The Ninth Circuit Court of Appeals decision in Center for Community Action and Environmental Justice v Federal Aviation Administration reads like an ordinary environmental review decision. The issue was whether the agency took the required “hard look” at the potential environmental impacts and the court said that it did. It is the dissent that should catch the eye of developers and practitioners. The dissenting opinion of Judge Rawlinson begins by stating “This case reeks of environmental racism.”
Judge Rawlinson argues that minorities bear a disproportionate burden from pollution emitting facilities and the location of this project, in a community that is primarily minority, should be analyzed from the perspective of environmental racism. Judge Rawlinson has a lot of trouble making the environmental justice argument into an environmental review argument. Nevertheless, he starts his environmental review discussion with environmental justice/racism issues and ends his argument the same way.
It is difficult to see where environmental justice issues fit into the environmental review process and Judge Rawlinson did not articulate that argument very well. My sense, however, is that we will see this argument more in the future.