Energy & Environment

'Environmental Justice' Is Guaranteed Employment for Government Lawyers

Based in divisive identitarianism, the DOJ’s new strategy is a recipe for expanded authority and conflict.


So far as government officials are concerned, there's no authority like amorphous authority. Even better when that amorphous authority is wielded against ill-defined crimes, so that the powers-that-be have carte blanche to ruin the day of whoever draws their attention. That's what we're looking at with the Department of Justice's new Office of Environmental Justice, which enacts a racialized vision of law and, importantly, hands officialdom a free hand in the process.

"The Justice Department has three essential responsibilities: upholding the rule of law, keeping our country safe, and protecting civil rights. Seeking and securing justice for communities that are disproportionately burdened by environmental harms is a task demanded by all three of those responsibilities," Attorney General Merrick Garland insisted last week as he introduced the Justice Department's new Office of Environmental Justice and its underlying strategy.

"The burdens of environmental pollution have long been borne disproportionately by members of minority, tribal and low-income communities," added Associate Attorney General Vanita Gupta, who signed off on the memo formalizing the strategy. "No American should have to live, work or send their kids to school in a neighborhood that carries a disproportionate share of environmental hazards."

One might think that it's the hazards themselves that pose the problem, not the identities of the people on the receiving end, but the Justice Department memo emphasizes a focus on "underserved communities that have been historically marginalized and overburdened, including low-income communities, communities of color, and Tribal and Indigenous communities."

In fact, "environmental justice" isn't a term invented by the Biden administration, it's a decades-old school of thought that seeks to graft identitarian politics onto environmental concerns. That allows practitioners to wield civil rights law in addition to traditional environmental laws against perceived malefactors. It also makes it possible to slam offenders as "bigots" if their actions affect one community more than another.

"Despite the policy successes of the traditional environmental movement in the United States, including the Clean Air Act (1963), Clean Water Act (1972), conservancy programs like establishing National Parks, and the establishment of the EPA (1970), it has become increasingly clear that some people and communities are better protected by environmental regulations than others. Research revealing the whiteness of the environmental community elevated concerns that social justice and racial justice were not prioritized in mainstream environmentalism," according to A User's Guide to Environmental Justice: Theory, Policy, & Practice, published last year by the Northeastern University School of Public Policy and Urban Affairs. "Applying the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin…frontline communities and others began to use the term 'environmental racism' to focus on the unequal (social and spatial) distribution of environmental burdens."

That's not exactly a subtle way of addressing the inevitable byproducts of industrial civilization. Debates as to whether agricultural effluent is acceptable or excessive are contentious enough without throwing in accusations of racism. Even many people who share concerns about the environment see appending such a tendentious conception of "justice" to the issue as a step too far.

"The movement has grown, and maintained internal harmony, through a blend of inclusiveness and ideological appeals that derails discussion of priorities and trade-offs," cautioned the Brookings Institution's Christopher H. Foreman, Jr. back in 1996. "The movement presumes that any person of color voicing any environmental-related anxiety or aspiration represents a genuine environmental justice problem. Indeed, a broader redistributive and cultural agenda, as well as a profound discomfort with industrial capitalism generally, lurks just behind the concerns over unequal pollution impacts."

Foreman, who was also a professor at the University of Maryland's School of Public Policy, later wrote a critical book about the environmental justice movement and in 2002 told the United States Commission on Civil Rights that "most of what are regarded as local environmental justice issues are, in fact, simply 'not-in-my-backyard' (NIMBY) disputes in which some version of racial or ethnic politics has arisen."

But we live in a moment in which politics based on race and other group identities have risen to the forefront. Yale Law School's Amy Chua argued in her 2018 book, Political Tribes, that the country is being torn apart by an obsessive focus on group affiliations: "Once identity politics gains momentum, it inevitably subdivides, giving rise to ever-proliferating group identities demanding recognition."

So, it's the perfect time for the government to enact an "environmental justice" strategy that caters to ever-proliferating group identities and the claims by their advocates of disproportionate harms. Allegations of disparate impact then become the focus of law-enforcement efforts to the exclusion of assessing the necessary tradeoffs involved in the byproducts of industry, agriculture, and overall modern civilization. 

And if the unequal impact of a hazard is a separate concern from the hazard itself, there's really no reason that a group-identity conception of "justice" can't be appended to the federal government's other responsibilities. Financial activity, criminal or otherwise, would seem a natural fit for Justice Department lawyers seeking out "communities that are disproportionately burdened" in Merrick Garland's words. The government's prosecution of "redlining" could easily be folded into an office that would parallel environmental efforts in the economic arena.

Which is why the environmental justice strategy looks an awful lot like a guarantee of full employment for Justice Department attorneys. Adding identitarian politics to every existing area of responsibility manufactures a whole new range of concerns for government officials in the form of communities suffering greater ill-effects than their neighbors from one activity or another. That means an amorphous extension of power to go after ill-defined new transgressions created from a merger of existing crimes with an innovative and open-ended legal theory.

All of this done without a vote in Congress, of course.

Based as it is in a divisive identitarian view of human activity, environmental justice is an unlikely vehicle for balancing the competing concerns involved in protecting the environment. But it should effectively keep government officials busy, and Americans at each other's throats.