Shifting the Burden: Potential Applicability of Bush v. Gore to Hazardous Waste Facility Siting

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.