Nobody did this to you, environmental activists. You did it to yourselves.
J oe Biden took office amid a moral panic. A creed succinctly summarized by one of its most culturally celebrated champions, Ibram X. Kendi, had overtaken the progressive activist class: “The only remedy to racist discrimination is antiracist discrimination.” The Biden administration put that supposition into practice when it resolved to embed “issues of racial equity into everything it does.” Practically, that ethos prescribed a campaign of positive racial discrimination.
That was the backward logic that led Biden’s Small Business Administration to reserve taxpayer-funded Covid-related relief for racial minorities, a subvention of the 14th Amendment’s Equal Protection Clause that was swiftly rebuked by the courts. It was also the rationale for Biden’s “Justice40” initiative, a program that directed federal agencies to earmark 40 percent of the “benefits” associated with the president’s climate change agenda for “disadvantaged communities” as determined by something they called the Climate & Economic Justice Screening Tool. Eventually, more than 500 programs administered by 16 agencies were covered by this framework. Its backers understood, however, that the blending of environmental protection and anti-racism lacked clear statutory authority, and the program would prove ephemeral unless the Biden team found one.
Biden’s entrepreneurial legal minds thought they had found it in the Civil Rights Act’s Title VI, which prohibits racial, ethnic, or creedal discrimination and has been interpreted by courts to bar initiatives that have a “disparate impact” on certain communities. That — in concert with a federal judge’s ruling in 2020 that compelled the Environmental Protection Agency to conduct timelier investigations into allegations of civil rights complaints 00 gave way to the Biden administration’s “environmental justice” program.
In 2021, Biden’s EPA announced that it would use “affirmative authority” to ensure that the recipients of federal funds were complying with Title VI. The following year, the agency established its environmental-justice and civil rights office, combining an existing environmental-justice office with other smaller initiatives and putting “the expanded environmental justice office on equal footing with the E.P.A.’s national offices of air, water and chemical pollution,” according to the New York Times. In other words, the EPA would henceforth regard mitigating racial discrimination as one of its core functions.
The office’s mission from the outset was to review environmental rulemaking with an eye toward racial equity, a focus that often led it to block policies and projects that were believed to impose unequal burdens on American minorities regardless of the intent of those policies or projects. But as Roger Clegg, former president and general counsel of the Center for Equal Opportunity, wrote in these pages at the outside of Donald Trump’s first term, “disparate impact” is a formula for administrative caprice. In the Biden years, Republican governors witnessed the disparate impact that “disparate impact” had imposed on their constituents, and they objected.
In April of last year, 23 Republican state attorneys general — led by Florida AG (now senator) Ashley Moody — petitioned the EPA to halt what they alleged was a program of “racial engineering.” The agency’s effort to expand its environmental remit to include extirpating the intractable evil of racial animus from American hearts had produced its own set of abominable injustices. “Because the EPA’s regulations prohibit any action that results in racial disparities, a funding recipient must set demographic targets for their projects to maintain compliance,” the letter from the attorneys general read. “This kind of allocation based on group membership is a constitutional nonstarter.”
The Biden administration failed to heed the warning, but it proved prescient. Early last year, a federal district court stopped an EPA effort challenging Louisiana’s permitting authority in parishes along the Mississippi River that some have called “cancer alley,” a moniker derived from the assertion that nearby petrochemical processing facilities contribute to high rates of chronic disease among its mostly minority residents. But the state sued on the grounds that the EPA had exceeded its bounds.
Not only had the agency overinterpreted the authority in Title VI, Baton Rouge argued, it had also ignored the Supreme Court’s interpretation of it to bar only demonstrably intentional discrimination. In the process, the EPA subverted the Civil Rights Act’s original intent. In a preliminary injunction, Judge James Cain agreed. After all, “pollution does not discriminate” and “if a decision maker has to consider race, to decide [on enforcement] it has indeed participated in racism.”
That injunction was made permanent in August of last year, but the EPA had already closed the complaints it brought against Louisiana amid what the left-wing activist press deemed “GOP pressure” (e.g., a lawsuit). But those who supported the EPA’s radical interpretation of its statutory authority didn’t understand why the agency pulled back.
“I think the reason EPA’s Title VI program is so hamstrung is because it is so directly butting up against corporate interests,” one criminal defense attorney told the Grist. The Center for Public Integrity speculated that the agency’s “about-face” was fueled by its administrator’s fear that inviting the Supreme Court’s scrutiny of its actions would end up “decimating Title VI.” All this speculation seems designed to avoid the obvious conclusion: The EPA found itself on the wrong side of the courts because it found itself on the wrong side of the law.
The Trump administration is composing a fitting coda to this ugly saga. This week, the Wall Street Journal reported that the White House will place more than 100 employees of the EPA’s environmental-justice and civil rights office on administrative leave — a potential prelude to the reorganization of the agency in line with the pre-Biden status quo ante. And yet, even today, advocates of the agency’s anti-racism initiatives don’t seem to understand the arguments their opponents are making.
“The people who suffer are the ones who want to drink clean water and breathe clean air,” the environmental activist Michelle Roos told the Journal. That is speculative. What is certain, however, is that the Americans who don’t want their government to encourage unconstitutional racial discrimination so long as it’s the right kind of racial discrimination will welcome the Trump administration’s plan.
“We feel terrorized,” complained one of the EPA personnel facing pressure to vacate their roles. Well, just imagine how the rest of us felt laboring under a government that believed it had the license to force the public to engage in racial bigotry and favoritism. If Americans are forced to choose between what the Left’s activists insist are critical environmental remediation projects and the American social compact’s egalitarian mission, they will choose the latter. Nobody did this to you, environmental activists. You did it to yourselves.