Mapping Environmental Justice

Minnesota Law Review Vols. 106:2 onward (2021-present) Minnesota Law Review Vols. 106:2 onward (2021-present)

Article 2

Mapping Environmental Justice Mapping Environmental Justice

Dave Owen [email protected]

Gaby Salazar Kitner

Owen and Kitner: Mapping Environmental Justice

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For decades, environmental justice activists have struggled to find legal fixes for the environmental burdens that poor communities and people of color often face. In recent years, government agencies, academic researchers, and activists have developed an innovative new approach: computer-based environmental justice mapping (EJ-mapping) applications. Dozens of these applications have emerged, and, in some circles, enthusiasm is widespread. The applicationsÊ proponents argue that they can be „game changers‰ for environmental justice, and the applications now help determine regulatory obligations and distribute billions of dollars in funding. But the emergence of EJmapping also raises questions about whether computer-driven decisions can achieve equity, how variables like race should be factored into the applications, and if government and private actors will embrace these new technologies. More broadly, the emergence of EJ-mapping brings to a new setting recurring and difficult questions about technology, social justice, and law.

This Article addresses those questions by exploring how courts and government agencies are using, or responding to, these mapping applications. More broadly, it considers how these applications are becoming part of the architecture of

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environmental law. Our findings are mixed. We find growing influence and intriguing potential alongside controversy, legal vulnerabilities, reluctance to bring new technologies into old ways of doing things, and outright backlash. We also find that mapping applications can only take steps toward achieving contested visions of environmental justice, with some of the most difficult questions raised but unresolved. And we offer recommendations for future use of mapping applications.

TABLE OF CONTENTS

Introduction ........................................................................... 1772 I. The Rise of EJ-Maps ......................................................... 1783 A. A Geography-Based Movement ............................... 1783 B. The Emergence of EJ-Mapping Applications ......... 1790 C. Concerns ................................................................... 1798 1. Algorithms, Models, and Equity ......................... 1799 2. Mapping Race ...................................................... 1802 3. Inertia .................................................................. 1805 II. EJ-mapping in Practice ................................................... 1806 A. Politically Conservative States ................................ 1808 B. Allocating Funding ................................................... 1811 C. Regulatory Uses ....................................................... 1815 1. Environmental Impact Review ........................... 1816 2. Air Quality Regulation ........................................ 1825 3. Land Use Planning .............................................. 1829 4. Energy Regulation ............................................... 1832 D. Addressing Race ....................................................... 1835 III. Lessons From EJ-Mapping ............................................ 1838

A. The Role of EJ-Mapping Applications in

Environmental Regulation ...................................... 1838 B. The Role of Race in EJ-Mapping ............................. 1841 C. Beyond the Maps ...................................................... 1846 Conclusion ............................................................................. 1847

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INTRODUCTION

In 2022, a Louisiana trial court issued an environmental jus-

tice decision that turned, in part, on maps. The case, Rise St. James v. Louisiana Department of Environmental Quality, arose out of a multinational chemical companyÊs proposal to build a factory near the Mississippi River, just south of Baton Rouge.1 That part of Louisiana is colloquially known as Cancer Alley, and it has played a central and infamous role in the environmental justice movement.2 Dozens of petrochemical facilities, many built despite the vigorous opposition of local Black communities, line the river, and cancer rates are anomalously high.3 When Formosa Plastics Group sought to build a new complex near the small and predominantly Black communities of Welcome, St. James, and Union,4 activists fought back, ultimately bringing their claims to the Louisiana courts.5 They raised many arguments,6 one of which was that the Louisiana Department of Environmental Quality had first misused and then neglected a mapping application called EJScreen.7

The existence of EJScreen and arguments about its use are both part of larger trends. The environmental justice movement

has long been intertwined with mapping.8 Two of the movementÊs core claims are that poor people and people of color are disproportionately likely to bear the burdens of environmental problems9 and that this basic unfairness should end.10 Environmental justice, therefore, requires understanding a placeÊs geography and demographics, and it requires mapping ways in which people in some places are treated differently from people in others.11 To meaningfully address environmental justice claims, those maps must be complex. Poverty and race are not simple for maps to represent, and burdens borne by things

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environmental justice communities12 are often multiple and intertwined.13 A community might face air pollution, water pollution, poverty, a history of housing and employment discrimination, and non-environmental health problems, among other challenges, and to analyze those challenges in isolation is to miss the point.14 But analyzing them in combination requires a complicated map.

In the last decade, activists, academics, and regulators have increasingly turned to computer-based mapping applications· which this Article calls „EJ-mapping applications‰·to address these challenges. EJScreen, which the U.S. Environmental Protection Agency (EPA) created, is one of many federal tools.15 As of January 2024, thirteen state governments have EJ-mapping applications, and non-governmental organizations have created

applications for several more states.16 Universities also have been involved, sometimes partnering with government agencies and creating their own tools.17 These applications give geographic units·typically census tracts·scores across a variety of environmental, health-based, and socioeconomic metrics.18 They can then combine those scores to produce an aggregate score, or sometimes tiers of aggregate scores, and map the results.19 The idea·as Figure 1 illustrates·is to provide, in a simple color scheme, a map that highlights geographic areas that raise heightened environmental justice concerns.

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Figure 1: CalEnviroScreen Map of the Los Angeles-Long Beach

Area, Southern California.20

Figure 2: CalEnviroScreen Scores for Census Tract

6037294120, Los Angeles21

In some circles, these EJ-mapping applications have generated widespread excitement.22 There are obvious reasons why.

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The applications take data and relationships that were difficult to understand and combine them into user-friendly visual displays. That user friendliness could have practical significance: These applications might help people allocate grants, complete environmental impact analyses, and issue permits in more sensitive and equitable ways.23 More generally, mapping could take the law of environmental justice, which for years has been more aspiration than reality, and help transform it into something that actually works.24 One environmental justice leader has referred to EJ-mapping applications as potential „game changers‰ for the movement,25 and the rapid proliferation of mapping applications reflects this enthusiasm.26 So, too, do calls for additional uses in governmental decision-making.27

But questions also abound. The most obvious concerns come from the second Trump administrationÊs furious backlash against racial- and social-justice initiatives. The first year of the Trump administration brought an unprecedented effort not just to end environmental justice programs·including the federal mapping efforts this Article describes·but also, seemingly, to obliterate the very idea of environmental justice, and of social justice more generally.28 So long as that effort persists, the nuances of EJ-mapping will be meaningless at the federal level. We suspect this is a passing phase; administrations change and

governments cannot indefinitely pretend away the existence of real problems. Some state efforts also will persist even through the Trump administrationÊs onslaught. Still, this Article goes to press at an exceedingly difficult time for environmental justice advocacy.

Questions about EJ-mapping will also arise even where commitments to equity live on. Some fit within a larger set of concerns about computer-based legal decision-making.29 In many settings, critics have worried that such decision-making· which includes, but is not limited to, what are sometimes described as algorithmic decisions·is too often reductionist and biased, with layers of uncertainty, subjective judgment, and outright prejudice concealed beneath deceptively precise statistics and, sometimes, pretty colors.30 Other questions relate to race, the courts, and the United States Constitution. The environmental justice movement emphasizes racial justice, and many advocates and academics argue that one cannot understand environmental justice without focusing on race.31 But if race is a key

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mapping variable, and maps are used to allocate government benefits or regulatory protections, questions will arise about the consistency of EJ-mapping with court decisions, like Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,32 holding that even using race as a contributing factor can render governmental decisions unconstitutional.33 Similarly important, though more mundane, questions address the practicalities of mapping. Will these maps actually be used? By whom, and how, and with what effect? To put the question more broadly, how will EJ-mapping fit into the broader architecture of environmental law?

Even as EJ-maps have proliferated, discussion of many of these questions has been limited, particularly in legal literature.34 And while non-legal literature provides individual examples, and some agency reviews and academic studies have evaluated recent uses of EJ-mapping applications to allocate grants,35 this Article provides a broader and more synthetic analysis of recent practices. By reviewing state and federal court cases and, more importantly, agency documents, we assess the recent, partial, and tenuous emergence of EJ-mapping into

governmental decision-making. We focus on California, which pioneered EJ-mapping and, in stark contrast to the federal government, has seen relatively stable political commitments to environmental protection and social justice.36 We also consider federal government initiatives during the Biden administration. And we discuss New Jersey and, more briefly, New York and Massachusetts, all of which have emphasized using EJ-maps; Michigan, as a state with more centrist politics; and several more politically conservative states, including Louisiana. We do not claim that these examples offer a definitive picture, for EJmaps and their uses both are evolving, and environmental regulation unfolds through a huge diversity of federal, state, local, private, and hybrid programs, of which we could only review samples. Our goal, instead, is to explore EJ-mapsÊ challenges and potential while patterns of practice are forming and the future is still malleable.

Our findings are mixed. In some settings, EJ-mapping has helped facilitate transformational changes in environmental law. But even as some government entities embrace EJ-mapping and have used it to direct billions of dollars in spending, many are ignoring it, and some are actively opposing its use. The opposition has come not just from the Trump administration, but also in more liberal places.37 Indeed, outside of some contexts involving the allocation of grants, understanding of how to build EJ-maps seems to be well ahead of understanding of whether and how to use them in governance. We also find that the greatest promise of EJ-mapping·its ability to reduce complex situations to relatively simple and accessible metrics·sparks criticism.38 That criticism has generated questions about how much maps should be relied on and in what circumstances.39 It also

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has sparked robust debates about map design, which creates the potential for improvements but also the possibility of strategic manipulation·with advocates promoting emphasis on variables that would produce decisions favoring the clienteles they serve.40 Beneath these challenges lie deeper indeterminacies. EJmapping is contested partly because environmental justice itself remains a contested concept.41 People do not agree about how it should be defined or about whether and how it should drive government decision-making,42 and mapping applications can inform but not resolve those basic debates.

But even if EJ-mapping raises thorny questions, we can identify some core principles for its use. First, flawed though they may be, mapping applications are indispensable to environmental lawÊs growing emphasis on targeted government spending. Second, in addition to facilitating spending, these mapping applications should be part of regulatory decision-making, and legislatures and high-level agency officials should specify EJmappingÊs roles, rather than waiting for those roles to emerge through the ad hoc decisions of lower-level officials and private entities. Third, because of their inherent limitations, EJmapping applications should rarely be the basis for final and binding regulatory decisions, but they can be important parts of information portfolios that inform agency actions. More specifically, EJ-maps can establish rebuttable presumptions for special procedural protections or heightened protective standards. And in situations where regulators have no choice but to make decisions quickly, either because time is limited or because actions must be taken in bulk, EJ-maps provide appropriate bases for final decisions. Fourth, and beyond the realm of individual project decisions, EJ-maps can continue helping policymakers and academics identify broad trends. The larger point is that EJmapping is not, and should not be, some ephemeral trend.

Instead, it is now an important, promising, and, inevitably, flawed part of the architecture of environmental law.

This ArticleÊs analysis proceeds as follows. Part I provides general background on the environmental justice movement, explaining briefly its origins and core goals as well as the ways in which those goals turned the movement toward mapping. It then describes the rise and recent proliferation of EJ-mapping applications. Part II describes our research methodology and reports our results. Part III explores implications and offers several recommendations.

I. THE RISE OF EJ-MAPS

Perhaps no policy arena has been as intertwined with mapping as environmental management,43 and that intertwinement has been particularly important for environmental justice. This Part explains how mapping became so central to the environmental justice field. It begins with a brief synopsis of the history and principles of environmental justice,44 explains the central role of mapping in early environmental justice activism and litigation, and then describes the emergence of increasingly sophisticated mapping applications.

The environmental justice movement arose in the 1980s and 1990s, years after mainstream environmentalism had taken the country by storm.45 Historians of the movement trace its origins to several different events, but many agree that a 1982 controversy over a proposed hazardous waste landfill in Warren County, North Carolina, was a particularly seminal moment.46 The Warren County controversy became a focal point for civilrights organizing·the countyÊs population was predominantly

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Black, though opposition to the landfill united people across racial boundaries·and it led to protests, arrests, and national media attention.47 It also generated questions about whether Warren CountyÊs struggle was part of a broader pattern, which led the General Accounting Office and the United Church of Christ to complete studies documenting the heightened prevalence of hazardous waste facilities in communities of color.48 Their studies resonated with the experiences of activists from other parts of the country. Quickly, terms like „environmental racism‰ and „environmental justice‰ became part of the popular lexicon, and a new movement gained shape and force.49

That movement was grounded in several key principles. First, environmental justice advocates argued that the burdens of environmental pollution were disproportionately borne by poor people and people of color·a claim that subsequent empirical research supports.50 Second, advocates connected these

disparate environmental burdens with procedural and political unfairness. They argued that disadvantaged communities were hurt not just by heightened pollution, but also by exclusive political and administrative decision-making processes.51 Third, environmental justice advocates extended this critique to the mainstream environmental movement, which they argued was white, elitist, and insufficiently attentive to disadvantaged communities.52 Fourth, environmental justice advocates pushed for a holistic view of the challenges faced by the communities they supported.53 Rather than looking at an environmental problem as the outcome of a single pollution source, they argued that environmental burdens should be understood as the cumulative products of a broader set of political and economic conditions and that those burdens could not be isolated from the many other stressors facing disadvantaged communities.54 Environmental justice thus was about marrying environmental advocacy with social justice and doing so in a holistic way.

From the start, the movement relied on mapping and statistics. Demonstrating that some communities are treated differently than others requires, as a threshold matter, identifying the geographic unit that counts as the relevant community and the area(s) to which it should be compared.55 Those preliminary

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steps require drawing lines on maps. Making such a demonstration also requires mapping the distribution of relevant environmental problems, like air pollution concentrations or the siting of environmentally harmful facilities. And if the core claim is that some groups of people are treated differently than others, demographic data also must be mapped. Simply placing dots on a map might be enough to show an important disparity, but both academics and litigators quickly turned to more complex methods·often relying on spatially coded statistical analyses to assess whether and to what extent disparities in treatment existed.56

A classic early environmental-justice case·Bean v. Southwestern Waste Management Corp.57·illustrates both the importance of mapping and statistical analysis and some of the associated questions. The case arose when plaintiffs from a predominantly Black suburban area in Houston, Texas tried to oppose the construction of a new landfill.58 The plaintiffsÊ lead attorney asked her then-husband, sociologist Robert Bullard, to analyze siting data, and he found some striking disparities, which the plaintiffs cited as proof of unconstitutional racial discrimination.59 As the court would later summarize,

mapping.63 The court noted that some of the statistical disparities presented by the plaintiffs broke down if the mapping used a different unit of geographic analysis·census tracts instead of quadrants, for example.64 The court further observed that it was unclear what geographic unit was appropriate or whether an even finer-grained geographic analysis might reveal different problems.65 Maps were crucial to motivating the claim and to the courtÊs analysis, but the mapping exercise seemed to raise as many questions as it answered.

Bean has parallels in many other classic environmental justice controversies. In another prominent case, South Camden Citizens in Action v. New Jersey Department of Environmental Protection,66 a community group from Waterfront South, a poor and predominantly Black and Hispanic area in the City of Camden, sought to stop the permitting of a new cement factory in an already heavily industrialized neighborhood.67 The plaintiffs again brought discrimination claims, which they supported with mapping and statistics.68 Some of the mapping and statistics were relatively simple and straightforward; the plaintiffs focused on the demographics of the neighborhood and the prevalence of industrial facilities.69 The plaintiffs also brought in experts to compare the prevalence of health problems in Waterfront South to their prevalence elsewhere in Camden and in New Jersey.70 But to demonstrate disparate impact, they also had to use more complicated methods. Their expert compared numbers of regulated facilities in census tracts with above- and below-average minority populations, finding a significant statewide disparity.71 The expert also found that in the

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Waterfront South area, the disparity was particularly extreme.72 Using these data, the plaintiffs convinced the court that they had made out a prima facie case of unlawful discrimination.73 They ultimately lost their case, but for other reasons; the U.S. Supreme Court determined that EPAÊs implementing regulations for the Civil Rights Act could not confer a private right of action.74 But at least at a preliminary stage of the litigation, their map-based evidentiary claims were successful.75

Cases like Bean and South Camden Citizens in Action illustrated how mapping and statistics could support environmental justice claims.76 Similarly, a growing academic field demonstrated that map-based analyses could test, refine, and, often, validate the broader claims of the environmental justice movement.77 But for people focused on specific actions in specific places, both types of mapping had limitations. The bespoke mapping used by the plaintiffs in South Camden and, earlier, in Bean took extensive time and effort, which could be problematic for a community group with limited resources and a need to act quickly.78 An emphasis on statistically sophisticated mapping also necessitates and empowers technical experts and attorneys·people who can explain or critique the statistics and legal claims are likely to dominate the discussion·and that kind of expert-centered discourse is not what most environmental justice advocates were trying to achieve.79 Academic studies,

meanwhile, could validate basic principles of environmental justice and demonstrate the need for policy reform. But demonstrating that communities of color are disproportionately likely to face environmental burdens is different from demonstrating that a particular community of color is facing heightened burdens; drawing specific conclusions from general themes is a fraught matter.80 To understand the burdens faced by particular communities would, therefore, require mapping that was faster, cheaper, and finer grained.

That mapping also needed to be more holistic. In many disadvantaged communities, the concern isnÊt just that they are disproportionately likely to be the sites of hazardous waste facilities. It is, instead, that the hazardous waste facilitiesÊ impacts are piled on top of other environmental impacts, like, perhaps, the emissions from nearby highways and the fumes from other industrial facilities.81 Not all the environmental impacts are directly related to pollution; disadvantaged communities are often hotter, because of the lack of shade structures and trees,82 and have fewer parks and other environmental amenities.83 All these environmental burdens can overlap with a host of non-environmental stressors, like reduced access to good jobs and credit,84 restrictive zoning policies that cramp mobility and reinforce the

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legacies of de jure racial discrimination,85 employment laws that systematically disfavor low-wage workers,86 disparate public health burdens,87 and many more. A mapping exercise focused narrowly on, say, hazardous waste facility siting would miss much of the story. To be effective instruments of environmental justice, maps needed to do more.88

The nascent tool of EJ-mapping soon evolved, and the evolution began, as environmental initiatives often do, in California.89 In 1999, the state codified a definition of environmental justice, and that definition led state leaders to focus on the role of cumulative impacts.90 This emphasis created a need for a working definition of cumulative impacts, and that definition, in turn, sparked interest in ways to measure and visually represent those impacts.91 In the mid-2000s, legal innovations heightened

this need. The Global Warming Solutions Act of 2006 (often just called „AB 32‰), which was the stateÊs landmark climate-change bill, directed state agencies to „direct public and private investment toward the most disadvantaged communities in California.‰92 That mandate would grow more specific: A later amendment, which addressed the distribution of auction funds from AB 32Ês cap-and-trade program,93 instructed state agencies to „allocate a minimum of [twenty-five] percent of the available moneys in the fund to projects located within the boundaries of, and benefiting individuals living in, [disadvantaged communities].‰94 That meant the state needed some methodology for deciding what counted as a disadvantaged community. Mapping cumulative impacts was a potential way to meet this need, and the effort to create CalEnviroScreen began.

Over many years, California state agency staff, working in partnership with academic researchers, built a novel and innovative mapping application.95 The literature on computer-aided decision-making often criticizes applications developed in insular and opaque processes,96 but this process was different, as have been many of the other efforts to create EJ-mapping applications. CalEnviroScreenÊs developers did extensive community outreach and worked with an „Environmental Justice Advisory

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Committee‰ in developing the application.97 They also worked closely with academic experts.98 In 2013, they rolled out CalEnviroScreen 1.0,99 which, in the years since, has been repeatedly updated.100 The most recent version (as of this writing), CalEnviroScreen 4.0, came out in 2021.101

CalEnviroScreen remains one of the most prominent and influential EJ-mapping applications, but it is now far from alone.102 In 2015, EPA rolled out EJScreen.103 Other federal tools have followed, with the Council on Environmental Quality, the Agency for Toxic Substances and Disease Registry, the Department of Energy, and the Department of Transportation each developing their own tools.104 EPA also tracks the emergence of

state tools, and, by its latest count, mapping applications exist in sixteen states, and some of those states have more than one.105 Other states have explicitly adopted EJScreen as their preferred environmental justice mapper.106 Local governments also have created their own tools, and a 2022 study by the Urban Institute counted a total of thirty-one EJ-mapping applications.107 As with CalEnviroScreen, other EJ-mapping tools have grown out of state-agency collaborations with community advocates and university researchers,108 and some have emerged from outside the government.109

These applications operate in many ways, but they share commonalities. All begin by drawing on databases with information on things like demographics, economic status, public health, and environmental risk factors.110 Those data typically come from a variety of sources, though the applications generally rely on Census Bureau data for their demographic and economic information.111 All also select a basic unit of geographic analysis, with most applications using census tracts.112 Many of the

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applications then give each census tract a relative score for each indicator, with the score typically indicating how the percentage of census tracts within the state (or, for EJScreen, the nation or the state) that have lower scores for that indicator.113 So, for example, a census tract with higher diesel particulate matter levels than ninety-five percent of the census tracts in the state would receive a ninety-five score for diesel particulate matter.114 Some applications, in an attempt to measure cumulative impacts, then aggregate scores into groups so that a tract can receive an overall pollution-burden score115 or aggregate all scores to create a single overall score.116 The final step in the mapping process is to color-code the scores. In CalEnviroScreen, for example, areas with the lowest scores are green, and areas with the highest scores are bright red.117

There are also important differences between applications. In some states, the primary function of the mapping application is to identify communities of concern by measuring burdens other than environmental challenges. MassachusettsÊ mapping application, for example, focuses only on identifying communities that are economically disadvantaged, linguistically isolated, have high minority populations, or some combination of those three.118 The database does not integrate environmental

burdens into its mapping, and the idea appears to be to identify areas where environmental impacts would pile onto existing challenges, not to identify areas where those environmental burdens already are concentrated.119 CalEnviroScreen and its progeny, in contrast, also map and integrate environmental stressors, though users can customize the maps to focus on a subset of factors.120 Likewise, some applications use a simple binary ranking rather than a continuum, and others do not employ ranking systems at all.121 The differences sometimes depend on intended functions. Ranking systems are important for tools used to allocate money, like CalEnviroScreen, but less so for tools, like EJScreen, that are designed just to provide information.122

The proliferation of mapping applications has come alongside widespread enthusiasm about their potential uses.123 One of the most commonly identified uses is to allocate grant funding.124 That funding has always mattered to disadvantaged communities and to environmental law, but its importance exploded (in some ways temporarily) in recent years, with legislation, like the Inflation Reduction Act125 and CaliforniaÊs AB 32,126 and

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policy initiatives, like the Biden administrationÊs Justice40 program,127 creating massive increases in grant funding for environmental justice.128 At the federal level, the so-called Big Beautiful Bill eliminated those initiatives, but state funding programs live on, and similar federal initiatives may someday return.129 Just helping allocate that funding in fair and efficient ways would be a massive contribution, and it is one of the most frequently anticipated uses for mapping applications.

As important as grant allocation may be, the potential for influence is much broader. Agencies and academic experts have also argued that EJ-mapping applications can help agencies conduct environmental reviews, issue (or deny) permits, identify mitigation measures for projects in or near environmental justice areas, and, more generally, facilitate compliance with environmental law.130 Two states·New Jersey and, more recently, New York·have gone further than identifying and encouraging these possible uses. In 2020, New Jersey enacted an environmental justice law that requires proposed projects in environmental justice areas to go through heightened permitting processes, including the preparation of an „environmental justice impact statement.‰131 New YorkÊs similar, and arguably stronger, law became effective at the beginning of 2025.132

Reviewing and permitting are the bread and butter of environmental regulation,133 and, if EJ-maps change when and how these processes take place, they could transform the integration of environmental justice into environmental law.

