Remedying Environmental Racism

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities.

This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of hazardous waste sites upon minorities and suggests causes of that disproportionality. Part II examines the current federal and state legislation regulating hazardous waste siting. It determines that state hazardous waste management programs fail to address possible “environmental racism.” Part III discusses the potential for using section 1983 of the Civil Rights Act of 1866 and the Equal Protection Clause of the Fourteenth Amendment to challenge a state’s ability to site facilities that will disparately burden minorities. It argues that in cases where flagrant disparities exist between the environmental burden imposed on minority communities relative to white communities, a constitutional remedy may be successful. Part III, however, concludes that this remedy is insufficient because most plaintiffs will not be able to prove that a state harbored discriminatory purpose, and therefore will not prevail under section 1983 or the Fourteenth Amendment. Part IV proposes a potential Act of Congress, patterned after a provision of the Civil Rights Act of 1990, in conjunction with an amendment to current federal legislation and model state legislation, to ameliorate the disparate burden of hazardous waste siting on minorities.