identify areas to target with the Justice40 Initiative funds, race is not even a factor that tool analyzes.
However, the Harvard Decision may indeed spur additional litigation, especially in the ESG realm with a focus on the “S” pieces of company programs. We have already seen challenges to DEI policies and an increase in reverse discrimination suits. I expect more anti-ESG legislation and challenges to pro ESG legislation. Yet, despite all of this, our friends in the EU are currently leading the charge on ESG and global companies are likely to face growing challenges as global ESG mandates continue to tighten even though disputes around ESG continue in the United States.
Thus, I would propose we use the Harvard Decision as a good reminder that industry, communities and regulators need to continue working together to advocate for more efficient and effective manufacturing operations and remediation projects. Industry can avoid permit project uncertainty, operational interruption, enforcement, community activities disruption and brand damage if it recognizes the need to consider the community (however that is defined) as a partner on the front-end worthy of updates and input. There are a litany of proactive measures companies can take to further EJ goals and regulators and communities alike would applaud and support these efforts. Only time will tell how the Harvard Decision will be used but I would not expect a slow down on the EJ front.