For the environmental field, the importance of such a transformation is difficult to overstate. Since the 1990s, the idea of environmental justice has exerted a powerful and growing hold on the environmental movement, and many environmental and community groups now identify pursuing environmental justice as a core goal.134 The rhetoric of environmental justice now is also part of governance, though primarily (but not exclusively) in politically liberal areas.135 But for decades, turning that interest into a concrete and impactful body of law has been a struggle. Civil rights litigation rarely succeeded136 and now is more of a threat to environmental justice advocacy than it is a promising strategy.137 Activism under conventional environmental laws has been more successful.138 But that activism leaves unsatisfied the hope for laws that openly embrace social justice rather than treating it as a noble motivation that is ultimately

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irrelevant to the substance of environmental decision-making.139 Meanwhile, even in better times than the present, federal and state agenciesÊ embrace of environmental justice goals has often been tepid at best.140 If mapping could help turn environmental justice law into something real and impactful, its importance would be profound.

The possibility of transformative influence explains much of the excitement about EJ-mapping. But there also are concerns. The following discussion identifies three. The first draws on the extensive, and often skeptical, legal literature on model- or algorithm-based decision-making.141 Much of that literature worries that these technical modes of decision-making are much less neutral and accurate than they seem and that the flaws often harm disadvantaged groups.142 The second concern is about how EJ-mapping applications bring, or do not bring, race into governmental decision-making.143 The final concern is about how EJmaps will fare when they collide with the inherent inertia and caution of government agencies.144 Each concern leads to specific questions about EJ-mapping.

1. Algorithms, Models, and Equity

In recent years, legal-academic authors have often warned about computer-driven governmental decision-making.145 Much of the literature focuses on algorithms·the term has become quite trendy·but the underlying worries apply to other forms of technically complex, computer-aided analysis, and they also have been around for years, including in environmental justice writing.146

A series of worries emerges from those discussions. Many begin with the observation that computer-based modeling often draws on flawed data sets, which create „garbage in, garbage out‰ problems.147 Relatedly, critics worry that those data sets may be flawed in biased ways, particularly if algorithms are trained on data that, in turn, are influenced by discriminatory practices.148 Critics also worry about the opacity of the internal logics of complex models, for that opacity can make model flaws difficult to understand or correct.149 Underlying and unifying all these concerns is a sense that complex, technical decision-making serves to consolidate power, either in the hands of the technocrats who run the models or, more likely, in the hands of people who have the resources to fund the technocratsÊ work and who hope to use technical analyses to advance their own interests.150

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In some ways, EJ-mapping offers an intriguing counterpoint to these arguments. EJ-mapping applications were called for by, and often developed in partnerships with, environmental justice advocates.151 Their creators have generally been transparent about explaining the modelsÊ internal logics.152 The maps are available on publicly accessible websites, many of which are quite user-friendly (or even mildly addictive).153 Indeed, a key objective of these mapping applications has been to make information accessible. The maps try to make it easy to see quickly where environmental justice communities are and why those communities might be challenging places to live.154 And while EJ-mapping applications might be used to reinforce traditional disparities in wealth and power·one can imagine realtors, for example, using them to steer clients away from „bad‰ neighborhoods·we found no evidence that anyone is building or using the applications for such purposes. Amid all the critiques of computer-based decision-making, EJ-mapping applications may showcase such decision-makingÊs democratic potential.

But in other ways, the traditional critiques have resonance. Embedded within mapping methodologies are many uncertainties, value judgments, and oversimplifications.155 No screening tool can include every potentially relevant measure, and most have significant exclusions.156 Some datasets are likely to contain important inaccuracies.157 Other measurements may be poor proxies for actual exposures. The number of hazardous waste sites in a census tract, for example, may matter much less

than the size of the sites, the toxicity of the chemicals present, and the extent to which remedial efforts have isolated pollutants from the public.158 Using geographic units creates its own challenges. In sparsely populated areas with large census tracts, pollutant sources might be distant from most of the population, and, in densely populated urban areas, where census tracts can be tiny, environmental quality can be heavily influenced by pollutant sources outside the tractÊs boundaries.159 Yet even in those densely populated areas, pollutants can be hyper localized so that even a census tract is sometimes an overly broad unit of analysis.160 Choices about weighting scores also can involve difficult judgments. How should different types of pollution or different health problems be weighed against each other, for example, and should pollution matter as much as poverty?161 The answers to these questions are consequential and far from obvious.162 And, similarly, the selection and weighting of non-environmental factors involves addressing some of social justiceÊs most fraught questions, like the relative importance of economic status and race.163

These limitations are generally acknowledged in the EJmapping community. Indeed, one reason mapping-application

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creators have done so much outreach work and have produced multiple iterations of their applications is that they are well aware of the challenges and value judgments inherent in the enterprise.164 Additionally, these kinds of oversimplifications are part of almost any effort to take complicated phenomena and present them to decision-makers in manageably simplified ways.165 With data-driven decision-making, there are always tradeoffs between breadth, depth, and accuracy. But these limitations still raise questions about how government agencies will integrate EJ-maps into their decision-making·and even, sometimes, about whether the tools offer enough precision and accuracy to be used at all.166

2. Mapping Race

A second difficult question is how EJ-mapping should address issues of race. The appropriate answer might seem obvious·a movement designed to counter racism must be conscious of race, or so one might think167·but changes in equal protection law have placed agencies on uncertain legal ground.

As a technical matter, it is feasible to make race an element of the mapping and a basis for decisions.168 This approach is consistent with the premises and goals of the environmental justice movement.169 The movement began with a recognition that Black Americans were suffering from disproportionately heavy

environmental burdens, and it has argued that these burdens recur across traditionally disadvantaged groups, at least partly because of racial motivations.170 Accordingly, it has argued for race-conscious responses to these problems.171 Indeed, some environmental justice advocates have argued that to adopt legal definitions·or mapping applications·that are not race-conscious would be to gut environmental justice.172

Court decisions have increasingly complicated this situa-

tion, however.173 In a growing set of cases, including Students for Fair Admissions Inc. v. President and Fellows of Harvard College,174 the Supreme Court has limited government entitiesÊ ability to factor race into decision-making, even when those government entitiesÊ goals are remedial.175 Lower courts have gone further. Most importantly, several lower court decisions have enjoined implementation of a Department of Agriculture program designed to funnel funding to farmers who are people of color.176 In defending the program, USDA cited extensive and uncontroverted evidence of historic racial discrimination,177 but, for the courts, that was not enough; they still found the program failed

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to satisfy strict scrutiny, which is generally the most exacting standard for review of the constitutionality of a statute.178 While environmental advocates and law professors have argued that race-conscious EJ-mapping applications should be treated differently,179 the existence of similar threats to environmental justice programs seems clear.

litigation180·has

The threat may also extend to EJ-mapping applications that do not use race as an input variable. In another series of recent cases, the Pacific Legal Foundation·a conservative advocacy organization that specializes in both anti-affirmative-action and challenged anti-environmental-regulation school admissions policies that do not employ race as an input variable but were intended to correct for underrepresentation of traditionally disadvantaged groups.181 The plaintiffs have argued that just as it would be unconstitutional to adopt a government policy that, while facially neutral, is motivated by antiBlack animus, it would be similarly unconstitutional to adopt a facially neutral policy that legislators or administrators hope will close gaps between Black and white populations, even if that policy uses no direct racial classification.182 These arguments have not yet prevailed in any appellate court, and there are compelling reasons why they never should.183 But at least some judges clearly have been tempted by the simplistic symmetry of the arguments,184 and similar arguments now animate

administrative crusades against racial-justice initiatives.185 Indeed, the temptation might grow stronger if environmental regulation and corrective racial justice·both „bogeymen,‰ in Justice KaganÊs apt terminology, of conservative activists·come together in the same case.186 Acceptance of those arguments could be devastating to governmental, and perhaps even private, use of EJ-mapping applications.187

3. Inertia

A third key question is how EJ-mapping applications will fare when they encounter the normal human tendency to do things in familiar ways. Although government agencies have been quite innovative in developing EJ-mapping applications, putting those applications to use may be another matter. If environmental justice applications are really going to transform environmental law implementation, that will ultimately happen through the work of thousands of permit writers and other fieldlevel regulatory staff.188 It also will likely require adoption and use by local as well as state and federal actors, for much of the rubber-meets-the-road environmental justice decision-making happens through local land use authority.189 And, importantly, nongovernmental actors will almost certainly need to be involved. Much of the work of environmental compliance happens either in negotiation or under contract with private-sector consulting firms and regulated entities, all of which have familiar

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and streamlined ways of doing business.190 Those familiar ways generally have not involved using EJ-mapping, and that raises questions about whether people will be receptive to a change.

There will also be some political environments in which inertia is the least of EJ-mappingÊs problems. Even before the Trump administrationÊs anti-DEI crusades, efforts toward affirmative racial justice were becoming increasingly controversial. Environmental justice had not escaped that controversy, with some prominent critics dismissing the entire concept as „a euphemism for BidenÊs extreme agenda.‰191 Indeed, one of the second Trump administrationÊs first executive orders seeks to eliminate the „environmental justice‰·a phrase the order would only put in scare quotes·from federal government decisionmaking.192 But even in states where stated political commitments are very different, and where EJ-mapping applications still seem to fill administrative needs, the challenges of inertia are likely to remain.193

II. EJ-MAPPING IN PRACTICE

As Part I shows, there are intriguing questions about whether and how EJ-mapping applications will be used. In this Part, we begin answering those questions.

We do so by analyzing court cases and administrative documents from states and the federal government. Our discussion lack thereof) of EJ-mapping begins with uses (or the

applications in more conservative states, with a focus on Florida, Indiana, Louisiana, Ohio, and Texas. We then turn to California, which, as described above, is where the current generation of EJmapping applications first emerged and also is a place where environmental justice challenges are legion.194 That makes California a best-case scenario for demonstrating the potential of EJmapping.195 We also focus on the federal government, because of its importance and reach, and on New Jersey and Michigan·the former because it has one of the nationÊs most ambitious environmental justice laws196 and the latter because it provides a centrist contrast to the more liberal states on the East and West Coasts. Finally, we conducted Westlaw searches, across all states and in databases of EPA documents, for mentions of „EJScreen‰ or „CEJST‰ (the Climate and Environmental Justice Screening Tool).

For each state, we searched for court cases referring to EJmapping applications. Because court decisions are just the tip of the environmental law iceberg, we also searched for mentions of mapping applications in agency documents. Where we had access to text-searchable agency databases, we used search terms to run comprehensive searches. Where we lacked such access, we collected random samples and searched or read through individual documents. We collected some basic counting statistics, like recording how often screening tools were mentioned, but our most important observations come from qualitative analyses of the documents.

This methodology creates two important limitations. First, though our use of agency documents broadens our work beyond typical legal research, agency documents will not reveal all the ways mapping applications might matter to environmental law. Maps can inform agency decisions in ways that do not show up in any written document, perhaps by providing agency staff with

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background information about the areas with which they will work.197 Similarly, much of what matters in environmental law happens outside agencies and is not recorded in their documents.198 A mapping application might help activists explain environmental burdens to their supporters, for example, or might help a consultant or developer gain an initial understanding of a community. Those uses could matter, and they might not leave any paper (or internet) trail.

The second important limitation·though also an opportunity·is that we are providing partial snapshots of evolving phenomena. Even in the states where they have been used the longest, EJ-mapping applications are still fairly new, and people are still learning what to do with them. At the federal level, uses of EJ-maps already have been heavily affected by the political pendulum of presidential elections, and future swings will likely come.199 For that reason, our findings help explain what has happened so far·not some inevitable future. Uses ten years from now could be different than they are today, and our findings can inform the changes.

Proponents of EJ-mapping applications argue that the applications have transformative potential.200 And, as later parts of this Article will explain, there are governance arenas in which EJ-mapping applications have been central to agency decisionmaking.201 But there are important counterexamples. Most notably, politically conservative states appear to be making little use of EJ-mapping applications.

Searches of case databases from Louisiana, Indiana, Texas, Florida, and Ohio found only one example of EJ-mapping applications coming up in court decisions: the Rise St. James litigation discussed in this ArticleÊs introduction.202 At the agency

level, references were only slightly more frequent.203 Searches of WestlawÊs databases of state agency decisions came up dry.204 Because WestlawÊs databases include only subsets of state agency documents, we also searched state agency websites, and there we found more hits, but only marginally so.205 Conservative states sometimes referred to EJScreen in documents for which EPA was the primary audience, such as Clean Air Act planning documents or supporting documents for grant applications.206 They also sometimes mentioned EJ-mapping applications when explaining why those applications were not used as decision-making tools.207 But even those documents were very rare.

Other researchersÊ work demonstrates that there is more to the story, though not much more. In a recent study, Shannon Conley, David M. Konisky, and Megan Mullin examined state

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allocation of National Electric Vehicles Infrastructure grants, which were funded by the Infrastructure Investment and Jobs Act and administered by the Department of Transportation.208 Because those grants begin with a federal agency, they were subject to the Biden administrationÊs Justice40 initiative, which called for at least forty percent of the benefits of federal energy and environmental spending to go to disadvantaged communities.209 The Justice40 initiative also anticipated using CEJST to identify those communities.210 Conley and coauthors found that states were planning to distribute the money in accordance with Justice40 priorities, and they found that these plans existed in red states as well as blue.211 Their study suggests that even politically conservative states sometimes use EJ-mapping applications; more generally, it reinforces the basic point that federal funding can induce even reluctant states to pursue federal priorities.212 But the beachhead they describe was small, and it no longer exists.213

This limited embrace of EJ-mapping applications is important. The discussion that follows will focus primarily on settings in which EJ-mapping applications are being used; there is more to say about those settings. But readers should not infer from that discussion that EJ-mapping applications have taken

all environmental policymaking by storm. In some realms, they have, but sometimes only briefly, and there are many areas in which these applications might be useful but are not used.

EJ-mapping applications were initially developed to allocate money.214 At both federal and state levels, they have been used for that purpose, with billions of dollars directed toward initiatives in, or benefiting, communities the tools identified as disadvantaged. Even states that normally ignore EJ-mapping applications do sometimes bring them up when seeking federal funding.215 Their extensive use has not been without controversy, as discussed in more detail below. But even the preliminary track record suggests that EJ-mapping applications are fulfilling their promise as tools for allocating funds.

California created CalEnviroScreen as a funding-allocation tool, and the application is widely used for that purpose. According to the California Office of Environmental Health Hazard Assessment, over a dozen state programs now use CalEnviroScreen, many of them to distribute funding.216 Some of this use is discretionary, but, for many programs, it is required. For example, a 2012 law, called SB 535, states that at least twentyfive percent of the revenues from CaliforniaÊs cap-and-trade program, which requires emitters to purchase allowances to emit greenhouse gases, must go to disadvantaged communities.217 California EPAÊs implementing regulations rely on CalEnviroScreen to identify those communities,218 and recipients of

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funding must publicly report their spending, again using CalEnviroScreen to identify where that funding went.219 Multiple other funding programs follow this model, often because of direct statutory mandates.220 Those programs have emerged at both federal and state levels.221

These programs have been substantial. CaliforniaÊs capand-trade programÊs revenues fluctuate, but the program typically allocates several billion dollars per year.222 Its cumulative allocations now are over eleven billion dollars, and the state estimates that over three quarters of that funding has gone to benefit „priority populations.‰223 The resulting investments have supported a huge range of activities·from the planning of highspeed rail systems and affordable infill housing to forest treatment.224 At the federal level, the story was similar. A recent study by Resources for the Future found that the Biden administrationÊs Justice40 program channeled billions of dollars toward disadvantaged communities, with those communities identified using CEJST or, before CEJSTÊs release, EJScreen.225 The Inflation Reduction Act channeled billions more.226

At a broader level, these programs are realigning environmental law. Not just in California, but also, for a time, at the federal level, recent environmental law initiatives have moved away from a traditional focus on regulatory control and toward the widespread use of financial grants and other financial incentives.227 This reliance on financial instruments has often had tepid support, and sometimes outright opposition, from environmental justice activists·many of whom are skeptical that tinkering with market incentives is the way to build a greener and more just future.228 But promises that funding will go to disadvantaged communities have helped to overcome some of this skepticism and to build political coalitions in support of·or, at least, tense truces about·the shift toward environmental protection through financial incentives.229

That realignment would be difficult·perhaps impossible· without EJ-mapping applications. In theory, the agencies allocating money might base each grant decision on in-depth consideration of each applying communityÊs proposal, without resort to comparative screening tools. That is how granting organizations traditionally tried to operate. But that sort of bespoke decisionmaking creates major challenges for the very communities it is supposed to help; navigating complex grant-application processes can be a struggle.230 Bespoke decision-making also can be quite difficult for the entities allocating money, particularly if they need to make many decisions quickly. It also complicates oversight. It is difficult for anyone who hopes to review dozens, or perhaps even hundreds, of grants to assess if the money is going where it should. A metric that allows quick identification and prioritization of targeted communities can be indispensable

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for program functioning and review, and EJ-mapping provides such metrics.

But there have been growing pains. Any map strategically simplifies reality,231 and decisions about which values to include and how to weight those values will inevitably involve contestable value choices.232 Mapping applications also can be highly sensitive. A recent study by Stanford University researchers, for example, found that even subtle adjustments in CalEnviroScreenÊs weighting could lead to major changes in the resulting maps.233 That may sound like a theoretical concern, but billions of dollars are at stake, and some communities are frustrated with the ways in which those dollars are being allocated.234 Likewise, many advocates are arguing for tailored modifications to CalEnviroScreen.235 That tailoring could lead to valuable experimentation·users might come up with better versions·but it also creates threats. As the Stanford researchers warn, „the zero-sum nature and high sensitivity of the model are conducive to model manipulability. It is feasible for a politically motivated internal actor, whether subconsciously or intentionally, to prefer model specifications that designate tracts according to a specific demographic, such as political affiliation or race.‰236

Similar concerns have emerged at the federal level. Some critics are frustrated that CEJST provides a simple binary ranking, with census tracts qualifying as „disadvantaged‰ if they meet any of the mapping criteria, rather than trying to measure

cumulative impacts by creating an overall ranked score.237 Others worry about omitted variables, and one of the most frequent objections·addressed in more detail later in this Article·is to the applicationÊs omission of race.238 More broadly, many critics seem uncomfortable with making decisions based on maps that reduce complex stories to simplified metrics. Critics often call for agencies to build greater community involvement into mapping exercises and to complement their map-based determinations with additional variables and with qualitative inquiries into community stories.239 And the ratchets only go one way. While commentators sometimes acknowledge, in general terms, the challenges raised by more complex decision-making models,240 we have not found specific suggestions for making the maps simpler.241

Even if they had no other uses, EJ-mapping applicationsÊ importance to funding programs would give them significant influence on environmental policy and law. But while funding has grown in recent years, and some of the funding programs have lasted, environmental law still is primarily about regulation.242 Consequently, if EJ-mapping applications are to have transformative influence, that influence would need to show up in regulatory decision-making.243 It has only tentatively begun to do

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so. EJ-mapping applications are sometimes mentioned and occasionally appear to influence regulatory decisions but, generally, in situations where there are top-down directives and specific guidance for their use. To date, those situations are rare. And even where agencies do appear committed to integrating EJmapping applications into regulatory decision-making, questions remain about what functions the applications should serve. This Section discusses four areas in which EJ-mapping applicationsÊ role in regulation is likely to surface: (1) environmental impact review; (2) air quality regulation; (3) land use planning; and (4) energy regulation.

1. Environmental Impact Review

One potential area of influence is environmental impact review. The National Environmental Policy Act (NEPA) requires federal agencies to assess and disclose the environmental consequences of their proposed actions,244 and some state laws establish similar requirements.245 Some of these state laws go further, mandating some degree of avoidance or minimization of environmental impacts.246 In California, the combination of a substantive mandate and, in practice, low triggers for compliance requirements has turned the California Environmental Quality Act (CEQA) into the stateÊs most influential and controversial environmental law.247 Other statesÊ laws are similarly prominent.248

EJ-mapping applications seem like natural fits for these environmental-impact-review laws. Environmental impact studies typically begin with a description of the project setting, and EJ-

mapping applications can inform those descriptions.249 Environmental review laws also require agencies to assess the significance of project impacts, and information about the sensitivity of affected communities could support those assessments.250 That might happen within individual documents, or agencies might incorporate EJ-mapping information into generalized thresholds for measuring the significance of impacts.251 Where environmental impact analyses lead to the adoption of mitigation measures, EJ-mapping applications also might help agencies decide what mitigation measures to adopt and where to implement them.252 Additionally, most environmental review laws require assessments of cumulative effects,253 and many EJmapping applications came into existence partly as tools for cumulative-impact assessment.254 For all these reasons, one might expect EJ-mapping applications to play central roles in environmental reviews.

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Actual documents tell a more complicated story, however. In California, in the pool of environmental impact reports (EIRs)255 and mitigated negative declarations256 that we reviewed,257 CalEnviroScreen hardly ever played a prominent role. Over sixty percent of the EIRs did not mention it at all.258 In many others, CalEnviroScreen data appeared in an appendix, but the authors made no attempt to explain how CalEnviroScreen informed their analysis.259 We found rare examples of project-setting discussions that made extensive use of EJ-mapping applications, but those discussions·and in-depth discussions of environmental justice more generally·tended to appear only in documents jointly prepared with federal agencies.260 In our sample of CEQA

documents, we saw no examples of agencies using CalEnviroScreen data to inform their determinations of the significance of environmental impacts·except that agencies seemed comfortable using low CalEnviroScreen scores to say their projects would not raise environmental-justice concerns.261 Nor did we find evidence of agencies using CalEnviroScreen to develop standardized thresholds of significance.262

Instead, the most extensive discussions of CalEnviroScreen often came from environmental justice groupsÊ comments on draft reports.263 And those requests for more extensive use of CalEnviroScreen were often rebuffed.264 One agency dismissed potential uses of CalEnviroScreen simply by saying „CEQA does not require an environmental-justice analysis.‰265 Another, rejecting comments that asked the agency to use CalEnviroScreen to inform its analysis of the impacts of a warehouse project,

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responded: „While CalEnviroScreen is a useful tool in assessing a communityÊs risk, it is not an appropriate tool for evaluating a projectÊs impact on the environment as required under CEQA.‰266 Another concluded that „the fact that the Project is located in an area that CalEnviroScreen identifies as in a higher percentile for pollution burden is not indicative of a CEQA impact.‰267

In late-Biden-era federal environmental review documents, EJ-mapping applications were more prominent. We reviewed all environmental impact statements (EISs) (draft, final, and supplemental) published by the federal government in September 2024.268 Most contained extensive environmental justice analyses·some contained entire chapters or supplemental reports on environmental justice impacts·and most of those analyses used EJ-mapping applications.269 The applications used were not always the same·most used EJScreen, some mentioned CEJST, and one relied primarily on state applications·and the uses also varied.270 For some studies, EJ-mapping applications just provided an initial identification of potentially sensitive communities, and the analysis then proceeded on the basis of

more localized and specific data.271 In other studies, federal agencies dug into EJScreen data, focusing on subsets of the data to perform specific analyses.272 And in others, EJ-mapping applications received only passing mention,273 or the drafters appeared to have skipped EJ-mapping applications and used more site-specific data.274 But on the whole, and across multiple agencies, federal studies show how extensive environmental justice analyses could be part of environmental review and how EJmapping applications can support those analyses.275 Whether those environmental justice analyses made a difference in

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project outcomes is, of course, another question, and it is a question we cannot answer by simply reviewing documents.276 Nevertheless, the documents do show that, for a time, environmental justice analyses and EJ-mapping applications became significant parts of NEPA review.

