Changing the Bathwater and Keeping the Baby: Exploring New Ways of Evaluating Intent in Environmental Discrimination Cases

48 Pages Posted: 1 Mar 2007

See all articles by Browne C. Lewis

Browne C. Lewis

Cleveland State University, Cleveland-Marshall College of Law

Abstract

Minorities in the United States live in areas that are heavily polluted. In addition to dealing with the pollution generated by their neighborhoods, minorities often are exposed to environmental hazards that provide services for the entire community. The problem of the disproportionate placement of environmental hazards in minority communities is well documented. A primary cause of the inequitable distribution of environmental hazards in this country is environmental discrimination based on class and race.

Persons combating environmental discrimination have attempted to get relief relying upon the Equal Protection Clause of the Fourteenth Amendment. Unfortunately, plaintiffs in environmental discrimination cases have hit a brick wall - the requirement that they prove the decision to place the environmental hazard in their neighborhood was motivated by an intent to discriminate on the part of the decision-makers. In response, advocates have proposed replacing intent as the evidentiary requirement in Equal Protection cases. If properly applied, the intent requirement is a perfectly viable evidentiary method. Therefore, I propose keeping the intent requirement and changing the manner in which the courts determine if the plaintiffs have satisfied the requirement. The courts should presume intent if the plaintiffs are able to demonstrate that the decision to place the environmental hazard in their neighborhood was unreasonable.

Keywords: Environmental, Discrimination, Environmental Justice, Civil Rights, Equal Protection

JEL Classification: K10, K19, K30, K32

Suggested Citation

Lewis, Browne C., Changing the Bathwater and Keeping the Baby: Exploring New Ways of Evaluating Intent in Environmental Discrimination Cases. Saint Louis University Public Law Review, Vol. 50, p. 469, Winter 2006, Available at SSRN: https://ssrn.com/abstract=966316

Browne C. Lewis (Contact Author)

Cleveland State University, Cleveland-Marshall College of Law ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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