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Is your pollution politically correct and racially balanced?

Last Friday I was invited to testify before the U.S. Commission on Civil Rights regarding “environmental justice”—the peculiar idea that the legality of pollution should hinge in part on whether its victims are white or not.  There were several panels and the event lasted all day, but I was one of the very few conservatives who spoke.  Below is my slightly condensed testimony, with which the left-leaning Commission was not happy.

Introduction
Thank you very much, Mr. Chairman, for the opportunity to testify today. My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation.  I should add that Ms. Chavez was once the staff director of the U.S. Commission on Civil Rights, and that I was once the Deputy Assistant Attorney General in the U.S. Justice Department’s Civil Rights Division and, right after that, held the same position in the Environment and Natural Resources Division. 

The invitation I received from you said that you are conducting a study on the Environmental Protection Agency’s “compliance with Title VI and Executive Order (E.O.) 12,898” as part of your “annual statutory enforcement report,” particularly with regard to the placement of “coal ash disposal facilities near low-income and minority communities.”

General Issues Raised Here

The federal government certainly has an interest in ensuring that it does not fund programs or activities that discriminate on the basis of race, color, or national origin, and indeed Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d, forbids the funding of such programs.  Thus, if a company participating in a federal program or activity decides to aim pollution at a population on the basis of its race, color, or national origin, then this would violate Title VI.

EO 12,898 is aimed at federal agencies rather than recipients of federal money.  In addition, it directs those agencies to address adverse environmental “effects” on “minority populations and low-income communities”; in this respect then, by its terms, it is both narrower and broader than Title VI in that the latter involves disparate treatment rather than disproportionate effects (the Supreme Court has repeatedly held this), protects all racial and ethnic groups rather than only “minority populations,” and says nothing about “low-income communities.”

[What’s more, such an executive order] must at least be consistent with existing statutes, even if the guidance is not required by them.  In this regard, an executive order that provides protection to some racial and ethnic groups but not for others is, literally, denying the equal protection of the laws.  Thus, I would note that EO 12,898’s protection of “minorities” and not nonminorities is, to put it gently, constitutionally problematic.

In this regard, too, an executive order or statutory enforcement policies (including formal regulations, rules, informal guidance, and the like) that encourage actions prohibited by a statute are also problematic.  In this regard, then, EO 12,898’s apparent focus on disproportionate effects rather than disparate treatment is likewise a problem, since as discussed below it encourages race-based decisionmaking; so are EPA’s regulations.

The balance of my testimony will be about why using an “effects” test in this area is a bad idea as a matter of both law and policy.

Specific Problem of the Disparate-Impact Approach in Environmental Law Enforcement

To repeat:  The federal government certainly has an interest in ensuring that it does not fund programs or activities that discriminate on the basis of race, color, or national origin.  Thus, if a company participating in a federal program or activity decides to aim pollution at a population on the basis of its race, color, or national origin, then this would violate Title VI.

Suppose, however, that the pollution affects a neighborhood that was not targeted in this way, but has residents who happen to be disproportionately members of a particular racial or ethnic group or groups.  Should pollution that would otherwise be lawful become unlawful because of this racial disproportion?

That seems very odd to me.  Why should the federal government say this?: “Mr. Polluter, you need to do a better job in making sure that your pollution affects a politically correct mix of people.  You need to take steps to make sure that your pollution affects more white people, or else fewer nonwhite people.  Then it would be all right; but, as it stands, your pollution is illegal because it is not racially balanced.”

In my view, not only is this ridiculous as a matter of policy, it is also unsound as a matter of law.  Title VI itself bans only disparate treatment, not actions that have only a disparate impact.  It follows that Executive Branch regulations and policies under it that adopt the disparate-impact approach are ultra vires and invalid. 

I will elaborate in a moment on why, as a general matter, the disparate-impact approach is bad policy.  I would note at the outset, however, that it seems to me particularly untenable in the environmental area.  It is one thing to say that companies should try to avoid using hiring criteria that disproportionately exclude people of this or that racial or ethnic group; but to say that companies should try to pollute in a politically correct way is just silly.

Should companies try to locate manufacturing plants only in places that reflect the racial makeup of the general population (or is it the state’s general population, or the county’s general population)?   Should they try to develop and market products with possibly negative environmental effects so that those buying them reflect a predetermined racial makeup?  Conversely, is it important for facilities and products that are positive environmentally to be developed and marketed only if it is ascertained that they will enjoyed equally by all racial and ethnic groups?

Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant (I will say “defendant” even though the regulated entity might not be in litigation) proves that there was no discriminatory motive. If a policy or procedure or product results in a disproportion of some sort, then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing—to the satisfaction of a judge or jury or bureaucrat who may know or care nothing of the defendant’s needs—some degree of “necessity” for the policy or product.

Now, suppose that you are a potential defendant and that you have some non-discriminatory selection criterion that has helped you run your business well, but the criterion has a disparate impact on some racial or ethnic group. You know you are vulnerable to a lawsuit, which you may or may not win, depending on the judge or jury or bureaucrat you draw, and you know that lawsuits are expensive and arguments with federal bureaucrats undesirable, win or lose. If you don’t want to get sued or hassled—and who does?—the potential of a disparate-impact complaint is going to push you to do one of several things, none of which is good. You might keep the criterion but apply it in a way that gets your numbers right: In other words, you will adopt surreptitious quotas. Or you might get rid of the criterion altogether, and just accept the fact that your business will not be run quite as well as it could be. Or you might decide to replace the old criterion with a new one, which you will choose and/or apply in a race-conscious way. You might, that is, now choose a criterion because of the racial outcomes that will result, or choose some criterion that can be applied in a biased way so that the resulting racial double standard will ensure that the numbers come out right. No matter what, you are no longer using the criterion you freely chose because you thought it to be the best, but are instead weighing race—directly or indirectly—in what you do.

In other words, in many contexts, you’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin. In addition to this moral dilemma, there is this overwhelming practical one: There is probably no selection or sorting or siting criterion that does not have a disparate impact on some group or subgroup.

Mr. Chairman, let me add here the most fundamental point of all, although it doesn’t directly apply in the environmental context: If a business, agency, or school has standards that aren't being met by individuals in some racial or ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That’s what racial preferences do. Second, the government or aggrieved private party can attack the standards themselves. That’s what the disparate-impact approach to enforcement does. Third, one can examine the underlying reason why a disproportionate number of individuals in some groups aren't meeting the standards—such as failing public schools or being born out of wedlock—and do something about that. But this option holds little interest on the political left.

Having made that aside, let’s get down to some nitty-gritty questions that the disparate-impact approach raises here.

What should decisionmakers do if a practice has a disparate impact in one location but not in another? It is astonishing to interpret a national civil-rights statute in a way that makes conduct in one city illegal while allowing exactly the same conduct in another city, just because of the different racial makeup of the two cities. Or suppose the impact ebbs and flows over time, as people move in and out of a neighborhood? And what if a policy has an unfavorable disparate impact in some respects on a particular race, but a favorable disparate impact in other respects on those who are predominately of that same race?  That is, what if a siting decision means more pollution—but also more jobs? This kind of problem—that is, a challenged policy having both good and bad results for a racial minority group—was at issue in the Fair Housing Act case recently before the Supreme Court and decided last June (see my law journal article cited in the appendix).

And what if a practice is favorable for some racial minority groups (say, Asian Americans) but not for others (say, Latinos)—and, what’s more, the opposite is at the same time true for some minority subgroups (e.g., the practice is unfavorable for Hmong but favorable for Asian Americans more broadly)?   And remember, too, that “majority” groups must be able to bring these lawsuits and claim these protections, too, or you’ve added an even greater equal-protection problem.

One final point:  It’s frequently asserted that we must use the disparate-impact approach because actual discrimination—disparate treatment—is difficult to prove. Indeed, this is the principal justification for the disparate-impact approach. But this is simply not true: I have little doubt that the overwhelming majority of civil-rights cases brought and won by the federal government are disparate-treatment cases, as anyone who reads the government’s press releases every day (as we do at the Center for Equal Opportunity) can attest.  (And it’s odd for the government to argue for redefining an offense to make it easier to prove. It’s as if the government were to say that, because it is hard for us to prove arson, we are going to make it a crime if you allow a building you own to burn down—even if you can prove that the building burned down by accident—since that way all we have to prove is that you owned the building and it did burn down, and that’s easy.)

Conclusion

There are serious environmental issues, but nothing is gained by looking at them through the disparate-impact lens of race, and the price of encouraging race-based decisionmaking is an unacceptable one.

Thank you very much, Mr. Chairman, for the opportunity to testify today.  I would be happy to try to answer any questions the Commission has.