EJ-mapping applications also have begun appearing in court cases addressing NEPA challenges. In a few recent decisions, courts have held that when agencies voluntarily include an environmental justice analysis in their NEPA reviews, the analysis is subject to arbitrary and capricious review under the Administrative Procedure Act.277 The courts also have held that agencies have significant discretion in their choice of tools and methodologies, provided their decisions are reasonable and wellexplained.278

New Jersey exemplifies a different approach. In 2020, the state enacted its Environmental Justice Law, which has been hailed (along with a more recent New York law)279 as one of the nationÊs most ambitious environmental justice laws.280 The law mandates the incorporation of EJ-mapping applications into regulatory decision-making.281 The New Jersey EJ-mapping, Assessment, and Protection Tool (EJMAP), which is the stateÊs mapping application, uses demographic and economic information to designate parts of the state as „overburdened

communities.‰282 If an applicant seeks to obtain or renew one of several different types of environmental permits for a facility within an overburdened community, it must prepare an environmental justice analysis of the proposed activity.283 State regulators then must review the application and must veto the permit if the facility will „cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the [s]tate, county, or other geographic unit of analysis.‰284 In other words, a classification system based on an EJmapping application determines both procedural and substantive obligations and can lead to the rejection of a project.285

The program is so new·the New Jersey Department of Environmental Protection (DEP) just completed its implementing regulations in 2023286·that a comprehensive assessment would be premature. Indeed, as of this writing, New Jersey DEP has issued only one decision.287 But that one decision provides an intriguing case study.

The decision involved proposed construction of a new natural-gas power plant in Newark.288 The applicant·a wastewater

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treatment plant operator·said it needed a supplemental power source to keep the plant running during power outages and, thus, to avoid flooding streets with sewage.289 Activists from the local community, which was already heavily impacted by industrial pollution, opposed the construction of a new fossil-fuel-fired unit in their neighborhood.290 The applicant went through the Environmental Justice Law process, and the result was a compromise.291 The state allowed construction and operation of the unit but required a net reduction in emissions from the facility and several moves toward the eventual replacement of natural gas with renewable power.292

To the local activists, the decision was an outrage.293 They wanted a simple permit denial.294 But even without the community activistsÊ preferred result, EJ-mapping and the stateÊs environmental justice law still mattered. The additional review process gave the state leverage to extract additional conditions that were more favorable to the community.295 In any setting, regulatory decisions that stop proposed projects are exceedingly rare, and most of the work of environmental law involves reducing or mitigating adverse impacts while still allowing projects to be built.296 In this instance, the presence of an additional set of review requirements strengthened the communityÊs and the stateÊs hand·not enough to stop the project but enough to lead to some significant adjustments·and, perhaps, to signal to future applicants that the stateÊs new law could have real effects.297

In summary, these examples show that EJ-mapping applications can be part of environmental impact review and that the applications can produce changes in outcomes. In many processes, however, influence appears to be absent, or it is difficult to connect pages of analysis·often nuanced and thoughtful·to specific results. Additionally, EJ-mapping applications have been used primarily where there are clear directives·either through statutes or executive orders·for their use, and much less so, even in relatively liberal California, where decisions about whether and how to use the applications are largely left to agency discretion.

2. Air Quality Regulation

We also reviewed air quality regulation, with a primary focus on Title V permits, which are comprehensive Clean Air Act permits for major stationary sources of air pollution.298 For multiple reasons, EJ-mapping applications could inform the content of these permits.299 In many areas, major stationary sources impact environmental justice communities; indeed, the major source will often be a reason for environmental justice concern.300 Additionally, air quality permits provide opportunities to address community impacts.301 The contents of Title V

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permits are standardized in some ways but flexible in others, and incorporating mitigation measures is a standard part of permitting.302 EJ-mapping applications, therefore, might influence permit terms.

In state documents, we found little evidence that EJmapping applications are playing that role. In California, we found no Title V permits that mention CalEnviroScreen.303 That may be because the permitting documents themselves specify obligations without explaining the reasoning behind those obligations, but, where agencies made Title V permit basis reports available·not all of CaliforniaÊs air districts do·we still did not find mentions of CalEnviroScreen.304 Nor did we find references to CalEnviroScreen in agency templates for permits or documents that provide guidance on air quality permitting.305 The story in other states was similar. In all the states we reviewed, and with just one exception, we did not find any Title V permits

or supporting documents that referenced EJ-mapping applications.306 The exception is that New Mexico regulations require the City of Albuquerque to impose heightened permitting standards on stationary sources in areas mapped as „overburdened‰ communities.307 But that example appears to be unique.308

That does not mean EJ-mapping applications are irrelevant to state-level air quality management. When CaliforniaÊs air districts apply for funding for new community air-quality-monitoring stations, they generally draw extensively on CalEnviroScreen data in their discussions of affected communities.309 A relatively new California law also directs air districts to identify environmental justice areas for targeted air-quality-improvement programs, and CalEnviroScreen data inform the selection of those areas.310 Other states·even politically conservative in ones·sometimes

to EJ-mapping applications

refer

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documents governing air quality planning and monitoring.311 EPA has pushed them to do so more often.312 But for permit issuance·which, traditionally, is the heart of air quality management·EJ-mapping applications do not yet appear to have a significant role.

Under the Biden administration, federal air quality regulation offered more evidence of influence. While state air quality regulators handle most air quality permitting, EPA issues permits in offshore areas, Indian country, and in places where it has rejected state permits.313 It also provides guidance and oversight to state permit writers.314 In recent years, using EJ-mapping applications became a point of emphasis in those efforts. For example, EPA Region 9 has provided trainings on using EJScreen in air quality permitting, and its training documents noted that the region performed at least a preliminary EJScreen analysis in all permitting processes.315 Those documents also identify examples of permit terms that were affected by outreach processes that in turn were driven by EJ-mapping.316 Similarly, EPA has

used EJ-mapping applications in other areas of air quality regulation. In 2024, for example, some of its decisions on state airquality-plan amendments included discussions of EJ-mapping applications.317 But those discussions had no agency-identified influence on actual decisions. Instead, EPA often took pains to explain that the Clean Air Act says nothing about analyzing environmental justice and that the information from EJ-mapping applications was present just to provide context, not to drive decisions.318

That means uses of EJ-mapping applications in air quality permitting resemble uses in environmental impact assessment. Where there are directives to use EJ-mapping applications, agencies are doing so, and those uses demonstrate the potential value of the applications. AlbuquerqueÊs limited example also shows how those applications could be used not just to provide context but also to affect permit terms.319 But that example appears to be unique. In most settings, agencies have neither clear directives nor standard practices for factoring EJ-mapping applications into air quality decision-making.

3. Land Use Planning

As with environmental impact review and air quality permitting, land use planning seems well-suited for EJ-mapping applications. Many states require cities and counties to develop comprehensive land use plans and to ensure that individual

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project decisions are consistent with those plans.320 These activitiesÊ potential connections to EJ-mapping applications are extensive. The environmental justice movement grew out of concerns about siting decisions,321 and it has always identified traditional land-use-planning practices as causes of environmental injustice and better land use planning as a potential fix.322 Similarly, land use planning means mapping the communities of the future, and mapping applications that provide detailed information about existing conditions have obvious value to that enterprise.

We focused primarily on California, where the connections between EJ-mapping applications and land use planning could be particularly strong. That is partly because California has had an EJ-mapping application for longer than any other state, but it is also because CaliforniaÊs extensive system of environmental regulation is thoroughly intertwined with an equally extensive system of land use law.323 Recent state legislation also has explicitly incorporated environmental justice into those systems. In 2016, California enacted SB 1000, which requires local governments to include an environmental justice element when they create or update their land use plans.324

To assess how CalEnviroScreen is being integrated into local land use planning, we reviewed two types of documents. First, we identified the sixteen California municipalities containing census tracts with the highest CalEnviroScreen scores and reviewed these municipalitiesÊ general plans to assess whether and how they discuss CalEnviroScreen. Second, we reviewed letters sent to municipalities by the California Attorney

GeneralÊs Office of Environmental Justice, which comments on municipalitiesÊ SB 1000 compliance. Finally, to check our California findings against other states, we also looked at land use plans from Michigan and New Jersey municipalities that contained particularly high-scoring census tracts.325

These documents show that EJ-mapping applications are becoming increasingly important to California land use planning but are showing much less evidence of influence in other states. Prior to the passage of SB 1000, CaliforniaÊs general plans largely did not discuss CalEnviroScreen, even when those plans addressed areas with extremely high CalEnviroScreen scores.326 Similarly, references to EJ-screening maps were almost entirely absent from Michigan and New Jersey plans, even with the plans (which were few in number) that postdate development of federal and, more recently, state EJ-mapping applications.327 More recent California plans do tend to discuss CalEnviit extensively.328 roScreen, however, and some discuss

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SacramentoÊs recent general plan update is a good example.329 The document contains pages of CalEnviroScreen discussion, and the authors used CalEnviroScreen not just to identify overall scores and potential target areas, but also to unpack and understand the range of different stressors affecting communities and to identify priority response measures.330 Similarly, most of the California Attorney GeneralÊs SB 1000 comment letters rely on CalEnviroScreen·often to explain the need for environmental justice policies.331

Collectively, these documents show that EJ-mapping applications have an emerging role in land use planning. The applications are providing local governments with an information base for environmental justice analyses and policy development. They also provide plan reviewers with justifications for considering environmental justice. But their incorporation into land use planning is nascent, and, even in California, it has not happened organically. Instead, only with a combination of statutory mandates and state guidance and advocacy has EJ-mapping begun to influence local land-use-planning decisions.

4. Energy Regulation

The final regulatory arena we reviewed was state-level energy regulation. Energy regulation would seem to provide another potentially promising forum for use of EJ-mapping applilaws give state public utilities cations. Many energy

commissions the authority to set „just‰ and „reasonable‰ rates, and that broad language gives agencies discretion to bring equity-related concerns into their decisions.332 Indeed, an equity focus already is embedded in many facets of energy regulation, for cross-subsidies and incentive programs are prevalent in regulated energy systems, and many of those cross-subsidies and incentive programs are oriented toward equity-related goals.333 Energy regulatorsÊ decisions also are likely to have important environmental justice implications; fossil-fuel power plants are major pollution sources,334 and paying for energy can be a significant challenge for people in poor communities.335 For these reasons, ideas of energy justice have become increasingly prominent in energy policy discourse.336

Our inquiry focused primarily on California and Michigan, both of which have often referred to EJ-mapping applications in recent Public Utilities Commission (PUC) decisions. At first glance, those decisions suggest that the applicationsÊ potential value is becoming reality. In recent years, the California PUC has mentioned CalEnviroScreen in well over 100 decisions.337 In fact, in WestlawÊs database of California administrative orders, nearly all of the references to CalEnviroScreen come from PUC

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decisions, most involving energy regulation.338 The California PUC also has a detailed Environmental and Social Justice Action Plan, and the document repeatedly refers to CalEnviroScreen as an important decision-making tool.339 In Michigan, the references are fewer and have begun more recently, but the Michigan PUC now often demands that regulated utilities incorporate environmental justice principles into their planning·and that they make use of MiEJScreen.340

Digging into the documents reveals a somewhat more complicated story, however. In California, uses of CalEnviroScreen in energy regulation are extensive, but those uses also relate almost entirely to allocating funding.341 Funding programs are

central to energy regulation in California; many of the PUCÊs efforts are focused on ensuring that the financial inducements driving the stateÊs renewable energy transition reach beyond wealthy communities.342 But there are other areas of energy regulation, like rate setting and facility siting, where the influence of CalEnviroScreen is not as clear. In Michigan, the role of MiEJScreen is somewhat different; many decisions involve regulators directing the stateÊs utilities to include environmental justice analyses in their submissions.343 But those directives leave a host of hard questions unanswered, including, most importantly, what counts as an adequate analysis and what level of support for disadvantaged communities is sufficient to achieve the PUCÊs equity goals.344

The overall lesson from energy regulation in Michigan and California again is that EJ-mapping applications have begun to move into regulatory decision-making. But they also appear to have done so, again, because of a centralized push from within the regulatory agency. And it remains uncertain where that push will eventually lead. EJ-mapping tools are used to allocate funds in California and are now part of the discussion in regulatory decision-making in both states, but their import for other regulatory outcomes remains unclear.

Finally, across the range of administrative and court decisions we reviewed, we searched for evidence of how decisionmakers were addressing race and what issues, if any, were arising from their approaches.

What we found may be the calm before the storm. At the federal level and in California, the controversy, has mostly involved critiques from advocates who wanted race included as a variable.345 The Biden administration received heavy criticism

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for declining to do so with the application·CEJST·it used to allocate funding.346 Federal officials justified that approach not just as more defensible but also as consistent with environmental justice values.347 Meanwhile, federal agencies did sometimes cite the presence of minority populations as a reason for including environmental justice analyses in NEPA studies,348 but we found no document in which race appeared to have a deciding role in assessing the significance of an impact or in selecting a mitigation measure. Nor did we find any equal-protection challenges to federal use of CEJST or EJScreen or to state use of CalEnviroScreen.

The situation is somewhat different with New York and Massachusetts, both of which (along with New Jersey) use minority status as a mapping variable.349 To date, challenges to the use of race have been rare, but they have started to happen. One pending case, brought by a Hasidic community in upstate New York, argues that the community was unlawfully excluded from

the stateÊs list of disadvantaged communities.350 Likewise, a company proposing to build a biomass facility in western Massachusetts has unsuccessfully challenged a permit revocation, arguing that the state agencyÊs decision unlawfully employed race.351 But neither an abundance of decisions on race and EJmapping applications nor in-depth analyses have yet emerged. Similarly, we have not found any challenges to facially neutral EJ-mapping tools.

Nevertheless, the clouds have been gathering, with multiple cases raising broader challenges to the use of race in environmental justice decision-making. A recent federal court decision from Louisiana provides one prominent example.352 The case arose out of a series of disputes between the State and EPA. EPA had questioned whether state-agency activities were at odds with EPAÊs regulations issued under Title VI of the Civil Rights Act.353 Those regulations prohibit EPA-funded entities from „us[ing] criteria or methods of administering its program or activity that have the effect of subjecting individuals to discrimination because of their race.‰354 Louisiana argued, successfully, that the regulationsÊ focus on effects is inconsistent with the statute, which Louisiana claimed prohibited only intentional racial discrimination.355 The case thus turned on statutory interpretation,356 and it did not involve maps. Still, equal protection jurisprudence clearly lurked in the background; the court repeatedly discussed Supreme Court cases limiting equal protection claims to showings of intentional discrimination.357 The case thus

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suggests how conservative litigants and courts might approach a challenge to race-conscious EJ-mapping.

Louisiana v. EPA appears to be part of a coordinated strategy. In April 2024, a coalition of States, including Louisiana, petitioned EPA to repeal its Title VI regulations, which include a disparate-impact standard.358 The petition argued that those regulations „actually promote·rather than prevent·discrimination based on race.‰359 As this Article goes to press, that position is now official White House policy, and it is part of the Trump administrationÊs systematic efforts to dismantle social justice initiatives.360 Both in and outside courtrooms, the challengers to race-aware decision-making are on the march.

III. LESSONS FROM EJ-MAPPING

The previous Part demonstrates that EJ-mapping applications are a small but growing part of environmental regulation, illustrates a variety of different uses of those applications, and identifies some emerging challenges. In this Part, we turn from descriptive to normative analysis; we explain what agencies should be doing with EJ-maps.

Our first, and most important, conclusion is that EJmapping applications deserve their growing place in environmental regulation. Their many uses, particularly in distributing funding, show that they make it easier for agency decision-makers and members of the public to identify a range of challenges facing a community and to draw comparisons across communities. Crucially, they also allow people to do these things quickly. Environmental regulation sometimes demands fast action, whether because people have many things to do or because the situation is urgent.361 If time is of the essence, a tool that can

produce a snapshot of a community in a matter of minutes can be indispensable.

Similarly, these tools provide mechanisms for drawing comparative judgments about communities and explaining those judgments in relatively transparent ways.362 For government entities distributing resources to hundreds or even thousands of potential recipients, and for third parties seeking to review government distribution of resources, that combination of speed, consistency, and transparency can be crucial.363 And if the tool leaves some communities without funding, that is at least as much a feature as it is a bug, despite some criticisms to the contrary.364 The point of using EJ-mapping applications in grant application is to shift money to the places that need it most, and limiting some communitiesÊ funding is an unavoidable part of the exercise. One can argue with the logic of the tools or with political choices that cap overall funding, but it is not the mapping applicationÊs fault if there is not enough money for every deserving community.

Nevertheless, while speed, consistency, and transparency are often virtues, environmental regulation also presents many situations in which making large batches of fast but imperfect decisions need not be the goal.365 That is particularly true with environmental justice decision-making, where a common aspiration is to make sure that the members of marginalized

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communities have genuine opportunities to be heard and empowered.366 A fast, computer-based mapping application can help with that participation; it can give community members a way to describe their experiences and lend credibility to their claims.367 But the apparent finality of maps also can curtail conversations rather than facilitating them.368 That raises questions about what the role of EJ-mapping applications should be where achieving fast and approximate justice is not the main goal. We suggest two uses in those situations·one of which is fairly obvious and the other less so.

The obvious use is that EJ-mapping can be an important part of a portfolio of information that helps decision-makers, even if the mapping does not play a decisive or even a clearly specified role. That may be especially appropriate in settings like environmental impact analysis or land use planning, where the goal is to describe an action and its consequences or to set forth a broad community vision.369 But even where regulators are writing permits or agencies are issuing grants, context often matters, and EJ-maps can be starting points for understanding and discussing that context. There is a danger, of course, if no clear obligations attach to that discussion. EJ-mapping applications could turn out to be most prominent in realms where people produce pages of detailed analyses and amorphous commitments, with none of it adding up to any real consequence.370 Nevertheless, a meaningful response to a problem sometimes starts just with acknowledging and discussing it, even if the implications of that discussion may remain uncertain.

The other, more substantive, possible use for EJ-mapping applications is to establish rebuttable presumptions. For example, lawmakers might decide that every major air-pollution source in a mapped disadvantaged community should meet heightened pollution-control standards, but they could allow

facilities to escape those standards if they demonstrate that their emissions do not affect the area regulators seek to protect. Similarly, an EJ-mapping application might make initial eligibility determinations for grant funding, but initially excluded communities still could establish eligibility with more specific evidence. Using the EJ-mapping application to set default outcomes takes advantage of their efficiency and transparency and can give discussions about decisions at least a head start. But it also leaves flexibility for addressing problems with maps or for taking discussions to a more nuanced level.

A final key point is that none of these roles is likely to emerge organically. One might hope that the potential utility of EJ-mapping applications will naturally draw in staff-level regulators. But that has not been happening. Instead, agency staff are developing and using EJ-mapping applications where statutes, executive orders, agency guidance, or clear directives from high-level agency officials tell them to do so.371 For agency staff·even those that are enthusiastic about using maps·mandates matter; they bolster the credibility of the maps and help with access to data and funding.372 And there is ample room for additional directives. Across the environmental law subfields we analyzed, important questions about when EJ-mapping applications should be used and, crucially, how the maps should affect regulatory outcomes often remain to be addressed.

A second lesson from Part IIÊs findings is that integrating race into EJ-mapping raises thorny questions. Here, we offer several reasons why we think that integration is unwise and why we would not even advise justifying race-neutral mapping applications on explicitly race-conscious grounds.

The first and most important reason is litigation risk. Critics of race-blind mapping have implied that this risk is modest and that a reluctance to use race reflects „an over-sensitivity,‰ in one activistÊs words.373 They might be right; there is no certainty

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that a race-conscious map will be struck down or even that it will be challenged.

But the odds of challenges are dangerously high. This clearly is an area of interest for conservative-activist attorneys, so counting on an absence of litigation is unwise.374 And while scholars have crafted thoughtful and persuasive accounts explaining how a sympathetic judge should reconcile race-conscious decision-making with even the Supreme CourtÊs latest holdings,375 such judicial sympathies are a lot to assume. Conservative judicial activism is ascendant, the trend lines are clear; and a decision coming out the other way would be easy for many judges to write.376 Perhaps equally important, even the prospect of litigation risk could provide an easy excuse for skeptical·or openly hostile·political leaders or agency administrators to abandon programs. And an enjoined or abandoned program cannot help anyone.

The second reason is that the potential gains from taking these risks are probably small. Measuring those potential gains is somewhat difficult, but in general, arguments in favor of including race-related variables rest on two often-implicit claims: first, that the outcomes produced by race-conscious and raceneutral tools would be significantly different from those produced by race-neutral input variables; and second, that those differences would be for the better. To date, only a limited set of studies has confronted the former question.377 The latter question implicates one of the most difficult issues in social- and racial-justice law.

The few studies comparing outcomes have not found major differences between race-conscious and race-neutral mapping applications. Instead, the outcomes produced by race-neutral mapping applications are highly correlated with race.378 That

should not be surprising. If environmental exposures, economic opportunities, and public health vulnerabilities all are correlated with race, as ample research demonstrates they are, then a mapping program that uses environmental, economic, and public health input variables is also likely to produce race-correlated results.379 Some differences will exist at the margins,380 but the group of census tracts that race-conscious tools identify as disadvantaged will not be very different from the group of census tracts that race-blind tools identify as disadvantaged.381 That is especially true because no one is proposing to make minority status the sole precondition for protection or funding.382 Even with race-conscious EJ-mapping applications, minority

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status is just one input variable, and white communities with high scores on other metrics still can qualify.383

Asking whether the modestly different outcomes produced by race-conscious applications are better raises difficult questions about the relative importance of emphasizing class or race. After all, to put the question in stark and concrete terms, the issue is likely to be whether a poorer and predominantly white community is more deserving of funding or greater regulatory protection than a wealthier but predominantly minority community.384 Here, advocates of including race have powerful arguments in their favor.385 Ample evidence shows that, at all income levels, race matters in many ways.386 And the vulnerabilities associated with race arenÊt just to environmental pollution or present-day poverty, which other input variables try to capture; instead, they would likely include factors that have no correlate in the EJ-mapping exercise.387 Additionally, using race as an input variable is a way of openly acknowledging histories of racial discrimination. To try to account for that history through non-racial variables, in other words, may be to deprive environmental justice of narrative accuracy and force.

Nevertheless, the counterarguments also are compelling. While race matters, class-based discrimination also is all too

real,388 and eliding it from the environmental justice story could alienate potential allies.389 That loss of bridge-building capacity could be important. As Sheila Foster and Luke Cole have pointed out in their iconic history of the environmental justice movement, multiracial coalitions are often key to political and legal success.390 Consequently, it may often be wiser, not just in litigation but also in policy debates, to argue that poverty, low educational attainment, linguistic isolation, adverse health indicators, and environmental exposure are concerning when they coalesce upon any population of people. In a political environment where all efforts at redistributive governance are susceptible to attacks, and where race-conscious redistributive programs are especially endangered, that increase in defensibility could be crucially important to programsÊ political and legal survival.391 That political and legal vulnerability means that race-conscious mapping could generate another painful tradeoff. Communities that are poor and predominantly people of color have better odds of getting help with race-blind maps. They are still highly likely to qualify for whatever benefits or protections an EJ-mapping-reliant program allocates, and the reduction in legal vulnerability means that the program is much more likely to continue to exist. Consequently, the possible benefits of extending programs to more middle-class communities of color may come with heightened risks to people who need those programs the most.

