Private Law Theory

ABSTRACT
For too long, minority communities have been forced to accept the consequences of living near landfills, hazardous waste sites, industrial facilities, contaminated water sources, and other locally undesirable land uses at higher rates than nonminority communities. Many environmental justice advocates hope for expanded availability of the disparate impact theory under Title VI of the Civil Rights Act of 1964 to remedy these injustices because the disparate impact theory does not require a showing of discriminatory intent. The disparate impact theory, however, is ill suited for the environmental racism context, and litigants face difficulty satisfying its requirements. Instead, courts should adopt a broader understanding of discriminatory intent using the foreseeability test originally proposed by Justice Thurgood Marshall. This test, which would allow plaintiffs to make a prima facie case of discriminatory intent when they can show the foreseeability of a disparate impact, would allow for a more comprehensive understanding of discrimination.

Kirsten Williams, The Impact of Foresight: Reframing Discriminatory Intent to Properly Remedy Environmental Racism (2022) 59 Houston Law Review (5) (23 May).

First posted 2022-07-01 11:30:13