Abstract

Excerpted From: Jack Jones, Defending Race-Conscious Policy: New York State's Criteria for Identifying Disadvantaged Communities, 49 Columbia Journal of Environmental Law 425 (2024) (242 Footnotes) (Full Document)

New York's Climate Leadership and Community Protection Act (CLCPA), enacted in 2019, is an ambitious effort to reduce statewide greenhouse gas (GHG) emissions and to invest in climate resiliency measures. It also promises to address the heightened vulnerability that climate change causes and will cause for “disadvantaged communities” (DACs)--communities that suffer from a lack of economic opportunities and from environmental burdens--by prioritizing investments in these communities. The CLCPA requires state agencies to consider impacts on DACs when making decisions, and proposes targets for investments in DACs in a range of areas that the state has historically underfunded in such communities.

This approach reflects the goals of what is often called the “environmental justice” movement, which aims to rectify the disproportionate burden of environmental harms that falls on low-income communities of color. The environmental justice movement emerged in the 1980s as a response to “environmental racism,” or the disproportionate siting of environmental pollution burdens in and near communities of color. The CLCPA's legislative findings align with the environmental justice movement's analysis, insofar as they acknowledge that disadvantaged communities “bear environmental and socioeconomic burdens as well as legacies of racial and ethnic discrimination.”

Although the CLCPA introduces the term “disadvantaged communities,” it does not offer a definition that identifies specific communities. Instead, it created the Climate Justice Working Group (CJWG), composed of state officials and representatives from environmental justice communities, and tasked the CJWG with developing criteria to identify DACs. Following the CLCPA's directive to identify DACs based partly on whether communities contain “members of groups that have historically experienced discrimination on the basis of race or ethnicity,” the CJWG developed criteria that include racial and ethnic demographic data.

While this decision reflects the CLCPA's mission to address environmental injustices that most significantly impact low-income people of color, it also creates potential constitutional issues. The Equal Protection Clause of the Fourteenth Amendment to the U.S Constitution requires that no State “deny to any person within its jurisdiction the equal protection of the laws.” While the amendment was initially passed to protect recently-emancipated Black Americans after the abolishment of American slavery, equal protection arguments have increasingly been used in recent decades as a basis to challenge race-conscious government programs that attempt to address racial inequality by prioritizing non-White groups for benefits or opportunities, commonly known as “affirmative action” programs. The CJWG's criteria may face a challenge along these lines, arguing that the New York State government is discriminating on the basis of race in violation of the Equal Protection Clause.

Part II of this Note discusses the details of the CLCPA's commitments to DACs and the CJWG's methodology for determining which communities will be designated “disadvantaged,” and briefly mentions two laws passed after the CLCPA that rely on the DAC designations for their implementation. It then compares the CJWG's DAC methodology to a similar effort by the Biden administration. Part III outlines the relevant jurisprudence regarding race-based classifications under the equal protection doctrine. Finally, Part IV describes how a hypothetical challenge to the CJWG's use of racial and ethnic demographic data in the DAC criteria might be articulated, and discusses how the New York State government can best counter such a challenge.

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In the past fifty years, the Supreme Court has dramatically narrowed the field in which the government can consider race and ethnicity in crafting policy. However, there remain viable approaches to crafting race-conscious policy that can withstand strict scrutiny.

While the decision to use racial and ethnic demographic data as indicators in the DAC criteria may make the CLCPA vulnerable to a constitutional challenge, the New York State government can offer a robust defense of its decision at each stage of legal inquiry. This defense would also reflect the ultimate goals of the CLCPA, in recognizing harms that the state has done to low-income communities of color through racial discrimination and through the disproportionate distribution of environmental burdens.

The CLCPA made New York State a leader in fighting climate change and in addressing the legacies of state-sponsored discrimination against low-income communities and communities of color. The model created by New York may be legally vulnerable under a strict and context-insensitive formulation of equal protection doctrine, but it represents a significant step towards a governmental acknowledgement of the massive scale and impacts of hundreds of years of racially discriminatory policies, coupled with a framework and legal obligations for beginning to address those impacts. While a ruling that the state may not consider race in its DAC criteria might not fundamentally alter the CLCPA's implementation, it would be a significant setback for race-conscious government programs that aim to address the long-term effects of state complicity in structural racism.

J.D., Columbia Law School, 2024; B.A., Cornell University, 2018.