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As previous Sections of this Article have discussed, two of our most important observations are, first, that EJ-mapping applications are being used in a wide and growing variety of settings and, second, that they are making a difference, sometimes, in allocations of resources and regulatory protections.392 Yet we also observed that maps often highlight, without resolving, even more difficult questions. It is one thing, for example, for maps to identify disadvantaged communities, but that does not clarify what share of resources those communities should receive or to what degree regulatory protections should be heightened.393 Similarly, maps may identify communities where an environmental justice analysis should occur, as is now legally required in New York and New Jersey, but demanding an analysis is quite different from determining what level of impact qualifies as excessive.394 Nor does mapping a community as disadvantaged tell decision-makers or community members what level of procedural participation will count as adequate.395

One striking feature of the mapping-reliant regulatory programs we reviewed is how little many of them have done to answer these questions. For some programsÊ important thresholds, policymakers or legislators have just chosen a number, with little explanation of why that number makes sense.396 Other laws, like New YorkÊs legislation, caution against disproportionate impacts without clarifying what amounts to disproportion.397

Michigan energy regulators have consistently told regulated utilities to include environmental justice planning in their submissions, without offering much clarity about what those analyses should say or about how they should impact decisions.398 Likewise, California, as of this writing, has yet to develop standards for determining, in CEQA studies, when effects on disadvantaged communities should qualify an environmental impact as significant.399 There are reasons for this reticence; the core question beneath each of these issues is how much inequality we are willing to tolerate·or, alternatively, how much we will do to redress the sins of the past. These are hard questions to acknowledge, let alone answer. But if environmental justice is taken seriously, these questions are unavoidable.

To say that is not to critique the maps. It generally is not their job to answer these questions; instead, they serve to highlight situations in which these questions should be confronted. But the challenge still is worth flagging, for if the whole exercise of mapping environmental justice is to hold value, policymakers will have to decide how much weight to give to the information maps help reveal. The greatest value of EJ-mapping applications may be their ability to provoke discussions about what environmental justice really means and how much regulators and regulated actors are committed to it. But there should be no illusions that maps will make those discussions easy to resolve.

CONCLUSION

Decades ago, the Home Owners Lending Corporation (HOLC) set out to map American cities, grading neighborhoods on a scale from „best‰ to „hazardous.‰400 The mapping project was unabashedly based on race and class, and it had real consequences; neighborhoods with lower scores had less access to credit, which led to lasting impacts on economic development.401 Even today, neighborhoods that received low HOLC scores tend to lag behind their higher-graded counterparts in economic

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achievement.402 That history is a stark reminder of the ability of maps to perpetuate injustice·and to do so while seeming authoritative and neutral.

But maps can advance justice as well as injustice, and the current generation of EJ-mapping applications is beginning to demonstrate the possibilities. As we have shown, EJ-mapping applications are being deployed in a variety of settings, and the applications have taken on real significance in distributing resources and allocating regulatory requirements. More generally, they provide all participants in environmental decision-making with information that can allow discussion of important topics that once might have seemed too abstract to tackle. That does not mean EJ-mapping applications are perfect tools; they have their inevitable and significant flaws, and the very human choices that go into mapping will inevitably be contestable. We also caution that payoffs from including race as an input variable, as many advocates have urged mapmakers to do, are not worth the associated litigation risks. Finally, EJ-mapping applications are not complete solutions to environmental justice problems; instead, they are potential stepping stones toward greater equity, with the hardest steps often still to be taken and with the whole exercise facing profound challenges. But even with those caveats, they hold promise.

--- FOOTNOTES ---

†

Harry D. Sunderland Professor of Law and Associate Dean for Research, University of California College of the Law, San Francisco. The authors thank Eddie Ahn, Kiran Chawla, Matthew Coles, Veronica Eady, Daniel Ho, Alice Kaswan, Emily Murphy, Sharmila Murthy, Moira OÊNeill, Derek Ouyang, Natalia Ramirez Lee, Radhika Rao, Shelley Saxer, Kelsea Sona, Cliff Villa, Gina Warren, Joan Williams, Leehi Yona, participants in the online Environmental Law ProfessorsÊ Workshop and AALS Environmental Works-in-Progress Workshop for helpful conversations at formative stages and comments on earlier drafts, and the students at Minnesota Law Review for excellent editorial work. †† Agency Attorney, Litigation & Program Counseling Unit of the Office of Legal Affairs, HRA/DSS City of New York. Copyright © 2026 by Dave Owen & Gaby Salazar Kitner.

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1. Rise St. James v. La. DepÊt of EnvÊt Quality, No. 694,029 (La. Dist. Ct.

9/14/2022), revÊd, 2023-0578 (La. App. 1 Cir. 1/19/24), 383 So. 3d 956, 961.

2. See Maryum Jordan, Reflections on Fighting Environmental Racism in St. John the Baptist Parish, Louisiana, 57 HARV. C.R.-C.L. L. REV. 439, 446 (2022) (describing Cancer Alley). See generally Robert R. Kuehn, Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic, 4 WASH. U. J.L. & POLÊY 33 (2000) (describing a lengthy legal battle over another chemical plant).

3. See Kimberley A. Terrell & Gianna St. Julien, Air Pollution is Linked to Higher Cancer Rates Among Black or Impoverished Communities in Louisiana, ENVÊT RSCH. LETTERS, Jan. 13, 2022, at 8 („Estimated cancer risk from air toxics . . . was elevated in southwest Louisiana and in the area known as Cancer Alley . . . .‰).

4. See Rise St. James, 383 So. 3d at 967 (describing community de-

mographics).

5. Id. at 967–69 (describing the administrative process and the filing of

the case).

6. Most of those arguments prevailed at the trial court level and lost on appeal. See id. at 961 („[W]e reverse the judgment of the district court, reinstate the permits, and render judgment dismissing the plaintiffsÊ petition for judicial review.‰).

7. See Rise St. James v. La. DepÊt of EnvÊt Quality, No. 694,029, slip op. at 24–27 (La. Dist. Ct. 9/14/22), revÊd, 2023-0578 (La. App. 1 Cir. 1/19/24), 383 So. 3d 956, 961; see also EJScreen: Environmental Justice Screening and Mapping Tool, U.S. ENVÊT PROT. AGENCY, https://web.archive.org/web/20250131021 428/https://www.epa.gov/ejscreen [https://perma.cc/Y52S-R5KV].

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8. See Margot Bordne & Clinton Johnson, Charles Lee: Environmental Justice Leader Uses Maps to Reveal Injustices, ESRI: BLOG (June 30, 2021), https://www.esri.com/about/newsroom/blog/charles-lee-environmental-justiceleader [https://perma.cc/7F7R-K3ED] (describing the first use and development of mapping in environmental justice research); infra Part I (providing general background on the environmental justice movement and the ways its goals turned the movement toward mapping).

9. See Juliana Maantay, Mapping Environmental Injustices: Pitfalls and Potential of Geographic Information Systems in Assessing Environmental Health and Equity, 110 ENVÊT HEALTH PERSPS. 161, 161 (2002) („Environmental injustice can be defined as the disproportionate exposure of communities of color and the poor to pollution, and its concomitant effects on health and environment . . . .‰). 10. See Clifford J. Villa, No „Box to Be Checked‰: Environmental Justice in Modern Legal Practice, 30 N.Y.U. ENVÊT L.J. 157, 164–68 (2022) (discussing definitions of environmental justice). EPA has defined environmental justice, in part, as „the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.‰ Learn About Environmental Justice, U.S. ENVÊT PROT. https://web.archive.org/web/20250120145955/https://www.epa.gov/ AGENCY, environmentaljustice/learn-about-environmental-justice [https://perma.cc/ 76AM-YB9S]. 11. See Maantay, supra note 9, at 161 („Within the past decade it has become increasingly prevalent to try to map instances of environmental injustice . . . .‰).

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12. The environmental justice literature uses multiple terms to describe environmental justice communities. See Danielle Stokes, From Redlining to Greenlining, 71 UCLA L. REV. 628, 630 n.2 (2024) („These groups have also been termed frontline communities, environmental justice communities, or disadvantaged communities.‰). We sometimes use „disadvantaged communities‰ because that phrase is often used by federal and state statutes, and we sometimes use „environmental justice communities‰ as a more generic term. Either phrase has its problems; the word „community‰ begs questions about whether the geographic units that get mapped really are communities in a traditional sense of the word. See generally Richard C. Schragger, The Limits of Localism, 100 MICH. L. REV. 371 (2001) (exploring the complexities of the word „community‰). 13. See Rachel Morello-Frosch, Miriam Zuk, Michael Jerret, Bhavna Shamasunder & Amy D. Kyle, Understanding the Cumulative Impacts of Inequalities in Environmental Health: Implications for Policy, 30 HEALTH AFFS. 879, 879 (2011) („Research is beginning to show how the cumulative effects of social and environmental stressors can work in combination to produce health disparities.‰). 14. See id. („[T]heir neighborhoods are beset by . . . air and water pollution[,] . . . poverty, racial discrimination, crime, malnutrition, and substance abuse . . . .‰). 15. Related Tools, U.S. ENVÊT PROT. AGENCY, https://web.archive .org/web/20250119005649/https://www.epa.gov/ejscreen/related-tools [https:// perma.cc/6WXS-TT37] (describing other federal applications); Environmental Data Mapping Tools, GEOPLATFORM.GOV, https://web.archive.org/web/2024120 5135011/https://static-data-screeningtool.geoplatform.gov/data-versions/1.0/ data/score/downloadable/1.0-climate-and-environmental-burden-tool -comparison.pdf [https://perma.cc/MQP6-P9MF] (comparing six different agenciesÊ tools). The GeoPlatform.gov chart lists six tools, but one focuses on climaterelated features·not on the broader range of environmental, health, and socioeconomic indicators that typifies other EJ-mapping applications. See Climate Mapping for Resilience and Adaptation, NATÊL OCEANIC & ATMOSPHERIC ADMIN., https://livingatlas.arcgis.com/assessment-tool/search [https://perma.cc/ G34W-SVZV] (providing projections of various climate hazards).

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16. See Related Tools, supra note 15.

17. See, e.g., Hoosier Resilience Index, IND. UNIV., https://hri.eri.iu.edu [https://perma.cc/AB9T-M8AK]; Michigan Releases Draft of Its First Environmental Justice Screening Tool; SEAS Alumni Contributed to ToolÊs Development, SCH. FOR ENVÊT & SUSTAINABILITY, UNIV. OF MICH. (Apr. 11, 2022), https://seas.umich.edu/news/michigan-releases-draft-its-first-environmentaljustice-screening-tool-seas-alumni-contributed [https://perma.cc/MKC8-2DD5]. 18. See infra notes 110–12 and accompanying text (discussing the common features of EJ-mapping applications). EJScreen uses census blocks, which are finer-grained analysis units. EJScreen Technical Documentation for Version 2.3, U.S. ENVÊT PROT. AGENCY 4 (2024), https://www.epa.gov/system/files/ [https://perma.cc/JWH7 documents/2024-07/ejscreen-tech-doc-version-2-3.pdf -VJZT]. 19. See infra notes 113–17 and accompanying text.

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20. The red areas have the highest percentile scores which correspond to the highest cumulative burdens, and the green areas have the lowest scores. CalEnviroScreen 4.0, CAL. ENVÊT PROT. AGENCY: OFF. OF ENVÊT HEALTH & HAZARD ASSESSMENT, https://experience.arcgis.com/experience/11d2f5228 2a54ceebcac7428e6184203/page/CalEnviroScreen-4_0 [https://perma.cc/8T33 -8R88].

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21. Id. (click the Search icon; then click the drop-down menu; then select „Census Tract Search‰; then search for „6037294120‰; then click the „Dock‰ button). 22. See Charles Lee, A Game Changer in the Making? Lessons from States Advancing Environmental Justice Through Mapping and Cumulative Impact Strategies, 50 ENVÊT L. REP. 10203, 10204 (2020) („[W]e may in fact be witnessing the emergence of yet another Âtrue game changerÊ for advancing EJ in the United States.‰).

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23. See David Konisky, Daniel Gonzalez & Kelly Leatherman, Mapping for Environmental Justice: An Analysis of State Level Tools, IND. UNIV. 21–22 https://scholarworks.iu.edu/iuswrrest/api/core/bitstreams/7b00234a (2021), -3079-4874-aa6f-28cdaf9ab386/content (describing uses for permitting, grant allocation, and public engagement). 24. See generally U.S. GOVÊT ACCOUNTABILITY OFF., GAO-19-543, ENVIRONMENTAL JUSTICE: FEDERAL EFFORTS NEED BETTER PLANNING, COORDINATION, AND METHODS TO ASSESS PROGRESS (2019) (describing minimal efforts).

[https://perma.cc/TD7P-WXD8]

25. Lee, supra note 22, at 10204; see Charles Lee, Confronting Disproportionate Impacts and Systemic Racism in Environmental Permitting, 51 ENVÊT L. REP. 10207, 10208 (2020) („[T]he emergence of EJ mapping tools that examine impacts in a cumulative manner takes on a truly pivotal significance.‰); see also Bordne & Johnson, supra note 8 (describing Charles LeeÊs influence). 26. See Konisky et al., supra note 23, at 2–4 (listing state and federal tools). 27. See, e.g., 40 C.F.R. § 1508.1(f) (2025) (recommending, for National Environmental Policy Act analyses, the use of environmental-justice screening tools to identify environmental justice communities). 28. See Exec. Order No. 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025) („The Biden Administration forced illegal and immoral discrimination programs, going by the name Âdiversity, equity, and inclusionÊ (DEI), into virtually all aspects of the Federal Government . . . .‰).

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29. See, e.g., Sandra G. Mayson, Bias in, Bias out, 128 YALE L.J. 2218, 2227–30 (2019) (describing an explosion of interest in, and concern about, the use of computer-based algorithms in criminal justice decision-making). See generally Jennifer D. Oliva, Dosing Discrimination: Regulating PDMP Risk Scores, 110 CALIF. L. REV. 47 (2022) (arguing that computer-based algorithms lead to systematic discrimination in the provision of health care). 30. See, e.g., Mayson, supra note 29, at 2227–30 (summarizing concerns); Dave Owen, Mapping, Modeling, and the Fragmentation of Environmental Law, 2013 UTAH L. REV. 219, 246 (noting the seductive potential of colorful maps); James D. Fine & Dave Owen, Technocracy and Democracy: Conflicts Between Models and Participation in Environmental Law and Planning, 56 HASTINGS L.J. 901, 922–38 (2005) (describing the limitations of models, the implications of those limits, and the affected groups); Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103, 103 (arguing that quantitative risk assessment, as currently employed, „disproportionately places the burden of pollution and environmental hazards on racial minorities and low-income groups‰). 31. See Lisa Friedman, White House Takes Aim at Environmental Racism, but WonÊt Mention Race, N.Y. TIMES (Feb. 15, 2022), https://www.nytimes .com/2022/02/15/climate/biden-environment-race-pollution.html [https://perma .cc/HP2Q-K44P] (quoting environmental justice advocate Robert Bullard as saying, „[i]f youÊre leaving race out, how are you going to fix this?‰); Letter from Sara McTarnaghan, Senior Rsch. Assoc. & Lead of Climate & Cmtys. Prac. Area, Urb. Inst., et al., to Council on EnvÊt Quality 2–3 (Apr. 25, 2022), https://www.urban.org/research/publication/comment-letter-ceqs-climate-andeconomic-justice-screening-tool-beta-version [https://perma.cc/KR36-UT3Z] (faulting the Council on Environmental QualityÊs (CEQ) screening tool for omitting racial variables); Letter from Conservation L. Found. Mass. to Sharmila Murthy & Council on EnvÊt Quality Team 1–3, 7–13 (Apr. 25, 2022),

02_MIN_110_4_text.indd 1779 02_MIN_110_4_text.indd 1779

https://www.clf.org/wp-content/uploads/2022/05/2022.04.25-%E2%80%93-CEJ ST-CLF-Comment-Letter-CEJST-CEQ-1.pdf [https://perma.cc/K2DM-J9TL] (arguing for race-conscious mapping and appending a letter, signed by many law professors, arguing that race-conscious mapping is constitutional).

32. 143 S. Ct. 2141 (2023).

33. Id. at 2175. See generally Friedman, supra note 31 (explaining the potential risks of a race-conscious approach).

34. The legal-academic literature discussing EJ-mapping applications consists primarily of an Environmental Law Reporter article, published by Charles Lee, and several short-response papers. See generally Lee, supra note 22; John Faust, Laura August, Andrew Slocombe, Shankar Prasad, Walker Wieland, Vincent Cogliano & Carol Monahan Cummings, Comment, CaliforniaÊs Environmental Justice Mapping Tool: Lessons and Insights from Calenviroscreen, 51 ENVÊT L. REP. 10684 (2021); Hilary T. Jacobs & Benjamin Wilson, Comment, Mapping the Movement: The Future of Identifying and Addressing Cumulative Impacts, 51 ENVÊT L. REP. 10688 (2021); Laura Grier, Delia Mayor, Brett Zeuner & Paul Mohai, Comment, Community Input on State Environmental Justice Screening Tools, 52 ENVÊT L. REP. 10441 (2022). 35. See, e.g., 2024 Annual Report: Cap-and-Trade Auction Proceeds, CAL. CLIMATE INVS. 6 (2024), https://ww2.arb.ca.gov/sites/default/files/auction -proceeds/cci_annual_report_2024.pdf [https://perma.cc/9M9X-DBFP] (showing that seventy-six percent of California Climate InvestmentÊs funding benefited priority populations); Margaret Walls, Sofia Hines & Logan Ruggles, Implementation of Justice40: Challenges, Opportunities, and a Status Update, RES. FOR THE FUTURE 28 (2024), https://media.rff.org/documents/Report_24-01.pdf [https://perma.cc/K4H4-WKNJ] (describing multibillion-dollar expenditures).

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36. See Environmental Justice Program, CAL. ENVÊT PROT. AGENCY,

https://calepa.ca.gov/envjustice [https://perma.cc/36GJ-D55G]. 37. See, e.g., Darya Minovi, The Promise of Environmental Justice Screening Tools in Maryland and Beyond, CTR. FOR PROGRESSIVE REFORM (Apr. 20, 2021), https://progressivereform.org/cpr-blog/promise-environmental-justicescreening-tools-maryland-and-beyond [https://perma.cc/AD96-HBZF] („Though widely used by researchers and advocates, EPA EJSCREEN is not without faults.‰); Exec. Order No. 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025). 38. See infra notes 231–41 and accompanying text (describing the issues and complexities of using maps to display data). 39. See, e.g., infra notes 255–67 and accompanying text (discussing disagreements about the use of CalEnviroScreen in California Environmental Quality Act review).

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40. See Benjamin Q. Huynh, Elizabeth T. Chin, Allison Koenecke, Derek Ouyang, Daniel E. Ho, Mathew V. Kiang & David H. Rehkopf, Mitigating Allocative Tradeoffs and Harms in an Environmental Justice Data Tool, 6 NATURE MACH. INTEL. 187, 189 (2024) („[S]ubjective model decisions lead to allocative tradeoffs, and models can be manipulated accordingly . . . .‰). 41. See generally Clifford Villa, Remaking Environmental Justice, 66 LOY. L. REV. 469 (2020) (describing years of debates over how environmental justice should be defined). 42. See id. at 477 („[E]nvironmental justice itself has been subject to multiple and competing definitions over time.‰).

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A. A GEOGRAPHY-BASED MOVEMENT

43. See generally Owen, supra note 30 (describing environmental science and policyÊs reliance on spatially coded analyses).

44. For a much richer history, see LUKE W. COLE & SHEILA R. FOSTER, FROM THE GROUND UP: ENVIRONMENTAL RACISM AND THE RISE OF THE ENVIRONMENTAL JUSTICE MOVEMENT (2000). 45. See id. at 19–32 (describing this history); RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 145, 158–61 (2d ed. 2023) (same). 46. See Dollie Burwell & Luke W. Cole, Environmental Justice Comes Full Circle: Warren County Before and After, 1 GOLDEN GATE U. ENVÊT L.J. 9, 10 (2007) („The Warren County protests of 1982 are seen by many as the spark that lit the Environmental Justice Movement.‰).

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47. See generally id. (chronicling the history of the protests). 48. See generally Toxic Wastes and Race in the United States, UNITED CHURCH OF CHRIST: COMMÊN FOR RACIAL JUST. (1987), https://www.ucc.org/wp -content/uploads/2020/12/ToxicWastesRace.pdf [https://perma.cc/VR4U-YKPF]; U.S. GEN. ACCT. OFF., GOA/RCED-83-168, SITING OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH RACIAL AND ECONOMIC STATUS OF SURROUNDING COMMUNITIES (1983). 49. See Burwell & Cole, supra note 46, at 36–37 („Growing out of his experiences in the protests, Reverend Ben Chavis coined the term Âenvironmental racism,Ê which to this day is a rallying cry against environmental injustice around the world.‰). 50. See Robert D. Bullard, Overcoming Racism in Environmental Decisionmaking, 36 ENVÊT: SCI. & POLÊY FOR SUSTAINABLE DEV. 10, 11 (1994) („If a community is poor or inhabited largely by people of color, there is a good chance that it receives less protection than a community that is affluent or white.‰); Jiawen Liu, Lara P. Clark, Matthew J. Bechle, Lianne Sheppard, Anjum Hajat, Sun-Young Kim, Adam A. Szpiro & Julian D. Marshall, Disparities in Air Pollution Exposure in the United States by Race/Ethnicity and Income, 1990–2010, 129 ENVÊT HEALTH PERSPS. 127005-1, 127005-12 (2021) („[I]n all six cases [the] most exposed group was a racial/ethnic minority group.‰); Lara Cushing, John Faust, Laura Meehan, Rose Cendak, Walker Wieland & George Alexeeff, Racial/Ethnic Disparities in Cumulative Health Impacts in California: Evidence from a Statewide Environmental Justice Screening Tool (CalEnviroScreen 1.1), 105 AM. J. PUB. HEALTH 2341, 2341 (2015) („Environmental health hazards disproportionately burden communities of color in California.‰); Robert D. Bullard, Paul Mohai, Robin Saha & Beverly Wright, Toxic Wastes and Race at Twenty, 1987-2007, UNITED CHURCH OF CHRIST, at xi (2007), https://www.ucc.org/wpcontent/uploads/2021/03/toxic-wastes-and-race-at-twenty-1987-2007_Part1.pdf [https://perma.cc/4HMV-GXWH] („[S]ignificant racial and socioeconomic disparities persist in the distribution of the nationÊs commercial hazardous waste facilities.‰).

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51. See Jonathan Skinner-Thompson, Procedural Environmental Justice, 97 WASH. L. REV. 399, 412–14 (2022) (describing ways in which environmental decision-making can be exclusive); Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVÊT L.J. 3, 5 (1998) („[C]urrent administrative processes fail to effectively incorporate an important form of public participation in decision-making·the participation by communities bearing the greatest environmental risks.‰). 52. See Letter from Richard Moore, Co-Dir., Sw. Org. Project, et al., to Jay D. Hair, President, NatÊl Wildlife FedÊn 1990), https://www.ejnet.org/ej/swop.pdf [https://perma.cc/44JE-Y7LC] („Your organizations continue to support and promote policies which emphasize the clean-up and preservation of the environment on the backs of working people in general and people of color in particular.‰); Matty Durlin, The Shot Heard Round the West, HIGH COUNTRY NEWS (Feb. 1, 2010), https://www.hcn.org/issues/42-2/theshot-heard-round-the-west the SWOP letter and its aftermath). 53. See Morello-Frosch et al., supra note 13, at 879 („Advocates for such communities have long argued that their neighborhoods are beset by multiple environmental stressors . . . .‰). 54. See id. („Research is beginning to show how the cumulative effects of social and environmental stressors can work in combination to produce health disparities.‰). 55. See Maantay, supra note 9, at 165 (noting the need to select a „geographic unit of analysis‰).

[https://perma.cc/LJ8M-7E6U]

(describing

(Mar.

16,

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[O]nly 17.1% of the cityÊs solid waste sites are located in the southwest quadrant, where 53.3% of the Anglos live. Only 15.3% of the sites are located in the northwest quadrant, where 20.1% of the Anglos live. Thus, only 32.4% of the sites are located in the western half of the city, where 73.4% of the Anglos live. Furthermore, the plaintiffs argue, 67.6% of the sites are located in the eastern half of the city, where 61.6% of the minority population lives.60 The court went on to praise the plaintiffs for doing a „remarkable‰ job presenting evidence.61 And it criticized the siting decision.62 But it also rejected the plaintiffsÊ motion, and its reasons illustrate some of the challenges associated with EJ-

56. See generally id. (describing mapping efforts).

57. 482 F. Supp. 673 (S.D. Tex. 1979). 58. ROBERT D. BULLARD, DUMPING ENVIRONMENTAL QUALITY, at xiv (3d ed. 2018). 59. Id.

