Golden Gate University Environmental Law Journal
This Comment focuses on two main issues: environmental justice's procedural limitations following Alexander v. Sandoval, and the loopholes within existing environmental legislation as they apply to military activities. In this respect, Richard Armour's famous idiom "hindsight is 20/20" is telling. As long as the military has carte blanche to ignore environmental laws, environmental justice will continue to remain a legal mirage beholden to the government's pecking order of judicial deference. Vague notions of national security and deference to the military wrinkle the fabric of environmental laws that are intended to create safe and healthy communities. Legislators must close loopholes in environmental laws, codify the Order, and explicitly create a private cause of action for disparate-impact plaintiffs so that environmental justice can finally be achieved.
Subpart A of the Argument describes existing military exceptions from environmental laws. Of particular concern is the military's invocation of "national security" to opt out of environmental laws. Despite congressional intent to limit national security waivers to exceptional and emergency contexts, courts interpret security needs broadly. Subpart A also highlights the concern for environmental justice proponents when faced with national security waivers. Subpart B examines the procedural limitations that environmental justice advocates experience through the National Environmental Policy Act (NEPA). Then, Subpart C discusses why super-deference to the military under the Administrative Procedure Act (APA) is of particular concern to environmental justice proponents. Subpart D focuses on Alexander v. Sandoval, a Supreme Court case that limited private causes of action for disparate-impact claims. Following Alexander v. Sandoval, there are three ways for communities to fight environmental justice. First, communities facing disproportionate environmental hazards must prove that the government intentionally discriminated against them. Second, claimants may seek redress through Title VI's administrative review process. However, because intentional discrimination is so difficult to prove and Title VI's administrative review process rarely results in a finding for the claimants, these options are inadequate. Third, claimants may seek alternatives to the court and administrative systems to combat disparate impacts of environmental hazards facing their communities. Finally, Subpart E discusses these alternatives, which include avoiding "lawyer-centered" models by advocating grassroots activism and community partnerships with the military.
An Unfulfilled Promise: How National Security Deference Erodes Environmental Justice, 8 Golden Gate U. Envtl. L.J. 81