SHIFTING THE BURDEN: POTENTIAL APPLICABILITY OF BUSH V. GORE TO HAZARDOUS WASTE FACILITY SITING

Boston College Environmental Affairs Law Review, 2006 by Hickey, Alison E

Abstract:

Since its inception in the 1980s, advocates of the environmental justice movement have attempted to remedy the disproportionate siting of hazardous waste facilities in minority neighborhoods by employing the Equal Protection Clause. These lawsuits have thus far been largely unsuccessful because of litigants' inability to prove intentional discrimination by government actors in such siting decisions. However, in the 2000 decision issued by the U.S. Supreme Court in Bush v. Gore, the mere potential for discriminate impact of a decision made by government actors was sufficient to trigger a strict scrutiny analysis under the Equal Protection Clause. While the decision was declared to have little precedential value outside the voting rights context, this Note examines the potential for application of this novel approach to the Equal Protection Clause in future environmental justice claims arising under the Fourteenth Amendment.

INTRODUCTION

On the morning of December 12, 2000, Americans waited in anticipation for the U.S. Supreme Court to issue its opinion in Bush v. Gore.1 Under immense time pressure, the Court issued a controversial opinion specifically delineated as having no precedential value beyond the boundaries of the case.2 The ruling, which redefined long-held precedent regarding the application of the Fourteenth Amendment's Equal Protection Clause to the U.S. Constitution, upheld the election of George W. Bush as the President of the United States.3

Many constitutional scholars contend that it would be naive to expect the Supreme Court to begin applying this method of equal protection analysis-whereby proof of potentially discriminate impact of government actions is sufficient to trigger strict scrutiny-to future litigation arising under the Equal Protection Clause, because the Court has steadfastly applied a different standard for nearly twenty years.4 However, the Court's willingness to depart from its own wellestablished standards in Bush created new hope for plaintiffs who have been unable to prevail on equal protection claims because of an inability to prove the intentional discrimination necessary to trigger strict scrutiny.5

The dilemma of proving intentional discrimination has been a major roadblock to the environmental justice (EJ) movement,6 which was brought to national attention as the result of vocal opposition to hazardous waste facility siting in minority neighborhoods in the early 1980s.7 The movement, however, could face renewed hope if EJ proponents can successfully use the Bush brand of Equal Protection analysis as a viable argument for burden shifting. Although many scholars and constitutional advocates believe that the Bush opinion was motivated more by politics than by the Constitution,8 the constitutional system trusts the Supreme Court Justices to put aside their individual political beliefs for the sake of constitutional uniformity.9 Thus, the reasoning of the Bush decision, though claimed to have no precedential value, cannot be held meaningless.10 Rather, the reasoning could affect future equal protection litigation for EJ advocates.11

This Note focuses on the difficulty EJ advocates face when litigating racial discrimination claims related to the siting of hazardous waste facilities. Objective data illustrating the discriminatory impact of government actions supports the racially discriminatory effect of siting decisions.12 Nevertheless, courts have continuously refused to apply a strict scrutiny analysis to siting decisions.13 If the equal protection analysis of Bush becomes precedent for future racial discrimination cases, its application to EJ litigation would mirror that used by lower courts in other areas of the law over the past thirty years. Part I of this Note examines the history and evolution of the modern EJ Movement. Part II discusses the barrier EJ plaintiffs face in proving intentional discrimination by government actors in hazardous waste facility siting decisions. Part III examines the Bush decision in depth and draws an analytical link between Bush and the EJ movement. The conclusion argues that while Bush has yet to be directly applied outside of the voting rights context-and even has limited applicability within voting rights-its holding leaves room for a novel approach to EJ litigation and renews hope for the burden shifting potential of equal protection for EJ litigants.

I. THE ENVIRONMENTAL JUSTICE MOVEMENT

A. Warren County, North Carolina

In 1978, more than 30,000 gallons of oil laced with polychlorinated biphenyl (PCB), a toxin, were covertly dumped along a 210-mile stretch of North Carolina's roadways, contaminating the roadside soil.14 Four years later, North Carolina Governor James B. Hunt made an executive decision to construct a PCB landfill in Warren County to bury the nearly 32,000 cubic yards of contaminated soil.15 Warren County is one of the poorest counties of North Carolina, comprised of an eighty-four percent minority population.16 Civil Rights activists, political leaders, and local residents came together to protest the construction of the proposed PCB landfill, bringing national attention to the race- and class-based inequities of hazardous waste facility siting, and launching the modern EJ movement.17 More than five hundred protesters were arrested, but their efforts were not futile.18 The protests prompted Congressman Walter E. Fauntroy-an active participant in the protests-to initiate a study of hazardous waste facility siting in the South by the U.S. General Accounting Office (GAO).19 The study, along with its successors, have objectively demonstrated that an overwhelming percentage of hazardous waste facilities havebeen, and continue to be, sited in minority and low-income communities.20 While the findings of such studies have yet to compel judicial remediation, recent developments in Equal Protection Clause jurisprudence may provide new hope.21