IN DIXIE: RACE, CLASS, AND

60. Bean, 482 F. Supp. at 678.

61. Id. at 680 n.8 („All parties, particularly counsel for the plaintiffs . . . did a remarkable job of garnering the facts to present to the Court.‰). 62. Id. at 681 („Sitting as the hearing examiner for TDH, based upon the evidence adduced, this Court would have denied the permit.‰).

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63. Id. at 680. 64. See id. at 679 („If we focus on census tracts, rather than on halves or quadrants of the city, we can see with more particularity where the solid waste sites are located.‰). 65. See id. at 680 (explaining that to select an appropriate scale of analysis, the court needed to know the area affected by a solid waste facility).

66. 145 F. Supp. 2d 446 (D.N.J. 2001). This decision was part of a longer saga. See generally Brendan Cody, Note, South Camden Citizens in Action: Siting Decisions, Disparate Impact Discrimination, and Section 1983, 29 ECOLOGY L.Q. 231 (2002) (describing the litigation). 67. See S. Camden Citizens in Action, 145 F. Supp. 2d at 450–51. 68. Id. 69. Id. at 459–60. 70. Id. at 461. 71. Id. at 491–92.

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72. Id. at 492. 73. Id. at 492–93. 74. See Alexander v. Sandoval, 532 U.S. 275 (2001); Cody, supra note 66, at 243–47 (describing the series of decisions). 75. See S. Camden Citizens in Action, 145 F. Supp. at 505 (granting a preliminary injunction and vacating the permits). 76. See id. at 491–93; Bean v. Sw. Waste Mgmt. Corp., 482 F. Supp. 673, 678 (S.D. Tex. 1979). 77. See, e.g., Toxic Wastes and Race in the United States, supra note 48, at 23; see also Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 ECOLOGY L.Q. 1, 3–9 (1997) (summarizing early studies and associated debates). 78. See Fine & Owen, supra note 30, at 967–68 (explaining how computermodel-driven decision-making processes can be exclusive). 79. See Luke W. Cole, Macho Law Brains, Public Citizens, and Grassroots Activists: Three Models of Environmental Advocacy, 14 VA. ENVÊT L.J. 687, 703– 05 (1995) (warning against advocacy models that empower experts rather than communities); Skinner-Thompson, supra note 51, at 412 (explaining how technocratic decision-making can be exclusive).

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80. See David L. Faigman, John Monahan & Christopher Slobogin, Group to Individual (G2i) Inference in Scientific Expert Testimony, 81 U. CHI. L. REV. 417, 420 (2014) (describing the pervasive gaps between researchersÊ pursuit of generalities and legal decision-makersÊ needs for case-specific determinations). 81. See generally Morello-Frosch et al., supra note 13, at 882–84 (explaining the importance of cumulative impacts). 82. See Kirsten Schwarz, Michail Fragkias, Christopher G. Boone, Weiqi Zhou, Melissa McHale, J. Morgan Grove, Jarlath OÊNeil-Dunne, Joseph P. McFadden, Geoffrey L. Buckley, Dan Childers, Laura Ogden, Stephanie Pincetl, Diane Pataki, Ali Whitmer & Mary L. Cadenasso, Trees Grow on Money: Urban Tree Canopy and Environmental Justice, PLOS ONE, Apr. 1, 2015, at 1, 2. 83. See, e.g., Chona Sister, Jennifer Wolch & John Wilson, Got Green? Addressing Environmental Justice in Park Provision, 75 GEOJOURNAL 229, 236 (2010) (finding disparities in park provision in Los Angeles). 84. See Bruce Mitchell & Juan Franco, HOLC „Redlining‰ Maps: The Persistent Structure of Segregation and Economic Inequality, NATÊL CMTY. REINVESTMENT COAL. 5 (2018), https://ncrc.org/wp-content/uploads/dlm_ uploads/2018/02/NCRC-Research-HOLC-10.pdf [https://perma.cc/D4JD-XHF4] (showing that many poorer communities with high minority populations were historic sites of discrimination in credit access).

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B. THE EMERGENCE OF EJ-MAPPING APPLICATIONS

85. See Single-Family Zoning Analysis, OTHERING & BELONGING INST. (May 1, 2023), https://belonging.berkeley.edu/single-family-zoning-analysis [https://perma.cc/64AH-H64Z]. 86. See generally Sharon M. Dietrich, When Working IsnÊt Enough: LowWage Workers Struggle to Survive, 6 U. PA. J. LAB. & EMP. L. 613 (2004) (describing challenges faced by low-wage workers). 87. See, e.g., Emily R.D. Murphy, Brains Without Money: Poverty as Disabling, 54 CONN. L. REV. 699, 718 (2022) („To date, the weight of the evidence suggests that poverty is a contributing cause of cognitive deficits in adults and differences in brain development in children.‰); James H. Price, Jagdish Khubchandani & Fern J. Webb, Poverty and Health Disparities: What Can Health Professionals Do?, 19 HEALTH PROMOTION PRAC. 170, 171–72 (2018) (describing the impacts of poverty on oneÊs health). 88. See Lee, supra note 22, at 10208 („[N]obody knew how to articulate the concept of disproportionate impacts in an empirically based manner that accurately reflects the lived experiences of overburdened communities and can support analytically rigorous methodologies for integrating it into government programs.‰). 89. See generally Shannon R. Murphy, Shankar B. Prasad, John B. Faust & George V. Alexeeff, Community-Based Cumulative Impact Assessment: CaliforniaÊs Approach to Integrating Nonchemical Stressors into Environmental Assessment Practices, in CHEMICAL MIXTURES AND COMBINED CHEMICAL AND NONCHEMICAL STRESSORS: EXPOSURE, TOXICITY, ANALYSIS, AND RISK 515, 520–22 (Cynthia V. Rider & Jane Ellen Simmons eds., 2018) (summarizing the process of developing CalEnviroScreen). 90. See id. at 516; CAL. GOVÊT CODE § 65040.12(e) (West 2026).

91. Murphy et al., supra note 89, at 516; see George Alexeeff, John Faust, Laura Meehan August, Carmen Milanes, Karen Randles & Lauren Zeise, Cumulative Impacts: Building a Scientific Foundation, CAL. ENVÊT PROT. AGENCY: (2010), OFF. OF ENVÊT HEALTH HAZARD ASSESSMENT,

vii

at

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https://oehha.ca.gov/sites/default/files/media/downloads/calenviroscreen/report/ cireport123110.pdf [https://perma.cc/EUG2-39EQ] (explaining the definition).

92. CAL. HEALTH & SAFETY CODE § 38565 (West 2026). 93. Under AB 32, the state auctions entitlements to emit greenhouse gases and allows trading of those entitlements. See Cal. Chamber of Com. v. St. Air Res. Bd., 216 Cal. Rptr. 3d 694, 699–700 (Cal. Ct. App. 2017) (describing the program). Many environmental-justice advocates opposed that program. See Alice Kaswan, Climate Change and Environmental Justice: Lessons from the California Lawsuits, 5 SAN DIEGO J. CLIMATE & ENERGY L. 1, 6, 10–19 (2014) (describing that opposition). The revenue-sharing provisions were part of a political compromise designed to reduce that opposition. See id. at 31–33.

94. CAL. HEALTH & SAFETY CODE § 39713(a) (West 2026) (enacted by California Global Warming Solutions Act of 2006: Greenhouse Gas Reduction Fund, ch. 830, 2012 Cal. Stat. 6543). 95. See Lee, supra note 22, at 10212 (describing academic involvement in creating the „Environmental Justice Screening Method,‰ which was a precursor to CalEnviroScreen). 96. See, e.g., Hannah Bloch-Wehba, Access to Algorithms, 88 FORDHAM L. REV. 1265, 1273–90 (2020) (describing concerning examples of governmental use of private, proprietary algorithms).

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97. See CalEnviroScreen 10th Anniversary, OFF. OF ENVÊT HEALTH HAZARD ASSESSMENT (May 16, 2023), https://storymaps.arcgis.com/stories/ 413d2b6be94c42ce85ada08499623a2a [https://perma.cc/M6Z9-YZLG]. 98. See id. (describing academic involvement). 99. See generally John Faust et al., California Communities Environmental Health Screening Tool, Version 1 (CalEnviroScreen 1.0): Guidance and Screening Tool, CAL. ENVÊT PROT. AGENCY: OFF. OF ENVÊT HEALTH HAZARD ASSESSMENT (2013), https://oehha.ca.gov/media/downloads/calenviroscreen/ report/042313calenviroscreen1.pdf [https://perma.cc/8TNX-3N3G]. 100. See CalEnviroScreen 10th Anniversary, supra note 97 (describing multiple changes and versions). 101. See CalEnviroScreen 4.0, OFF. OF ENVÊT HEALTH HAZARD ASSESSMENT (May 1, 2023), https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-40 [https://perma.cc/MA83-5RFX]. 102. See generally Chitra Balakrishnan, Yipeng Su, Judah Axelrod & Samantha Fu, Screening for Environmental Justice; A Framework for Comparing National, State, and Local Data Tools, URB. INST. 2–5 (2022), https://www .urban.org/sites/default/files/2022-11/Screening%20for%20Environmental%20 Justice-%20A%20Framework%20for%20Comparing%20National%2C%20State %2C%20and%20Local%20Data%20Tools.pdf [https://perma.cc/V674-W97S] (describing and comparing tools). 103. How Was EJScreen Developed?, U.S. ENVÊT PROT. AGENCY (last updated Jan. 9, 2024), https://web.archive.org/web/20240816121726/https:// [https://perma.cc/FV3B www.epa.gov/ejscreen/how-was-ejscreen-developed -LF8W]; see EJScreen: Environmental Justice Screening and Mapping Tool, U.S. ENVÊT PROT. AGENCY (last updated July 8, 2024), https://web.archive .org/web/20240816094042/https://www.epa.gov/ejscreen [https://perma.cc/ 5GVZ-J7T7]. 104. See, e.g., Explore the Map, CLIMATE & ENVÊT JUST. SCREENING TOOL, https://public-environmental-data-partners.github.io/j40-cejst-2/en/#3/33.47/ -97.5 [https://perma.cc/3C6H-6WPE]; Environmental Justice Index, AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY (last reviewed Mar. 15, 2024), https://web.archive.org/web/20240920095519/https://www.atsdr.cdc.gov/place [https://perma.cc/DS8H-K26F]; Tools, OFF. OF andhealth/eji/index.html ENERGY JUST. & EQUITY, DEPÊT OF ENERGY, https://web.archive.org/ [https://perma.cc/ web/20241003092321/https://www.energy.gov/justice/tools

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T42J-NGHX]; Transportation Disadvantaged Tracts (Archive), ARCGIS (last updated Feb. 4, 2024), https://www.arcgis.com/home/item.html?id=f3bf 5aca8fa6429da3900d453142d340 [https://perma.cc/QT57-3E8X]. 105. See Related Tools, U.S. ENVÊT PROT. AGENCY (last updated July 8, 2024), https://web.archive.org/web/20240816121717/https://www.epa.gov/ej screen/related-tools [https://perma.cc/GNE7-TYCX]. 106. Konisky et al., supra note 23, at 4 („Five states (Louisiana, Mississippi, Montana, Oregon, and Vermont) endorse EJSCREEN as their stateÊs environmental justice mapping tool . . . .‰). 107. Balakrishnan et al., supra note 102, at 12. 108. See, e.g., Off. of EnvÊt Just. Pub. Advoc., MiEJScreen 1.0: Michigan Environmental Justice Mapping and Screening Tool, MICH. DEPÊT OF ENVÊT, GREAT LAKES, & ENERGY 5 (2024), https://www.michigan.gov/egle/-/media/Project/ Websites/egle/Documents/Offices/OEJPA/MiEJScreen/Report-2024-07-MiEJ Screen-Technical.pdf [https://perma.cc/X5VB-2BH8] („Research conducted by graduate students from the University of Michigan also contributed to the toolÊs development . . . .‰). 109. See INViroScreen - Environmental Justice Map, IND. UNIV.: ENERGY JUST. LAB, https://energyjustice.indiana.edu/research/inviroscreen-ej-map.html [https://perma.cc/6MZD-CFXC]. 110. See Konisky et al., supra note 23, at 1. 111. Id. at 12 („Every tool we reviewed contained demographic information from the U.S. Census Bureau.‰). 112. See, e.g., Off. of EnvÊt Health Hazard Assessment, About CalEnviroScreen, CAL. ENVÊT PROT. AGENCY, https://oehha.ca.gov/calenviro screen/about-calenviroscreen [https://perma.cc/42Y8-6FR6] („CalEnviroScreen uses environmental, health, and socioeconomic information to produce scores for every census tract in the state.‰); Washington Environmental Health

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Disparities Map, WASH. STATE DEPÊT OF HEALTH, https://doh.wa.gov/data-and -statistical-reports/washington-tracking-network-wtn/Washington -environmental-health-disparities-map [https://perma.cc/6BUY-DUEE] (using census tracts as well). 113. See, e.g., MiEJScreen 1.0: Michigan Environmental Justice Mapping and Screening Tool, supra note 108, at 10 (explaining how category scores feed into the final score). 114. See Laura August, Komal Bangia, Laurel Plummer, Shankar Prasad, Kelsey Ranjbar, Andrew Slocombe & Walker Wieland, CalEnviroScreen 4.0, CAL. ENVÊT PROT. AGENCY: OFF. OF ENVÊT HEALTH HAZARD ASSESSMENT 26 (2021), https://oehha.ca.gov/media/downloads/calenviroscreen/report/calenviro screen40reportf2021.pdf [https://perma.cc/UTW6-ATLG]. 115. See id. at 13; MiEJScreen Scoring Matrix, MICH. DEPÊT OF ENVÊT, GREAT LAKES, & ENERGY, https://www.michigan.gov/egle/-/media/Project/ Websites/egle/Images/Maps-Data/ArcGIS-Online/MiEJScreen/MiEJScreenScore-Matrix.png [https://perma.cc/RC4S-BVTP]. 116. E.g., MiEJScreen 1.0: Michigan Environmental Justice Mapping and Screening Tool, supra note 108, at 8 (explaining how category scores feed into the final score); August et al., supra note 114, at 13 (explaining the same methodology). 117. August et al., supra note 114, at 200–07. 118. See Environmental Justice Populations in Massachusetts, MASS.GOV, https://www.mass.gov/info-details/environmental-justice-populations-in-

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massachusetts [https://perma.cc/M9AK-LMXP] (explaining an environmental justice population). 119. See id. 120. See generally August et al., supra note 114 (explaining how CalEnviroScreen works); Off. of EnvÊt Health Hazard Assessment, CalEnviroScreen 4.0 Indicator Maps, CAL. ENVÊT PROT. AGENCY, https://experience.arcgis.com/ experience/ed5953d89038431dbf4f22ab9abfe40d [https://perma.cc/FU67 -RR5P]. 121. See Using the Environmental Justice Index: A Resource for State, Local, and Tribal Government, AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY (Dec. 3, 2024), https://www.atsdr.cdc.gov/place-health/php/eji/usingthe-environmental-justice-index.html [https://perma.cc/PB9L-2XMJ] (explaining different types of mapping applications). 122. See Climate and Economic Justice Screening Tool: Frequently Asked Questions, COUNCIL ON ENVÊT QUALITY (2022), https://web.archive.org/web/ 20250116093553/https://www.whitehouse.gov/wp-content/uploads/2022/02/ CEQ-CEJST-QandA.pdf [https://perma.cc/SLA3-STJ3]. 123. See supra notes 22–27 and accompanying text. 124. See Lee, supra note 22, at 10210. 125. See Advancing Environmental Justice, U.S. ENVÊT PROT. AGENCY (last updated June 13, 2024), https://web.archive.org/web/20240927021250/ https://www.epa.gov/inflation-reduction-act/advancing-environmental-justice [https://perma.cc/6GXH-L8FQ] (summarizing the Inflation Reduction ActÊs environmental-justice funding streams). 126. See Manuel Pastor, J. Mijin Cha, Michael Méndez & Rachel MorelloFrosch, California Dreaming: Why Environmental Justice Is Integral to the Success of Climate Change Policy, PROC. NATÊL ACAD. SCIS., Feb. 12, 2024, at 1,

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3–4 (describing the origins of CaliforniaÊs climate-and-environmental-justice funding programs). 127. See Justice40: A Whole-of-Government Initiative, THE WHITE HOUSE, https://web.archive.org/web/20241202071417/https://www.whitehouse.gov/ environmentaljustice/justice40 [https://perma.cc/D37R-GZVP]. 128. See Alice Kaswan, Governing Grants, 85 OHIO ST. L.J. 1137, 1142 (2024) (describing new funding created by the Investment in Infrastructure and Jobs Act). 129. Amy Turner, The One Big Beautiful Bill Act: Considerations for Cities and Community Partners, COLUM. L. SCH.: CLIMATE L. (July 7, 2025), https:// blogs.law.columbia.edu/climatechange/2025/07/07/the-one-big-beautiful -bill-act-considerations-for-cities-and-community-partners Z9ZT-Z3ZJ]. 130. See, e.g., Faust et al., supra note 34, at 10686 (describing community „interest‰ in using CalEnviroScreen for permitting but also explaining potential limits on such uses). 131. See Brenda Mallory & David Neal, Practicing on Uneven Ground: Raising Environmental Justice Claims Under Race-Neutral Laws, 45 HARV. ENVÊT L. REV. 295, 321–25 (2021) (describing the enactment and contents of New JerseyÊs law); N.J. STAT. ANN. § 13:1D-160(a)(1) (West 2025). 132. See generally Michael B. Gerrard & Edward McTiernan, New York Adopts NationÊs Strongest Environmental Justice Law, N.Y. L.J. (May 9, 2023),

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https://www.law.com/newyorklawjournal/2023/05/09/new-york-adopts-nationsstrongest-environmental-justice-law [https://perma.cc/N4V7-RNYP]. 133. See Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 64 DUKE L.J. 133, 149–52 (2014) (describing ubiquitous permitting requirements). 134. See, e.g., About CRPE, CTR. ON RACE, POVERTY & ENVÊT, https://web .archive.org/web/20241201211814/https://crpe-ej.org/about [https://perma .cc/7Z4V-NVQC]; Environmental Justice, SIERRA CLUB, https://www.sierra club.org/environmental-justice [https://perma.cc/8FFD-L7E7]. 135. See, e.g., Equity and Environmental Justice, CAL. NAT. RES. AGENCY, https://resources.ca.gov/Initiatives/Equity-and-Environmental-Justice [https:// perma.cc/523Q-U9V3]; Governor Whitmer Accelerates Implementation of the MI Healthy Climate Plan with 2025 Budget Investments, MICH. DEPÊT OF ENVÊT, GREAT LAKES, & ENERGY (July 1, 2024), https://www.michigan.gov/ egle/newsroom/mi-environment/2024/07/01/governor-whitmer-accelerates -implementation-of-the-mi-healthy-climate-plan -GK44]. 136. See Alice Kaswan, Environmental Laws: Grist for the Equal Protection Mill, 70 U. COLO. L. REV. 387, 432 (1999) („To date, the environmental justice movementÊs use of the Equal Protection Clause as a mechanism for remedying political injustice has not been promising.‰); Villa, supra note 10, at 194–95. 137. See generally Jack Jones, Defending Race-Conscious Policy: New York StateÊs Criteria for Identifying Disadvantaged Communities, 49 COLUM. J. ENVÊT L. 425 (2024) (evaluating the threat that reverse-discrimination lawsuits pose to environmental justice laws). 138. See Villa, supra note 10, at 178–94 (describing sample cases).

[https://perma.cc/3B4K

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C. CONCERNS

139. See id. at 192 (noting that many court decisions reached under conventional environmental statutes do not mention their environmental justice context). 140. See generally U.S. GOVÊT ACCOUNTABILITY OFF., GAO-19-543, ENVIRONMENTAL JUSTICE: FEDERAL EFFORTS NEED BETTER PLANNING, COORDINATION, AND METHODS TO ASSESS PROGRESS (2019) (documenting anemic and uneven efforts). 141. See, e.g., Mayson, supra note 29, at 2228–31 (discussing the extensive literature on algorithmic bias in criminal law); Jessica Eaglin, Racializing Algorithms, 111 CALIF. L. REV. 753, 758 (2023) („[A]lgorithms sustain ways of thinking in society that legitimate race and racial hierarchy in the information age.‰). Private computer-driven decision-making also generates increasing concern. See, e.g., Oren Bar-Gill, Cass R. Sunstein & Inbal Talgam-Cohen, Algorithmic Harm in Consumer Markets, 15 J. LEGAL ANALYSIS 1 (2023). 142. See Pauline T. Kim, Race-Aware Algorithms: Fairness, Nondiscrimination and Affirmative Action, 110 CALIF. L. REV. 1539, 1541 (2022) („Numerous empirical studies have documented instances of machine learning algorithms producing race- or gender-biased results . . . .‰); Fine & Owen, supra note 30, at 967–68 (arguing that opaque, technical decision-making can limit participation by disadvantaged groups). 143. See Kim, supra note 142, at 1541. 144. See David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 YALE L.J. 616, 680 (2013) (arguing that agencies tend to be overly cautious rule makers).

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145. See, e.g., Mayson, supra note 29; Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 STAN. L. REV. 803 (2014); Aziz Z. Huq, Racial Equity in Algorithmic Criminal Justice, 68 DUKE L.J. 1043, 1094–95 (2019). 146. See, e.g., Kuehn, supra note 30 (raising concerns about quantitative risk assessment); Fine & Owen, supra note 30 (raising concerns about predictive air-quality modeling); Wendy Wagner, Elizabeth Fisher & Pasky Pascual, Misunderstanding Models in Environmental and Public Health Regulation, 18 N.Y.U. ENVÊT L.J. 293, 294–95 (2010) (warning against the tendency to treat models as „truth machines‰). 147. See, e.g., Mayson, supra note 29, at 2224. 148. See Crystal S. Yang & Will Dobbie, Equal Protection Under Algorithms: A New Statistical and Legal Framework, 119 MICH. L. REV. 291, 296 (2020). 149. See Brandon L. Garrett & Cynthia Rudin, The Right to a Glass Box: Rethinking the Use of Artificial Intelligence in Criminal Justice, 109 CORNELL L. REV. 561, 586–89 (2024) (describing „black box AI‰ and some of its perils). 150. See, e.g., Ngozi Okidegbe, To Democratize Algorithms, 69 UCLA L. REV. 1688, 1694 (2023) („[T]he use of algorithms often operates to entrench state practices that suppress the democratic participation of historically oppressed groups . . . .‰). But see Jon Kleinberg, Jens Ludwig, Sendhil Mullainathan & Cass R. Sunstein, Discrimination in the Age of Algorithms, 10 J. LEGAL ANALYSIS 1, 1 (2018) (arguing that algorithms can empower people by

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facilitating the detection of unlawful discrimination); Michael Selmi, Algorithms, Discrimination and the Law, 82 OHIO ST. L.J. 611, 615–18 (2021) (arguing that the legal literature overestimates threats and underestimates benefits). 151. See supra notes 95–98 and accompanying text. 152. See, e.g., MiEJScreen 1.0: Michigan Environmental Justice Mapping and Screening Tool, supra note 108 (explaining how MichiganÊs EJ-mapping application works); August et al., supra note 114 (explaining how CalEnviroScreen works). It also helps that, as models go, EJ-mapping applications are relatively simple and do not employ machine learning. 153. See, e.g., CalEnviroScreen 4.0, supra note 101. 154. Each fall, I experience this with my students who explore the concept of cumulative impacts using a CalEnviroScreen exercise. 155. See Huynh et al., supra note 40, at 187 (finding that CalEnviroScreen outcomes are highly sensitive to value-laden choices). 156. See Balakrishnan et al., supra note 102, at 16–17. 157. See id. at 13–14 (identifying multiple limitations of commonly used data sources).

