How to Craft an Environmental Justice Law That Will Withstand Strict Scrutiny
In the fall of 2020, New Jersey passed the Environmental Justice Act, which established new permitting requirements for certain types of industrial facilities located in overburdened communities. The purpose of the law is meant to protect those communities who have historically bore the brunt of the state’s environmental health stressors. Since the law utilizes minority status (which includes race) in its definition of overburdened communities, it is possible that challenges to the law’s constitutionality could arise.
This Note seeks to argue that such classifications are constitutional, while also encouraging other states to tackle their environmental justice issues in a similar way to that of New Jersey. Although New Jersey’s new environmental justice law uses minority status to classify what an overburdened community is, it is not the sole factor. But in order for there to be environmental justice, the state must consider minority status in its classifications of overburdened communities. Both state and federal Supreme Court precedent support the use of minority status in conjunction with race-neutral factors, to protect the rights of marginalized communities. The law’s constitutionality, therefore, would allow other states to address environmental inequity in a similar fashion.