Dante’s Alighieri’s epic poem the Divine Comedy begins with the journey of the author and his guide Virgil down through the depths of Hell. Early in their trek, Dante finds the phrase “Abandon All Hope Ye That Enter” inscribed above the gates of Hell. Drawing on this classic work, the article analogizes Dante’s passage through Hell with the experience of communities relying on civil rights law to address the disparate racial effects of environmental decisions. The article begins with an examination of the first administrative complaint filed with the Environmental Protection Agency alleging racial discrimination in environmental permitting in 1992 which is still “under investigation.” The article then reviews the span of unsuccessful federal court challenges to environmental decisions under the Equal Protection Clause of the United States Constitution and Title VI of the Civil Rights Act of 1964. In an effort to understand the consistent failure of these “environmental racism” claims in the federal courts, the article chronicles the development of equal protection jurisprudence and other antidiscrimination law since the 1960s that supported the courts’ rejection of these claims. Using three complementary perspectives on the Court’s equal protection doctrine, the article shows the theoretical basis for federal courts’ resistance to claims of racial discrimination in environmental decision making; absent evidence of racial animus by public officials racial disparities do not implicate the equal protection clause in matters otherwise governed by market dynamics. As a historical complement to the legal perspective offered, the article reflects on the concerns raised by Dr. Martin Luther King Jr. before his assassination that some forms of racial bias prominent in northern cities remained unabated despite civil rights legislation. Today, intractable racial segregation in housing and education remain as reminders that civil rights laws were embraced as a popular means to eliminate the overt de jure segregation of the South but necessarily not the covert de facto segregation of the North. Because the basis of environmental injustice claims typically correspond to the latter and not the former, the article contends that America’s antidiscrimination laws serve as an ineffective weapon to challenge the disparate racial effects of environmental decisions.
- equal protection,
- environmental justice,
- Title VI,
Available at: http://works.bepress.com/carlton_waterhouse/2/