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158. I base this statement on my own experience investigating contaminated sites. Pollutants were often limited to discrete areas, and some sites posed much higher exposure risks than others. 159. See CalEnviroScreen 4.0, supra note 101. Comparing the western San Joaquin Valley or southeastern California·both areas where a single census tract can be enormous·and the Los Angeles Basin, where tracts are tiny, revealing the inevitability of these issues. 160. See Ann E. Carlson, The Clean Air ActÊs Blind Spot: Microclimates and Hotspot Pollution, 65 UCLA L. REV. 1036, 1036–59 (2018) (explaining the importance of air pollution hotspots). 161. See Ben K. Greenfield, Jayant Rajan & Thomas E. McKone, A Multivariate Analysis of CalEnviroScreen: Comparing Environmental and Socioeconomic Stressors Versus Chronic Disease, ENVÊT HEALTH, Dec. 2017, at 13–14 (finding that negative health outcomes were more closely associated with CalEnviroScreenÊs socioeconomic indicators than with its environmental indicators). 162. See, e.g., Huynh et al., supra note 40, at 188 (observing that adding cancer metrics to CalEnviroScreen might seem justified but would reduce scores for Black communities). 163. See Villa, supra note 41, at 479–80 (asking whether the concept of environmental justice should extend to middle-class white retirees endangered by wildfire). See generally Khiara M. Bridges, Class-Based Affirmative Action, or the Lies That We Tell About the Insignificance of Race, 96 B.U. L. REV. 55 (2016) (arguing that a focus on class misses the critical significance of race).

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164. See, e.g., Off. of EnvÊt Health Hazard Assessment, Summary of Changes in CalEnviroScreen Version 4.0, CAL. ENVÊT PROT. AGENCY (2021) https://oehha.ca.gov/sites/default/files/media/downloads/calenviroscreen/ document/calenviroscreen40summaryofchangesf2021.pdf GM82-AFLT]. 165. See Fine & Owen, supra note 30, at 922 (noting that useful models must simplify). 166. See infra notes 255–67 and accompanying text (describing arguments that CalEnviroScreen is not an appropriate tool for use in California Environmental Quality Act reviews). 167. See Letter from Urb. Inst. to Council on EnvÊt Quality, supra note 31, at 2–3. 168. See Balakrishnan et al., supra note 102, at 14 (finding that most EJmapping applications present data on race and ethnicity and that many use those data to identify disadvantaged communities). 169. See Rajat Shrestha, Jillian Neuberger, Sujata Rajpurohit & Devashree Saha, 6 Takeaways from the CEQ Climate and Economic Justice Screening Tool, WORLD RES. INST. (Mar. 30, 2022), https://www.wri.org/technical -perspectives/6-takeaways-ceq-climate-and-economic-justice-screening-tool [https://perma.cc/SY9F-DNUY].

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170. See supra notes 45–54 and accompanying text. 171. See Villa, supra note 41, at 497–98 (describing environmental justice activistsÊ frustration with the Bush administrationÊs move toward a colorblind conception of environmental justice). 172. See Friedman, supra note 31 (quoting Dr. Robert BullardÊs concerns that colorblind approaches to environmental justice wonÊt fix anything); see also Shrestha et al., supra note 169 (arguing that CEJST should incorporate race, despite the legal risks). 173. In California, limits also come from the State Constitution, which prohibits „discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.‰ CAL. CONST. art. I, § 31. 174. 143 S. Ct. 2141 (2023). 175. See, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 297 (2013) (reversing a decision that had upheld the University of TexasÊs admissions policies, which made race a preferential factor); Ricci v. DeStefano, 557 U.S. 557, 557 (2009) (rejecting a cityÊs abandonment of a job-eligibility exam that would have resulted in a nearly all-white fire department); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) („The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.‰); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 200 (1995) (holding that all racial classifications, including those favoring traditionally disadvantaged groups, required strict scrutiny). 176. See Holman v. Vilsack, 117 F.4th 906, 909–10 (6th Cir. 2024) (summarizing the litigation, which involved multiple district court cases). 177. See id. at 909.

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178. See, e.g., Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1294 (M.D. Fla. 2021) (issuing a nationwide injunction against the program); Holman v. Vilsack, No. 21-105-STA, 2021 WL 2877915, at *13 (W.D. Tenn. July 8, 2021) (issuing a nationwide injunction); Faust v. Vilsack, 519 F. Supp. 3d 470, 478 (E.D. Wis. 2021); Miller v. Vilsack, No. 21-CV-0595-O, 2021 WL 11115194, at *9 (N.D. Tex. 2021). For a discussion of strict scrutiny in practice, see Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 794 (2006). 179. See Letter from Conservation L. Found. Mass. to Sharmila Murthy & Council on EnvÊt Quality Team, supra note 31, at 1–3, 7–13 (calling for, and defending the constitutionality of, race-conscious mapping). 180. See What We Fight For, PAC. LEGAL FOUND., pacificlegal.org [https://perma.cc/742F-WMF4]. 181. See generally Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 STAN. L. REV. 161 (2024) (describing and critiquing these cases). 182. See id. at 175–80 (explaining the argument for what she terms „endscolorblindness‰). 183. See id. at 169–71 (summarizing these arguments). 184. E.g., Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 21-CV-00296, 2022 WL 579809, at *9 (E.D. Va. Feb. 25, 2022) (ruling for the plaintiffs), revÊd, 68 F.4th

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864, 871 (4th Cir. 2023), cert. denied, No. 23-170, 601 WL 674659 (U.S. Feb. 20, 2024) (Alito, J., dissenting); AssÊn for Educ. Fairness v. Montgomery Cnty. Bd. of Educ., 560 F. Supp. 3d 929, 956 (D. Md. 2021) (denying a motion to dismiss and concluding that a facially neutral but racially motivated admissions plan might be unconstitutional). 185. See, e.g., Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 23, 2025) (attacking the idea that racially disparate outcomes merit governmental responses). 186. See West Virginia v. EPA, 142 S. Ct. 2587, 2630 (2022) (Kagan, J., dissenting) (accusing the Court of using special standards for „the bogeyman of environmental regulation‰). 187. See Balakrishnan et al., supra note 102, at 14–15 (noting that many· though, in the authorsÊ view, not enough·EJ-mapping applications use race as an input variable or identify racial equity as a motivation). 188. See Biber & Ruhl, supra note 133, at 149–52 (describing the central importance of permitting to environmental regulation). 189. See Juliana Maantay, Zoning Law, Health, and Environmental Justice: WhatÊs the Connection?, 30 J.L., MED. & ETHICS 161, 166 (2002).

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190. See Dave Owen, The Negotiable Implementation of Environmental Law, 75 STAN. L. REV. 137, 155–84 (2023) [hereinafter Owen, Negotiable Implementation] (describing the centrality of negotiated deals to environmental law); Dave Owen, Consultants, the Environment, and the Law, 61 ARIZ. L. REV. 823, 829–33 (2019) [hereinafter Owen, Consultants] (explaining the importance of environmental consultants). See generally Michael P. Vandenbergh, Private Environmental Governance, 99 CORNELL L. REV. 129 (2013) (explaining private entitiesÊ importance to environmental governance). 191. Press Release, Kylie Mason, St. of Fla.: Off. of AttÊy Gen., Attorney General Moody Leads Multistate Legal Action Demanding the EPA Rescind „Environmental Justice‰ (Apr. 16, 2024), https://www.myfloridalegal.com/newsrelease/attorney-general-moody-leadsmultistate-legal-action-demanding-epa-rescind -PJHM]. 192. See Exec. Order No. 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025). 193. See generally JILL LINDSEY HARRISON, FROM THE INSIDE OUT: THE FIGHT FOR ENVIRONMENTAL JUSTICE WITHIN GOVERNMENT AGENCIES (2019) (exploring reasons why agencies are reluctant to embrace environmental-justice initiatives).

Initiatives Harming States

[https://perma.cc/3CVQ

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194. See generally TRACY E. PERKINS, EVOLUTION OF A MOVEMENT: FOUR DECADES OF ENVIRONMENTAL JUSTICE ACTIVISM IN CALIFORNIA (2022) (describing many controversies). 195. To put the point conversely, California presents a most difficult case for a hypothesis that EJ-mapping applications are inconsequential. See Katerina Linos & Melissa Carlson, Qualitative Methods for Law Review Writing, 84 U. CHI. L. REV. 213, 225–26 (2017) (describing most-difficult cases). 196. New York has since laid claim to the (self-conferred) title of the most ambitious environmental justice law. See Gerrard & McTiernan, supra note 132 (describing New YorkÊs law). Because New YorkÊs law did not take effect until the end of 2024, it is not the primary focus of this study.

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A. POLITICALLY CONSERVATIVE STATES

197. We have heard anecdotal stories, for example, of agency emergency responders using mapping applications for quick introductions to areas where chemical releases have occurred. 198. See generally Vandenbergh, supra note 190 (explaining the importance of private decision-making). 199. See Exec. Order No. 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025) (undoing Biden administration social justice policies). 200. See supra notes 22–27 and accompanying text. 201. See infra Part II.C. 202. We searched databases for the terms EJScreen, EJ Screen, and CEJST.

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203. There are examples of EJ-mapping efforts in cities within conservative states. See, e.g., Executive Summary: Local Policy Recommendations Addressing Environmental Hazards and Inequitable Health Risks in HoustonÊs Complete Communities, AIR ALL. HOUS. (2019), https://airalliancehouston.org/wp [https://perma.cc/ -content/uploads/2019/12/AAH-Executive-Summary.pdf 76AD-RUBY]. 204. The only reference we found was from the administrative proceedings that led to the Rise St. James litigation. See generally Rise St. James v. La. DepÊt of EnvÊt Quality, No. C-694029 27, 2020 WL 1957650 (La. Dist. 2020) (order requiring the Louisiana Department of Environmental Quality to compile the record on appeal). 205. For some states, like Florida, we found no references at all. 206. E.g., Annual Monitoring Network Plan, TEX. COMMÊN ON ENVÊT QUALITY 246 (2024), https://www.tceq.texas.gov/downloads/air-quality/air -monitoring/network/historical/2024-amnp.pdf [https://perma.cc/EJ4Q-KWS8] (relying on EJ Screen for information about affected communities); Climate Pollution Reduction Grants Priority Action Plan for the State of Texas, TEX. COMMÊN ON ENVÊT QUALITY 4-1 (2024), https://www.epa.gov/system/files/ documents/2024-03/texas-pcap.pdf [https://perma.cc/7S87-DF27] (using CEJST in a brief „low income/disadvantaged communities analysis‰); Appendix Information for the Attainment Demonstration for the Cleveland, OH Moderate 2015 Ozone Nonattainment Area, OHIO ENVÊT PROT. AGENCY, https://epa.ohio.gov/ divisions-and-offices/air-pollution-control/state-implementation-plans/divisionof-air-pollution-control-sip-2015o3CleveModAttnDemo-app TC6P-TULQ] (including information from EJ Screen). 207. E.g., Amendments to the Air Quality Standard Permit for Concrete Batch Plants, TEX. COMMÊN ON ENVÊT QUALITY (2024), https://www.tceq.texas.gov/downloads/permitting/air/nsr/nsr-stakeholders/ 22033-oth-nr-cbpsp-tech-bckgrnd-adopted.pdf [https://perma.cc/PU5V-FCYL] (rejecting the use of EJScreen, and explaining that „air permit[s] . . . evaluated by TCEQ are reviewed without reference to the socioeconomic or racial status of the surrounding community‰).

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2023),

208. See Shannon Conley, David M. Konisky & Megan Mullin, Delivering on Environmental Justice? U.S. State Implementation of the Justice40 Initiative, 53 PUBLIUS: J. FEDERALISM 349, 349 (2023) („Our analysis of interviews with state officials and state NEVI plans reveals only modest differences between states in Justice40 implementation based on the partisanship of gubernatorial leadership, despite outspoken resistance to the initiative from many Republican governors.‰). 209. See Justice40: A Whole-of-Government Initiative, supra note 127. 210. See Memorandum from Shalanda Young, Dir., Off. of Mgmt. & Budget, Exec. Off. of the President, et al., to the Heads of Exec. DepÊts & Agencies (Jan. https://www.whitehouse.gov/wp-content/uploads/2023/01/M-2327, 09_Signed_CEQ_CPO.pdf [https://perma.cc/6CBN-N7C5] (instructing federal agencies to use CEJST). 211. Conley et al., supra note 208, at 351 („[P]lanning differences between Democratic and Republican-led states are smaller than the rhetorical differences in the public statements of state governors.‰). 212. There are interesting parallels to the Obama administrationÊs efforts to embed the Affordable Care Act (ACA) in state policymaking. See Abbe Gluck & Thomas Scott-Railton, Affordable Care Act Entrenchment, 108 GEO. L.J. 495, 572–77 (2020) (describing the ACAÊs financing structure as a type of entrenchment). 213. See supra note 129 and accompanying text (describing the One Big Beautiful BillÊs repeal of these funding programs).

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B. ALLOCATING FUNDING

214. See supra notes 92–94 and accompanying text. 215. See, e.g., Climate Pollution Reduction Grants Priority Action Plan for the State of Texas, supra note 206, at 4-1. See generally Conley et al., supra note 208 (describing state implementation of the Justice40 initiative). 216. See generally Off. of EnvÊt Health Hazard Assessment, Uses of CalEnviroScreen, CAL. ENVÊT PROT. AGENCY, https://oehha.ca.gov/calenviroscreen/ how-use [https://perma.cc/KSD3-9Q4G]. 217. See CAL. HEALTH & SAFETY CODE § 39713(a) (West 2026) („[M]inimum allocations to projects providing benefits to individuals living in disadvantaged communities or low-income households and projects located within disadvantaged or low-income communities.‰). See generally Vien Truong, Addressing Poverty and Pollution: CaliforniaÊs SB 535 Greenhouse Gas Reduction Fund, 49 HARV. C.R.-C.L. L. REV. 493 (2014) (describing SB 535Ês origins and requirements). 218. See Off. of EnvÊt Health Hazard Assessment, SB 535 Disadvantaged Communities, CAL. ENVÊT PROT. AGENCY, https://oehha.ca.gov/calenviroscreen/

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sb535 [https://perma.cc/H4SN-YUUJ] (explaining how CalEnviroScreen is used in disadvantaged-community identification). 219. CAL. GOVÊT CODE § 16428.89 (West 2026). 220. See Uses of CalEnviroScreen, supra note 216; Alice Kaswan & Catalina Gonzalez, Climate Justice Funding Lessons from California: Program Design and Engagement Opportunities, CTR. FOR PROGRESSIVE REFORM 9 (2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5106195 [https://perma .cc/4GGH-RBGE]; see also, e.g., CAL. PUB. UTIL. CODE § 1601 (West 2026) (using CalEnviroScreen to define „underserved community‰ for purposes of a school energy-efficiency-funding program); CAL. PUB. UTIL. CODE § 769.3 (West 2026) (same). 221. See Jamal Lewis, Rachael Grace, Noah Goldmann, Ari Matusiak & Leah Stokes, The Inflation Reduction Act of 2022 Investments for Disadvantaged Communities, REWIRING AM. (2022), https://content.rewiringamerica .org/reports/IRA%20Benefits%20to%20Disadvantaged%20Communities.pdf [https://perma.cc/7CSF-62UR] (summarizing programs). 222. CaliforniaÊs Cap-and-Trade Program: Frequently Asked Questions, LEGIS. ANALYSTÊS OFF. (2023), https://lao.ca.gov/Publications/Report/4811 [https://perma.cc/EWQ2-BQ2W] („In recent years, cap-and-trade auctions have raised between $3 billion and $4.3 billion per year.‰). 223. See 2024 Annual Report: Cap-and-Trade Auction Proceeds, supra note 35, at 6. 224. See id. at 11. 225. Walls et al., supra note 35, at 28 (describing multibillion dollar expenditures). 226. See Lewis et al., supra note 221, at 1.

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227. See Daniel A. Farber, Turning Point: Green Industrial Policy and the Future of U.S. Climate Action, 11 TEX. A&M L. REV. 303, 304 (2024). 228. See Truong, supra note 217, at 500–08 (describing skepticism toward CaliforniaÊs cap-and-trade system for greenhouse gases). Environmental justice advocates have held these concerns for decades. See, e.g., Richard Toshiyuki Drury, Michael E. Belliveau, J. Scott Kuhn & Shipra Bansal, Pollution Trading and Environmental Injustice: Los AngelesÊ Failed Experiment in Air Quality Policy, 9 DUKE ENVÊT L. & POLÊY F. 231, 233 (1999). 229. See Truong, supra note 217, at 527 („If there is not a real investment in disadvantaged communities, the environmental movement might lose political support from the very communities needed to continue the advancement of environmental policies.‰). 230. See Kaswan, supra note 128, at 1162; Walls et al., supra note 35, at iv („Many underserved communities lack the capacity and resources to undertake what can be an arduous application process.‰).

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231. See generally DENIS WOOD, THE POWER OF MAPS (1992) (explaining how maps serve social and political goals). 232. See generally Maantay, supra note 9 (identifying difficult choices researchers must make when using maps to understand environmental injustice). 233. See Huynh et al., supra note 40, at 187 (recommending adjustments to models to „prevent misuse‰). 234. See Ryan Kost & Yoohyun Jung, How a Tool that Tracks CaliforniaÊs ÂDisadvantaged CommunitiesÊ Is Costing S.F. Millions in State Funding, S.F. CHRON. (Nov. 23, 2021), https://www.sfchronicle.com/bayarea/article/California -has-a-tool-to-fund-its-most-vulnerable-16643115.php [https://perma.cc/3NSX -M5TG] („This has frustrated neighborhood organizers for years.‰); Off. of EnvÊt Health Hazard Assessment, Responses to Major Comments on the CalEnviroScreen 4.0 Public Review Draft, CAL. ENVÊT PROT. AGENCY (2021), https://oehha.ca.gov/sites/default/files/media/downloads/calenviroscreen/ response-comments/calenviroscreen40responsetocommentsf2022.pdf [https:// perma.cc/G936-PFYA] (detailing responses to community complaints). 235. See Responses to Major Comments on the CalEnviroScreen 4.0 Public Review Draft, supra note 234 („There were several specific suggestions and comments related to the environmental effects indicators.‰). 236. Huynh et al., supra note 40, at 189.

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C. REGULATORY USES

237. See, e.g., Shrestha et al., supra note 169 (noting this problem). 238. See Walls et al., supra note 35, at 14–16 (summarizing critiques). 239. E.g., Haley Mullen, Kyle Whyte & Ryan Holifield, Indigenous Peoples and the Justice40 Screening Tool: Lessons from EJSCREEN, 16 ENVÊT JUST. 360, 366 (2023) („One fundamental issue with EJSCREEN in relation to Indigenous EJ is its lack of qualitative data.‰). 240. See Walls et al., supra note 35, at 14 (explaining how complexity can make it difficult to assess why scores are changing and to evaluate the success of interventions). 241. E.g., Responses to Major Comments on the CalEnviroScreen 4.0 Public Review Draft, supra note 234 (describing many comments suggesting additional variables). 242. See Paul Tanaka, Michael Saretsky, Donna Ni, Maddy Foote & Matthew Swanson, Environmental Law and Practice in the United States: Overview, KIRKLAND & ELLIS (May 21, 2021), https://www.kirkland.com/ publications/article/2021/05/environmental-law-and-practice-in-the-unitedstate [https://perma.cc/UW35-AVTC]. 243. See Jake Latimer, Environmental Regulations: How Green Laws are Reshaping Industries, MEDIUM (Feb. 17, 2025), https://medium.com/@jakem latimer/environmental-regulations-how-green-laws-are-reshaping-industries-

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5f4839f47096 [https://perma.cc/JT88-UP4D] (discussing how regulatory efforts have transformed energy, manufacturing, transportation, and agriculture). 244. 42 U.S.C. § 4332(C). 245. See DANIEL R. MANDELKER, ROBERT L. GLICKSMAN, ARIANNE M. AUGHEY, DONALD MCGILLIVAY & MEINHARD DOELLE, NEPA LAW AND LITIGATION § 12.2 (2d ed. 2021). 246. See, e.g., CAL. PUB. RES. CODE § 20181 (West 1994) (requiring avoidance or mitigation of significant adverse impacts, if that avoidance or mitigation is feasible). 247. See Owen, Consultants, supra note 190, at 864–65 (discussing the critiques against CEQA). 248. See, e.g., Michael B. Gerrard, SEQRA and Climate Change, 10 NYSBA GOVÊT, L. & POLÊY J. 68, 68 (2008) (describing SEQRA as „the centerpiece of environmental decision-making in the state‰). Most politically conservative states do not have NEPA-like laws, so our review focuses on more liberal states.

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(recommending

[https://perma.cc/TTX6-EJ86]

249. See Promising Practices for EJ Methodologies in NEPA Reviews, FED. INTERAGENCY WORKING GRP. ON ENVÊT JUST. & NEPA COMM. 13 (2016), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_ practices_document_2016.pdf the use of EJ Screen to understand and describe a federal actionÊs setting). 250. See id. at 29 (describing „guiding principles‰ that could help inform agencies). 251. See Emily Bacchini, Craig Stevens & Collin S. McCarthy, Thresholds of Significance, CEQANET WEB PORTAL (2020), https://web.archive.org/web/ 20220202121026/https://ceqaportal.org/tp/CEQA%20Portal%20Topic%20 Paper_Thresholds%20of%20Signifcance_2020%20Update.pdf .cc/XS2H-Z5JE]. 252. See, e.g., Lauren Freelander, Benjamin McKenzie, Erica Lehnert, Barry Flanagan, Michel Conn, Gabriele Richardson & Angela K. Werner, The Environmental Justice Index: Measuring Cumulative Impacts of Environmental Burdens on Health, 86 J. ENVÊT HEALTH 34, 36 (2023) (describing the use of CEJST to identify priority areas for mitigation measures for a transportation project in New York City). 253. See generally Council on EnvÊt Quality, Considering Cumulative Effects Under the National Environmental Policy Act, EXEC. OFF. OF THE PRESIDENT https://www.energy.gov/nepa/articles/considering-cumulative-effects(1997), under-national-environmental-policy-act-ceq-1997 [https://perma.cc/27WR -J6KQ] (providing methods for cumulative impact analysis); Cumulative Impacts, ASSOC. OF ENVÊT PROS. (last updated De. 18, 2020), https://web .archive.org/web/20240716210341/https://ceqaportal.org/tp/AEP%20CEQA% 20Portal_Cumulative%20Impacts.pdf [https://perma.cc/8UPT-GAJM] (describing cumulative impact analysis under CEQA). 254. See supra notes 81–95 and accompanying text.

[https://perma

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255. An environmental impact report is a full-length environmental study. It resembles a federal environmental impact statement (EIS). 256. A mitigated negative declaration (MND) is a document concluding that, because of specific mitigation measures, a project will not have significant impacts on the environment. It is equivalent to a mitigated finding of no significant impact under federal law. CEQA Document Types, CAL. DEPÊT OF TRANSP. (2018), https://dot.ca.gov/-/media/dot-media/programs/environmental-analysis/ [https://perma.cc/U9MW documents/ser/fs-ceqa-document-types-a11y.pdf -4U4N]. 257. We reviewed sixty-nine EIRs and twenty-five MNDs, with the sample beginning on December 30, 2023, and working chronologically backward. We obtained the documents from CaliforniaÊs CEQAnet Web Portal. See CEQAnet Web Portal, CAL. GOVERNORÊS OFF. OF LAND USE & CLIMATE INNOVATION, https://ceqanet.opr.ca.gov [https://perma.cc/52Q4-Z8HD]. 258. See, e.g., CAL. DEPÊT OF TRANSP. & SANTA CLARA VALLEY TRANSP. AUTH., US 101/ZANKER ROAD/SKYPOIRT DRIVE/FOURTH STREET IMPROVEMENT PROJECT, DRAFT ENVIRONMENTAL IMPACT REPORT/ENVIRONMENTAL https://files.ceqanet.lci.ca.gov/273260-4/attachment/ (2023), ASSESSMENT kakVzUTXp7fsSyXFwCaRZPAmvEXd3iSDMPX1TbL_0OMu0S707hZoeE CItZ2OtpRY7PW8Z5TFlbKEkZ1O0 [https://perma.cc/SXV3-G6Z9] (containing no CalEnviroScreen mention). 259. See, e.g., Haseeb Qureshi & Alyssa Barnett, Rider & Patterson Business Center (PPT220004) Air Quality Impact Analysis, URB. CROSSROADS (2023), https://ceqanet.opr.ca.gov/2022120110/2/Attachment/yr_pQ0 [https:// perma.cc/NF9C-RTHY] (providing CalEnviroScreen data in an appendix, which is not discussed in the body of the Draft Environmental Impact Report (DEIR ; Haseeb Qureshi, Alyssa Barnett & Michael Tirohn, Orchard Logistics Center Air Quality Analysis, URB. CROSSROADS (2023), https://ceqanet.opr.ca.gov/ 2022070351/2/Attachment/5SHmJr [https://perma.cc/NF9C-RTHY] (providing CalEnviroScreen data in an appendix, which is not discussed in the body of the air quality impact analysis). 260. See, e.g., U.S. Army Corps of EngÊrs, American River Common Features, 2016 Flood Risk Management Project: Supplemental Environmental Impact Statement/Subsequent Environmental Impact Report XIV, CENT. VALLEY (2023), https://ceqanet.opr.ca.gov/20050 FLOOD PROT. BD. 2.5-1 to

-10

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[https://perma.cc/WHJ4

72046/65/Attachment/O9nbfE [https://perma.cc/ME7X-EVX9] (demonstrating existing conditions and compliance with environmental justice initiatives). 261. See, e.g., STATE OF CAL., DEPÊT OF TRANSP., EA 05-1J790, SCENIC ROUTE 68 CORRIDOR IMPROVEMENTS PROJECT: DRAFT ENVIRONMENTAL IMPACT REPORT/ ENVIRONMENTAL ASSESSMENT AND SECTION 4(F) EVALUATION 55 (2023), https://dot.ca.gov/-/media/dot-media/district-5/documents/sr68-scenic-68 -ded-05-1j790-1123-a11y.pdf [https://perma.cc/5AED-BG3K] (explaining that CalEnviroScreen showed a low vulnerability score for adjacent communities); The Oasis at Glen Helen Parkway Project: DRAFT Subsequent Environmental Impact Report, SAN BERNARDINO CNTY. 4.1-33 (2023), https://files.ceqanet.lci.ca .gov/51337-6/attachment/-rZfFMELh_C645xGIW3631QQNWjg05SSiEx45nj Mb_bhG7-kqjN4K-16sfLtStB2fk6G-am9DCYizYx00 -8SVT] (noting the project areaÊs low scores for diesel particulate matter). 262. We searched the websites of the South Coast Air Quality Management District, Bay Area Air Quality Management District, and San Joaquin Valley Air Pollution Control District to find such thresholds. 263. See, e.g., EnvÊt Plan. Dev. Sols., Inc., Duke Warehouse at Slover and Alder Project: Final Environmental Impact Report, CNTY. OF SAN BERNARDINO at 2-38 to -39 (2024), https://ceqanet.opr.ca.gov/2021120526/7/Attachment/ AxnDiB [https://perma.cc/YZ4B-7ZSV] (stating that the areaÊs pollution indicators in CalEnviroScreen are already disproportionately high and that the project would further impact these disadvantaged communities). 264. See, e.g., Anchor QEA, LLC, TC NO. CAL. Development Warehousing and Distribution Facility Project Final Environmental Impact Report Draft, PORT OF STOCKTON 201 (2023), https://ceqanet.opr.ca.gov/2021080499/5/ Attachment/zrRi2k [https://perma.cc/GQ9R-TGG9] („While CalEnviroScreen is a useful tool, it presents cumulative risk from a variety of sources. The goal of a CEQA document is to isolate the proposed project contribution to environmental impacts.‰). 265. TVC 2050 Project: Final Environmental Impact Report, L.A. DEPÊT OF CITY PLAN. at II-2192, (2023), https://planning. lacity.gov/EIR/TVC_2050/FEIR/Sections/F_II.pdf [https://perma.cc/562E-9Z53].

-2214,

-2203,

-2728

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266. Dudek, Environmental Impact Report: Apple Valley 143 Project, TOWN OF APPLE VALLEY, PLAN. DEPÊT 3–10 (2023), https://ceqanet.opr.ca.gov/ 2022070019/3/Attachment/O0cKHm [https://perma.cc/D59Q-ZLMF]. 267. Duke Warehouse at Slover and Alder Project: Final Environmental Impact Report, supra note 263, at 2-2. 268. There were twenty documents, all of which we accessed through EPAÊs EIS database. See Environmental Impact Statement (EIS) Database, U.S. ENVÊT PROT. AGENCY (last updated Jan. 19, 2026), https://cdxapps.epa.gov/ cdx-enepa-II/public/action/eis/search [https://perma.cc/FK23-56P2]. All these EISs were published after CEQ issued NEPA regulations calling for environmental-justice analyses and recommending the use of EJ-mapping applications. 40 C.F.R. § 1508.1(f) (2025). 269. Of the twenty documents, sixteen had multi-page discussions of environmental justice, and nine made use of EJ-mapping applications. 270. See, e.g., West Everglades Restoration Project: Final Integrated Project Implementation Report and Environmental Impact Statement, U.S. ARMY CORPS OF ENGÊRS, at 5-100 (2024), https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/26653 (using CEJST and EJScreen); BUREAU OF OCEAN ENERGY MGMT., BOEM 2023-0056, FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE SUNRISE WIND PROJECT, at 3-434 to -508 (2024), https://www.boem.gov/sites/default/files/documents/ renewable-energy/state-activities/Sunrise%20Wind%20Final%20 Environmental%20Impact%20Statement%20Volume%201.pdf .cc/D3WJ-4BJW] (relying on state EJ-mapping applications).

[https://perma.cc/A8NP-Q33F]

[https://perma

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271. See, e.g., West Everglades Restoration Project, supra note 270, at app. C.2-229 to -234 (identifying a potentially disadvantaged area with CEJST and EJScreen data on minority populations, then identifying potential environmental justice impacts of the project, concluding the project would improve the environment in the area without disproportionately high or adverse impacts to the disadvantaged communities); TENN. VALLEY AUTH., EISX-455-00-0001724261724, INTEGRATED RESOURCE PLAN 2025 – VOLUME II / DRAFT ENVIRONMENTAL IMPACT STATEMENT, at 4-66 to -73 (2024), https://tva -azr-eastus-cdn-ep-tvawcm-prd.azureedge.net/cdn-tvawcma/docs/defaultsource/environment/environmental-stewardship/integrated-resource-plan/ 2025/draft-2025-environmental-impact-statement.pdf [https://perma.cc/39BFXPFU] (using U.S. Census Bureau maps on poverty rates and racial minority population first, then focusing on government-recognized tribal statistical areas). 272. U.S. DEPÊT OF TRANSP., FED. TRANSIT ADMIN. & SOUND TRANSIT, AE 0036-17, WEST SEATTLE LINK EXTENSION FINAL ENVIRONMENTAL IMPACT STATEMENT: APPENDIX G ENVIRONMENTAL JUSTICE, at 3-10 to -13 (2024), https://www.soundtransit.org/sites/default/files/documents/09-WSLE-Final EIS-AppendixG-environmentaljustice.pdf [https://perma.cc/3JK2-D4C8] (utilizing EJScreen and Washington Tracking Network data to show the study area having high environmental exposure rates); Draft Environmental Impact Statement for the Proposed Modernization of the Bridge of the Americas Land Port of Entry El Paso, Texas, U.S. GEN. SERVS. ADMIN., at 3-20 to -55 (2024), https://www.gsa.gov/system/files/BOTA%20Draft%20EIS.pdf [https://perma.cc/ G6MT-H2JA] (using EJScreen data to identify minority and low-income populations within the project areas, in addition to health, language, and other environmental thresholds). 273. See, e.g., Stibnite Gold Project Final Environmental Impact Statement: Appendix B Response to Public Comments on the SDEIS and Response to Public Concerns on the 2020 DEIS, U.S. DEPÊT OF AGRIC.: FOREST SERV. 612 (2024), https://perpetuaresources.com/wp-content/uploads/Stibnite-Gold-Project-FinalEIS-Errata.pdf [https://perma.cc/G5TW-HJHM] (explaining why the Forest Service declined to use EJScreen). 274. See, e.g., Environmental Justice Technical Report, INTERSTATE BRIDGE REPLACEMENT PROGRAM, at 2-4 to (2024), https://www.interstate bridge.org/media/250czkxt/environmental-justice-technical-report.pdf [https:// perma.cc/JB6L-VFJW] (identifying EJ population first, then relying on site-specific impact analysis and community outreach). 275. See supra notes 268–74 and accompanying text.

-26

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276. Detecting the influence of NEPA processes on agency decisions is notoriously difficult. See generally Bradley Karkkainen, Whither NEPA?, 12 N.Y.U. ENVÊT L.J. 333, 338–43 (2004) (describing alternative·and contested·theories of NEPAÊs effectiveness, or lack thereof). 277. See Cmtys. Against Runway Expansion, Inc. v. Fed. Aviation Admin., 355 F.3d 678, 689 (D.C. Cir. 2004) (ruling that the Federal Aviation AdministrationÊs (FAA) environmental justice analysis was not arbitrary or capricious); NAACP Erie Unit 2262 v. Fed. Highway Admin., 648 F. Supp. 3d 576, 591 (W.D. Pa. 2022) („[The] agencyÊs consideration of environmental justice issues may be reviewed under [the] Administrative Procedure ActÊs (APA) arbitrary and capricious standard.‰). 278. See, e.g., Trenton Threatened Skies, Inc. v. Fed. Aviation Admin., 90 F.4th 122, 139 (3d Cir. 2024) (upholding agency choices to use census tracts as a unit of analysis); NAACP Erie Unit 2262, 648 F. Supp. 3d at 591–93 (holding that the agency had satisfied the „hard look‰ requirement to uphold NEPA approval); New Jersey v. U.S. DepÊt of Transp., No. 23-CV-03885, 2024 WL 5247990, at *16–17 (D.N.J. Dec. 30, 2024) (upholding the defendant agencyÊs choice of thresholds). 279. See Gerrard & McTiernan, supra note 132. 280. See N.J. STAT. ANN. § 13:1D-157 to -161 (West 2025); see also Mallory & Neal, supra note 131, at 321–25 (describing the law). 281. See id.

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282. Environmental Justice Mapping, Assessment, and Protection Tool, N.J. DEPÊT OF ENVÊT PROT., https://experience.arcgis.com/experience/548632a2 351b41b8a0443cfc3a9f4ef6 [https://perma.cc/758Y-HEGU] (describing New Jersey); N.J. STAT. ANN. § 13:1D-158 (West 2025) (defining „[o]verburdened community‰); What Are Overburdened Communities (OBC)?, N.J. DEPÊT OF ENVÊT PROT. (last updated Feb. 26, 2026), https://dep.nj.gov/ej/communities [https://perma.cc/3HFH-2SMT] (providing a map of overburdened communities, as required by the statute). 283. See N.J. STAT. ANN. § 13:1D-158 (West 2025) (listing qualifying „facilities‰); id. § 13:1D-160 (establishing procedural and substantive requirements). 284. Id. § 13:1D-160c. 285. Id. 286. See Press Release, State of N.J., Off. of Governor, Governor Murphy Announces NationÊs First Environmental Justice Rules to Reduce Pollution in Vulnerable Communities (Apr. 17, 2023), https://web.archive.org/web/2023 0609045312/https://nj.gov/governor/news/news/562023/approved/20230417a .shtml [https://perma.cc/A9SP-DEGQ] (announcing the final adoption of New JerseyÊs environmental justice law). 287. See Environmental Justice Administrative Order Decisions, N.J. DEPÊT OF ENVÊT PROT. (last updated June 23, 2025), https://dep.nj.gov/ej/law-decisions [https://perma.cc/2SPW-DBE2]. 288. Environmental Justice Decision and Imposition of Special Conditions Pursuant to Administrative Order No. 2021-25 in In re Passaic Valley Sewerage Commission 2–3 (July 18, 2024) [hereinafter Administrative Order No. 202125], https://dep.nj.gov/wp-content/uploads/ej/ej-decision-pvsc-backup-power -facility-20240718.pdf [https://perma.cc/8WEX-35KY].

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289. Id. at 2. 290. See id. at 4 (describing opposition). 291. Id. 292. See id. at 10–16 (describing additional conditions imposed through the environmental-justice review process). 293. See Wayne Parry, New Jersey Environmental Justice Law WonÊt Block Power Plant Hotly Fought by Newark Residents, AP NEWS (July 18, 2024), https://apnews.com/article/new-jersey-power-plant-environmental-justice -sewage-ceedbe33848fa18c8dcfea55d75b5b40 (quoting one activistÊs condemnation of „a shameful, racist compromise‰). 294. See Administrative Order No. 2021-25, supra note 288, at 4. 295. See id. at 10–16 (adding additional emission reduction and renewable energy requirements). 296. See generally Owen, Negotiable Implementation, supra note 190 (describing the prevalence of negotiated compromises in environmental permitting). 297. Opposition to the project has continued in the wake of New Jersey DEPÊs decision. See Michael Sol Warren, Controversial Plan for Newark Power Plant Faces Growing Opposition, NJ SPOTLIGHT NEWS (Sept. 19, 2024),

[https://perma.cc/3JME-CU7B]

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https://www.njspotlightnews.org/2024/09/controversial-natural-gas-powerplant-newark-meets-persistent-opposition [https://perma.cc/Z2MT-WC72]. 298. See Basic Information About Operating Permits, U.S. ENVÊT PROT. AGENCY (last updated Dec. 8, 2025), https://www.epa.gov/title-v-operatingpermits/basic-information-about-operating-permits [https://perma.cc/UC7K -NX3P] (stating Title V Operating Permits are issued to all large sources of air pollution). 299. See EJ in Air Permitting: Principles for Addressing Environmental Justice Concerns in Air Permitting, U.S. ENVÊT PROT. AGENCY 2 (2022), https://www.epa.gov/title-v-operating-permits/basic-information-about -operating-permits [https://perma.cc/UC7K-NX3P] (promoting EJScreen use in air permitting). 300. See, e.g., Manuel Pastor, Rachel Morello-Frosch, James Sadd & Justin Scoggins, Minding the Climate Gap: WhatÊs at Stake if CaliforniaÊs Climate Law IsnÊt Done Right and Right Away, COLL. OF NAT. RES., UNIV. OF CAL., BERKELEY & PROGRAM FOR ENVÊT & REGÊL EQUITY, UNIV. OF S. CAL. 5–12 (2010), https://drive.google.com/file/d/14n7THhuQKGj5ZFnmaQ5JMEGHpUIKIAE/view [https://perma.cc/F3JB-R4G9] (finding that heavy-emissions facilities in California tend to be in communities that are poorer and have higher minority populations). 301. See Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions, U.S. ENVÊT PROT. AGENCY & OFF. OF GEN. COUNS. 15– 16 (2022), https://www.epa.gov/system/files/documents/2022-08/EJ%20and% [https:// 20CR%20in%20PERMITTING%20FAQs%20508%20compliant_0.pdf

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https://www.aqmd.gov/home/permits/title-v

perma.cc/XT64-K3U3] (identifying measures permittees can use to limit unlawful disparate impacts). 302. See Owen, Negotiable Implementation, supra note 190, at 175–76 (describing the performance standards as rigid but the separate „new source review‰ process as flexible·often involving negotiations that result in adjustments in project operations or community benefit agreements). 303. We reviewed Title V permits and related documents issued by the South Coast Air Quality Management District, the Bay Area Air Quality Management District, the San Joaquin Valley Air Pollution Control District, and the San Diego Air Pollution Control District. See Title V, S. COAST AIR QUALITY MGMT. DIST., [https://perma.cc/2YKP -882L]; Title V Permits, BAY AREA AIR QUALITY MGMT. DIST. (last updated Sept. 7, 2023), https://www.baaqmd.gov/permits/major-facility-review-title-v/title-vpermits [https://perma.cc/6YX2-KSHE]; Public Notices, SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DIST., https://archive.valleyair.org/notices/ public_notices-archive.html [https://perma.cc/P2XQ-T5SV]. 304. See, e.g., Letter from Brian Clements, Dir. of Permit Servs., San Joaquin Valley Air Pollution Control Dist., to Melissa McCormick, Manager of EnvÊt, Health, & Safety, Wonderful Pistachios & Almonds (Nov. 21, 2024), https://ww2.valleyair.org/media/yythqv0u/packet.pdf [https://perma.cc/7GMX -8QAQ]; Proposed Permit Evaluation and Statement of Basis for Renewal of the Major Facility Review Permit for Valero Benicia Asphalt Plant, BAY AREA AIR QUALITY MGMT. DIST. (2021), https://www.baaqmd.gov/~/media/files/ engineering/title-v-permits/a0901/a0901_2021_renewal_proposed_sob_04-pdf .pdf [https://perma.cc/XGN6-CJ7K]. 305. See, e.g., Title V Model General Permit Template, SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DIST., https://ww2.valleyair.org/media/ urhbc03q/um-0-3.pdf [https://perma.cc/XMS3-2LW8]; Title V Permit Applica(2007), tion, SACRAMENTO METRO. AIR QUALITY MGMT. DIST. https://www.airquality.org/StationarySources/Documents/TitleVApplicationForm.pdf [https://perma.cc/XMS3-2LW8].

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306. We also reviewed Title V documents from Michigan and Massachusetts. See Sources Subject to MichiganÊs Renewable Operating Permit Program Sorted by Name, MICH. DEPÊT OF ENVÊT, GREAT LAKES & ENERGY (last updated Aug. 28, 2025), https://www.egle.state.mi.us/aps/downloads/rop/ROPlist/ APS_ROP_Sources_by_Name.pdf [https://perma.cc/K2V3-5JHX]; Air Operating Permits: Initial Application, Renewal, Administrative Amendment, Minor Modification, Significant Modification, MASS. DEPÊT OF ENVÊT PROT.: BUREAU OF AIR & WASTE (2020), https://www.mass.gov/doc/general-instructions-operating -permits/download [https://perma.cc/BGA3-ZLXN]; Massachusetts Operating Permit Facilities, MASS. DEPÊT OF ENVÊT PROT., https://www.mass.gov/lists/ massachusetts-operating-permit-facilities [https://perma.cc/7CWF-Y3XU]. 307. N.M. CODE R. § 20.11.72.8 (LexisNexis 2025). 308. Recent California legislation compels development of air quality improvement plans for disadvantaged communities and adoption of best available retrofit control technology in nonattainment areas statewide. CAL. HEALTH & SAFETY CODE § 44391.2 (West 2026). But the law does not directly link permitting stringency to disadvantaged-community status. See id. 309. See, e.g., Appendix C – Site Analysis for the Chevron Refinery Community Air Monitoring Station, BAY AREA AIR QUALITY MGMT. DIST., at C-17 to -19 https://www.baaqmd.gov/~/media/files/technical-services/community (2024), -air-monitoring/03_refinery_camp_v7_appendix_c_pdf-pdf.pdf [https://perma .cc/7CWF-Y3XU] (using CalEnviroScreen to analyze existing conditions); South Coast AQMD Program Announcement, S. COAST AIR QUALITY MGMT. DIST. 1–2 (2024), https://www.aqmd.gov/docs/default-source/aqmd-forms/moyer/pa202402.pdf [https://perma.cc/C5FE-UXCJ] (calling for CalEnviroScreen use in program applications). 310. See CAL. HEALTH & SAFETY CODE § 44391.2 (West 2026); Community Air Protection Program Blueprint 2.0, CAL. AIR RES. BD. 43 (2023), https://ww2.arb.ca.gov/sites/default/files/2024-04/BP2.0_FULL_FINAL_ENG_ 2024_04_09.pdf [https://perma.cc/VUA5-Z5WF] (calling for the use of CalEnviroScreen to select participating communities).

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311. See supra notes 206–07 and accompanying text. 312. See, e.g., Letter from David Garcia, Dir., Air & Radiation Div., U.S. EnvÊt Prot. Agency, to Bliss Higgins, Assistant SecÊy, Off. of EnvÊt Servs., State of La. 20 (Aug. 22, 2022) (calling for Louisiana to provide more training on, and make more use of, EJScreen in Clean Air Act permitting). 313. See EPA Issued Operating Permits, U.S. ENVÊT PROT. AGENCY (last updated Dec. 12, 2025), https://www.epa.gov/title-v-operating-permits/epa-issuedoperating-permits [https://perma.cc/74HP-PRZG]. 314. See generally Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions, supra note 301 (providing general guidance for state permit writers). 315. See id. at 8 („Geographic Information System (GIS) tools such as EPAÊs EJScreen or state EJ-mapping tools can be used as a starting point to assess whether the permitting action raises environmental justice or civil rights concerns.‰); EJScreen Training – Day 1, U.S. ENVÊT PROT. AGENCY: REGION 9 AIR & RADIATION DIV., PERMITS OFF. (2022), https://www.epa.gov/system/files/ [https://perma.cc/7X5P-Q2A3]; documents/2022-03/r9-ejscreen-training-1.pdf EJScreen Training – Day 2, U.S. ENVÊT PROT. AGENCY: REGION 9 AIR & RADIATION DIV., PERMITS OFF. (2022), https://www.epa.gov/system/files/ documents/2022-02/r9-ejscreen-training-2.pdf [https://perma.cc/KND2-74DE]; see also, e.g., EJScreen Report (Version 2.0), U.S. ENVÊT PROT. AGENCY (2024), https://downloads.regulations.gov/EPA-R09-OAR-2022-0298-0005/attachment_ 3.pdf [https://perma.cc/S8LL-LWUX] (providing an EJScreen report for a Title V permit for a mining facility on tribal land); EJScreen Report (Version 2.1), U.S. ENVÊT PROT. AGENCY (2022), https://downloads.regulations.gov/EPA-R09OAR-2022-0900-0007/attachment_5.pdf [https://perma.cc/74KQ-JCW9] (providing an EJScreen report for a new minor source permit). 316. See EJScreen Training – Day 2, supra note 315 (describing the use of EJScreen for a mine and processing facility in Arizona); see also In re Deseret

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Generation & Transmission Co-operative Bonanza Power Plant, No. 24-01, 2024 WL 4869761, at *17 (EAB 2024) (discussing the use of EJScreen in supporting analysis for a Title V permit). 317. See, e.g., Approval of Source-Specific Air Quality Implementation Plan, 89 Fed. Reg. 76740, 76740–41 (Sept. 19, 2024) (to be codified at 40 C.F.R. pt. 52) (providing an environmental justice analysis, which draws on EJScreen, for a facility-specific amendment to New YorkÊs State Implementation Plan (SIP . 318. See id. at 76741 („The CAA and applicable implementing regulations neither prohibit nor require an evaluation of environmental justice concerns. Thus, the analysis is not a basis of this action.‰); Approval and Promulgation of Air Quality Implementation Plans, 88 Fed. Reg. 78650, 78653 (Nov. 16, 2023) (to be codifed at 40 C.F.R. pt. 52) („While a Sta[te] may consider environmental justice under the reasonable progress factors, neither the statute nor the regulation requires states to conduct an environmental justice analysis for EPA to approve a SIP submission.‰). 319. See supra note 307 and accompanying text (describing AlbuquerqueÊs heightened requirements for stationary sources in overburdened communities).

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320. See generally Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 MICH. L. REV. 900 (1976) (describing the then-emerging role of comprehensive planning). 321. See supra notes 46–49 and accompanying text. 322. See generally Addressing Community Concerns: How Environmental Justice Relates to Land Use Planning and Zoning, NATÊL ACAD. OF PUB. ADMIN. (2003), https://www.epa.gov/sites/default/files/2015-02/documents/napa-landuse-zoning-63003.pdf [https://perma.cc/3YHE-79R9]. 323. See James Brasuell, Evaluating CEQA: The Controversial Law Turns 50, PLANETIZEN (Dec. 8, 2020), https://www.planetizen.com/news/2020/12/ 111468-evaluating-ceqa-controversial-law-turns-50 [https://perma.cc/XKP2 -WHSF] (describing how the California Environmental Quality Act, although not a land use law, has been impacting land use in California for decades). 324. See CAL. GOVÊT CODE § 65302 (West 2026); see also Best Practices for Implementing SB 1000, CAL. DEPÊT OF JUST. 5, https://oag.ca.gov/system/ files/media/sb-1000-best-practices-en.pdf [https://perma.cc/63PT-2YVH].

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6-4

325. For Michigan, we reviewed land use plans from Adrian, Benton Harbor, Clemens Park, Dearborn, Detroit, Grand Rapids, Ecorse, Fair Plain, Hamtramck, Highland Park, Inkster, Jackson, Kalamazoo, Lansing, Melvindale, Monroe, Muskegon, Pontiac, Redford, and River Rouge. For New Jersey, we reviewed land use plans from Bridgeton, Camden, Carteret, East Orange, Elizabeth, Freehold, Jersey City, Lakewood, Linden, Millville, Newark, Paterson, Pensauken, Perth Amboy/Woodridge, Trenton, Vineland, and Willingboro. 326. See Placeworks, Envision Stockton 2040 General Plan, CITY OF (2018), https://www.stocktonca.gov/Documents/Business/ STOCKTON Planning%20&%20Engineering/General%20Plan/Adopted_Plan.pdf [https:// perma.cc/3E2A-KQ5P] (providing one brief mention of CalEnviroScreen). 327. See, e.g., Bridge to Our Future: Grand Rapids Community Master Plan Updates, CITY OF GRAND RAPIDS (2024), https://www.grandrapidsmi.gov/ Government/Programs-and-Initiatives/Community-Master-Plan/Community -Master-Plan-Documents [https://perma.cc/S7DV-R4Z4] (containing only brief mentions of environmental justice); Adopted Master Land Use Plan, CITY OF MUSKEGON, https://muskegon-mi.gov/city-services/development-services/ [https:// planning/city-plans-reports-strategies/adopted-master-land-use-plan perma.cc/H4VW-KQME]; Our Jersey City Master Plan Vision, JERSEY CITY PLAN. (2021), https://acrobat.adobe.com/id/urn:aaid:sc:VA6C2:719c7de0-8ebf -4b8b-87d4-9d7b6774d594 [https://perma.cc/3ATQ-YDUC] (using maps but not EJ-mapping applications). But see Newark360: Shaping Our City Together, CITY OF NEWARK 46–47 (2022), https://www.newark360.org/newark360-finalplan [https://perma.cc/V9S2-AFEN] (combining mapping of industrial sites with maps generated using the Federal Agency for Toxic Substances and Disease RegistryÊs vulnerability index). 328. See, e.g., Bakersfield General Plan Existing Conditions Background Report, RINCON CONSULTANTS, INC. 51–67 (2022), https://bakersfield2045 .com/wp-content/uploads/2022/08/20-10096_BkrsfldGnrlPln_Background Report_PublicDraft.pdf [https://perma.cc/3TD6-J6HB] (making extensive use of

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CalEnviroScreen); Dyett & Bhatia, City of Moreno Valley: General Plan 2040, MORENO VALLEY, at 8-2 to -8 (2021), https://moval.gov/city_hall/generalplan2040/MV-GeneralPlan-complete.pdf [https://perma.cc/YQ3N-C488] (using CalEnviroScreen mapping to help identify disadvantaged communities in Moreno Valley). 329. See, e.g., Dyett & Bhatia, Sacramento 2040 General Plan, CITY OF SACRAMENTO (2024), https://www.cityofsacramento.gov/content/dam/portal/ cdd/Planning/General-Plan/2040-General-Plan/Adopted%202040%20General% 20Plan_20240227.pdf [https://perma.cc/XT8R-F39L]. 330. See id. at 7-3 to -11; see also id. at 7-23. 331. See, e.g., Letter from Jessica Wall, Deputy AttÊy Gen., to Sergio Infanzon, Dir. of Cmty. Dev., City of Huntington Park 2 (Mar. 4, 2021), https://oag.ca.gov/sites/all/files/agweb/pdfs/environment/sb1000-letter -huntington.pdf [https://perma.cc/35ZS-JE2Y] (using CalEnviroScreen to argue for the need for an environmental justice analysis); Letter from Christie Vosburg, Supervising Deputy AttÊy Gen., to Dawn Rowe, Senior Planner, Plan. DepÊt, City of Fontana 3–4 (Aug. 20, 2018), https://oag.ca.gov/sites/all/files/ [https://perma.cc/BL2J agweb/pdfs/environment/sb1000-letter-fontana.pdf -8RK2] (using CalEnviroScreen data to question FontanaÊs „disadvantaged community‰ designations).

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332. William Boyd, Public Utility and the Low-Carbon Future, 61 UCLA L. REV. 1614, 1640 (2014). 333. See Sharon Jacobs & Dave Owen, Community Energy Exit, 73 DUKE L.J. 251, 255–56 (2023) (describing how state regulation ensures that energy costs are socialized to help low-income customers). 334. See generally EMANUELE MASSETTI, MARILYN A. BROWN, MELISSA LAPSA, ISHA SHARMA, JAMES BRADBURY, COLIN CUNLIFF & YUFEI LI, OAK RIDGE NATÊL LABÊY, U.S. DEPÊT OF ENERGY, ORNL/SPR-2016/772, ENVIRONMENTAL QUALITY AND THE U.S. POWER SECTOR: AIR QUALITY, WATER QUALITY, LAND USE AND ENVIRONMENTAL JUSTICE (2017), https://info.ornl .gov/sites/publications/files/Pub60561.pdf [https://perma.cc/3XYS-2X4X] (summarizing power sector impacts on local pollution). 335. See Marilyn A. Brown, Anmol Soni, Melissa V. Lapsa, Katie Southworth & Matt Cox, High Energy Burden and Low-Income Energy Affordability: Conclusions from a Literature Review, PROGRESS ENERGY, Oct. 27, 2020, at 1, 5 (referencing that forty percent of low income households in 2015 reported finding it difficult to pay electricity bills at least „once in a while‰). 336. See, e.g., SHALANDA H. BAKER, REVOLUTIONARY POWER: AN ACTIVISTÊS GUIDE TO THE ENERGY TRANSITION (2021) (arguing for integrating energy justice into the renewable energy transition); Benjamin K. Sovacool & Michael H. Dworkin, Energy Justice: Conceptual Insights and Practical Applications, 142 APPLIED ENERGY 435–36 (2015) (describing energy justice as an important analytical and decision-making tool to resolve energy problems). 337. On November 21, 2024, a search of WestlawÊs California Administrative Decisions & Guidance database for „calenviroscreen‰ produced 163 hits.

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338. See, e.g., Cal. Pub. Utils. CommÊn, Order Instituting Rulemaking Regarding Policies, Procedures, and Rules for Distributed Generation Issues, 2017 WL 4676979, at *6 (Oct. 12, 2017) (favoring the statewide application of CalEnviroScreenÊs definition of „disadvantaged communities‰); Cal. Pub. Utils. CommÊn, Order Instituting Rulemaking to Develop a Successor to Existing Net Energy Metering Tariffs, 2018 WL 3175631, at *9 (June 21, 2018) (concluding the same). 339. See Environmental and Social Justice Action Plan Version 2.0, CAL. PUB. UTILS. COMMÊN 10, 60, 64 (2022), https://www.cpuc.ca.gov/-/media/ cpuc-website/divisions/news-and-outreach/documents/news-office/key-issues/ esj/esj-action-plan-v2jw.pdf [https://perma.cc/HR32-GEL6]. 340. See, e.g., In re, on the CommÊnÊs Own Motion, to Implement the Provisions of Section 6t of 2016 PA 341, No. U-18461, 2022 WL 16712821, at *1 (Mich. P.S.C. Oct. 27, 2022) („It is preferred that utilities use MiEJScreen tool to the extent practicable.‰); In re on the CommÊnÊs Own Motion, to Open a Docket for Certain Regulated Elec. Utils., No. U-20147, 2022 WL 4448185, at *49 (Mich. P.S.C. Sept. 8, 2022) (recommending the adoption of distribution plans that include the identification of „investment locations overlayed with . . . socioeconomic context, such as MiEJScreen information‰); In re Application of DTE Elec. Co., No. U-21297, 2023 WL 8435348, at *60 (Mich. P.S.C. Dec. 1, 2023) („[F]uture equity analyses must include, at a minimum, EJ analyses that provide community vulnerability gradations based on the MiEJScreen composite score for the circuits.‰); In re Application of Consumers Energy Co., No. U-21389, 2024 WL 980419, at *193 (Mich. P.S.C. Mar. 1, 2024) („The Commission is persuaded that [MiEJScreen data] will allow for better understanding on how reliability experiences and program investments vary for Michigan communities . . . .‰). 341. See, e.g., Cal. Pub. Utils. CommÊn, Order Instituting Rulemaking Regarding Policies, Procedures and Rules for the Self-Generation Incentive Program and Related Issues, 2024 WL 1344743, at *7 (Mar. 21, 2024) (discussing use of CalEnviroScreen as an eligibility screening tool for a funding program); Cal. Pub. Utils. CommÊn, Order Instituting Rulemaking on the CommissionÊs Own Motion to Consider Renewal of the Electric Program Investment Charge Program, 2024 WL 1237613, at *4 (Mar. 7, 2024) (stating that the program should directly benefit disadvantaged, vulnerable communities as defined by CalEnviroScreen).

information

in

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D. ADDRESSING RACE

342. See generally Environmental and Social Justice Action Plan Version 2.0, supra note 339 (describing the CPUCÊs social justice initiatives). 343. See supra note 340 and accompanying text. 344. See, e.g., In re Application of Consumers Energy Co., No. U-21224, 2023 WL 398311, at *10–11 (Mich. P.S.C. Jan. 19, 2023) (calling for an MiEJScreeninformed analysis of service reliability to disadvantaged communities but not specifying what level of service reliability should be provided). 345. See, e.g., CaliforniaÊs CalEnviroscreen: Linking Economic and Racial Equity to Environmental Justice, THE NEW SCH.: INST. ON RACE, POWER, & POL. ECON., https://racepowerpolicy.org/measuring-what-matters/measuring-what(„[A] major shortcoming of matters-ca

[https://perma.cc/M2AA-MKL8]

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CalEnviroScreen, from a racial equity perspective, is the failure to directly include race and ethnicity in the data set.‰); Jesse Clarke, Digging Deep on CalEnviroScreen: Interview, CAL. GREEN ZONES (Feb. 8, 2021), https://calgreenzones.org/caroline-farrell-interview-on-cal-enviro-screen [https://perma.cc/ 7NFA-H224] (interviewing Caroline Farrell, Executive Director of the Center on Race, Poverty, and the Environment, who argued that excluding racial variables „doesnÊt make sense‰ and reflected „an over-sensitivity‰ on the part of state officials). 346. See Shrestha et al., supra note 169; Friedman, supra note 31. 347. See Dawn Reeves, Advocates Strongly Oppose CEQ Decision to Drop Race from EJ Tool, INSIDE EPA (Feb. 18, 2022), https://insideepa .com/share/234470 [https://perma.cc/7NNQ-UTLY] (describing CEQ Chairwoman Brenda MalloryÊs assertion that race-neutral applications can succeed). 348. See, e.g., U.S. DEPÊT OF THE INTERIOR, BUREAU OF LAND MGMT., UTAH – W. DESERT DIST., FILLMORE FIELD OFF., DOI-BLM-UTU-92201, CROSS-TIE 500-KV TRANSMISSION PROJECT FINAL ENVIRONMENTAL IMPACT STATEMENT, at 3-194 (2024), https://eplanning.blm.gov/public_projects/%2F2018636%2F 200519933%2F20119462%2F251019442%2FCross-Tie%20500kV%20 Transmission%20Project%20Final%20EIS_Chapters1-4_508%20(3).pdf [https: //perma.cc/3Q32-63ZX] (stating that environmental justice analysis will focus on impacts to minority populations). 349. See supra note 118 and accompanying text (describing MassachusettsÊs system); Maps and Geospatial Information System (GIS) Tools for Environmental Justice, N.Y. STATE DEPÊT OF ENVÊT CONSERVATION, https://dec.ny.gov/ get-involved/environmental-justice/gis-tools [https://perma.cc/Q9Y2-JLX3] (describing New YorkÊs criteria for identifying „Potential Environmental Justice Areas‰).

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350. See Town of Palm Tree v. Climate Just. Working Grp., No. 907000-23, at 2 (N.Y.S. Dec. 27, 2023) (rejecting the stateÊs motion to dismiss); Jones, supra note 137, at 458–59 (describing the litigation). 351. In re Palmer Renewable Energy, LLC, No. X224282, 2022 WL 17479440, at *56–59 (Mass. DepÊt EnvÊt Prot. Sept. 30, 2022) (rejecting the claim for a series of reasons, including the agencyÊs reliance on independently sufficient non-racial factors and a conclusion that „the Commonwealth had a compelling state interest to rectify this inequitable environmental situation‰). 352. Louisiana v. EPA, 712 F. Supp. 3d 820 (W.D. La. 2024); see Lisa Friedman, Judge Blocks E.P.A. from Using Civil Rights Law in Pollution Case, N.Y. TIMES (Aug. 23, 2024), https://www.nytimes.com/2024/08/23/climate/epa-civilrights-climate-justice.html [https://perma.cc/9HKK-9P34]. 353. 712 F. Supp. 3d at 832–33. 354. 40 C.F.R. § 7.35(b), (c) (2026). 355. 712 F. Supp. 3d at 859–63. 356. Id. at 859. 357. See id. at 860–61 (citing Ricci v. DeStefano, 557 U.S. 557 (2009 .

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A. THE ROLE OF EJ-MAPPING APPLICATIONS IN

ENVIRONMENTAL REGULATION

358. See Letter from Ashley Moody, Fla. AttÊy Gen., State of Fla., to Michael (Apr. 16, 2024), S. Regan, AdmÊr, U.S. EnvÊt Prot. Agency 1–2 https://www.myfloridalegal.com/sites/default/files/2024-04/epa-title-vi -comment-final.pdf [https://perma.cc/NU93-WBHB] (petitioning for rulemaking). 359. Id. at 1. 360. See Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 23, 2025). 361. See Office of Land and Emergency Management Program Benefits, U.S. 2025), ENVÊT

updated

AGENCY

PROT.

(last

Oct.

1,

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https://www.epa.gov/aboutepa/office-land-and-emergency-management -program-benefits [https://perma.cc/C9XP-7UAS] („Every year, more than 30,000 emergencies involving the release (or threatened release) of oil and hazardous substances are reported in the United States.‰); Biber & Ruhl, supra note 133, at 149–51 (describing the thousands of permits issued by environmental regulators). 362. See Lee, supra note 22, at 10206. 363. See 2024 Annual Report: Cap-and-Trade Auction Proceeds, supra note 35, at 6 (noting that CaliforniaÊs cap-and-trade revenues have funded 578,500 projects). 364. See Responses to Major Comments on the CalEnviroScreen 4.0 Public Review Draft, supra note 234, at 3–5 (describing comments from rural and northern California interests, many objecting that their communities tend to be excluded); Huynh et al., supra note 40, at 188 (warning that mapping applications may „place marginalized communities in competition for limited funds‰). 365. Among the areas discussed in this Article, Federal Clean Air Act Title V permitting, EISs prepared pursuant to NEPA, and municipal general planning in California are all examples of situations in which intensive analysis is becoming·or at least was, for a time·routine. See notes 268–270, 277–278, 313–318, 326–329 and accompanying text.

02_MIN_110_4_text.indd 1839 02_MIN_110_4_text.indd 1839

366. See Skinner-Thompson, supra note 51, at 402. 367. See supra note 263 and accompanying text (describing advocacy groupsÊ use of CalEnviroScreen in comment letters). 368. See Owen, supra note 30, at 246; Huynh et al., supra note 40, at 188. 369. See supra notes 249–54, 320–22 and accompanying text. 370. See Karkkainen, supra note 276, at 338–43 (discussing conflicting theories about what environmental impact analyses accomplish); Thomas Buhler, When Vagueness Is a Strategic Resource for Planning Actors, 20 PLAN. THEORY 325, 346 (2021) (describing how planners can use vagueness to avoid commitments).

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B. THE ROLE OF RACE IN EJ-MAPPING

371. See supra Parts II.B–C. 372. We base this statement partly on one authorÊs (Salazar KitnerÊs) experience working with a locally developed EJ-mapping application. In multiple ways, the absence of a state mandate raised the degree of difficulty. 373. Clarke, supra note 345; see HARRISON, supra note 193, at 12 (arguing that a core element of environmental justice is „race-conscious government policies to target and reduce racial environmental inequalities‰).

02_MIN_110_4_text.indd 1841 02_MIN_110_4_text.indd 1841

374. See supra notes 352–59 and accompanying text. 375. See, e.g., Jones, supra note 137, at 463–74; Starr, supra note 181. 376. The Supreme CourtÊs inclination toward sweeping pronouncements would make such lower court judgesÊ efforts easier. See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2172 (2023) (emphatically defending the idea that the Constitution requires colorblindness). 377. But see generally Wonyoung So & Catherine DÊIgnazio, Race-Neutral vs Race-Conscious: Using Algorithmic Methods to Evaluate the Reparative Potential of Housing Programs, BIG DATA & SOCÊY, July 2023, at 1. 378. See Naveena Sadasivam & Clayton Aldern, The White House Excluded Race from its Environmental Justice Tool. We Put It Back In., GRIST (Feb. 24,

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2022), https://grist.org/equity/climate-and-economic-justice-screening-tool-race [https://perma.cc/P6H5-GSGF] („Race is one of the most potent predictors of pollution burdens.‰); Emma Rutkowski, Alfredo Rivera & Eric G. OÊRear, Justice40 Initiative: Mapping Race and Ethnicity, RHODIUM GRP. (Feb. 24, 2022), https://rhg.com/research/justice40-initiative-mapping-race-and-ethnicity [https://perma.cc/MAD2-Z9CN] (finding that people in Justice40-eligible communities are much more likely to be Black or Latino than people in the nation as a whole); Off. of EnvÊt Health Hazard Assessment, Analysis of Race/Ethnicity and CalEnviroScreen 4.0 Scores, CAL. ENVÊT PROT. AGENCY (2021), https://oehha.ca.gov/media/downloads/calenviroscreen/document/calenviro screen40raceanalysisf2021.pdf [https://perma.cc/S4CU-YMS7] (finding that high CalEnviroScreen scores tend to correspond with predominantly Black and Latino communities). 379. See Sadasivam & Aldern, supra note 378 („By prioritizing communities with the greatest pollution burdens, [CEJST] has automatically prioritized communities of color as well.‰). 380. Those differences are most likely to affect poor and predominantly white communities, which are somewhat less likely to be included if race is a variable, and more middle-class communities with higher minority populations. But the key point is that in a nation where race and economic status are highly correlated, and in a system where race never has been the sole variable of importance, major changes in outcomes are unlikely. 381. See Analysis of Race/Ethnicity and CalEnviroScreen 4.0 Scores, supra note 378. But see Raoul S. Liévanos, Retooling CalEnviroScreen: Cumulative Pollution Burden and Race-Based Environmental Health Vulnerabilities in California, 15 INTÊL J. ENVÊT RSCH. & PUB. HEALTH 762, 780–82 (2018) (finding that a „retooled‰ CalEnviroScreen would place greater emphasis on Latino communities). 382. See Environmental Justice Grants, Funding and Technical Assistance, U.S. ENVÊT PROT. AGENCY (last updated Jan. 8, 2025), https://web .archive.org/web/20250203012905/https://www.epa.gov/environmentaljustice/ environmental-justice-grants-funding-and-technical-assistance [https://perma .cc/D4DS-94RW] (listing multiple environmental justice grant programs, none of which are contingent solely on minority status).

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383. See, e.g., supra note 282 and accompanying text (discussing New JerseyÊs mapping system). 384. An obvious answer to this dilemma is to argue that both deserve protection. Clearly, they do, but, where EJ-mapping applications are used to allocate limited funding or regulatory protections that lawmakers have chosen not to make universal, tradeoffs are inevitable. See Huynh et al., supra note 40, at 188. 385. See, e.g., Jonathan P. Feingold, Essay, All (Poor) Lives Matter: How Class-not-Race Logic Reinscribes Race and Class Privilege, 2020 U. CHI. L. REV. ONLINE, at *47–48 (2020), https://lawreview.uchicago.edu/online-archive/allpoor-lives-matter-how-class-not-race-logic-reinscribes-race-and-class-privilege [https://perma.cc/LUS3-24EA] (arguing that an exclusive focus on class undermines racial and class equity). 386. See generally Raj Chetty, Nathaniel Hendren, Maggie R. Jones & Sonya R. Porter, Race and Economic Opportunity in the United States: An Intergenerational Perspective, 135 Q.J. ECON. 711 (2020) (finding persistent racebased disparities in economic outcomes). 387. To provide an example, EJ-mapping applications do not include potential exposure to difficult (or deadly) interactions with police. See generally Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 CALIF. L. REV. 125 (2017).

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388. See, e.g., Kyla Thomas, The Labor Market Value of Taste: An Experimental Study of Class Bias in U.S. Employment, 5 SOCIO. SCI. 562, 587 (2018) (finding class-based preferences, though not for male applicants or for women in non-public-facing positions). 389. See, e.g., Lisa R. Pruitt & Linda T. Sobczynski, Protecting People, Protecting Places: What Environmental Litigation Conceals and Reveals about Rurality, 47 J. RURAL STUD. 326 (2016) (arguing against a conception of environmental justice that excludes rural white people). 390. See COLE & FOSTER, supra note 44, at 49–51, 93–94 (describing organizing efforts that struggled when they were unable to sustain cross-racial bridges). In some circumstances·for example, where the goal of the coalition builders is to unite different traditionally-disadvantaged communities of color· a racial narrative may still be helpful. 391. See Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2172 (2023) (emphatically defending the idea that the Constitution requires colorblindness); Exec. Order No. 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025).

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C. BEYOND THE MAPS

392. See supra Part II. 393. See supra notes 231–41 and accompanying text (discussing the difficulties with using mapping to allocate funding). 394. See, e.g., supra notes 287–97 and accompanying text (describing the New Jersey Department of Environmental ProtectionÊs controversial decision to approve a new natural-gas-fired electricity-generating unit in Newark). 395. See supra note 51 and accompanying text (criticizing current processes of participation). 396. See, e.g., Justice40: A Whole-of-Government Initiative, supra note 127 (not explaining why forty is the number, rather than something lower or higher). 397. See N.Y. ENVÊT CONSERV. LAW § 70-0118 (LexisNexis 2026) (limiting permits for projects that would cause or contribute to a „disproportionate environmental burden‰ for any disadvantaged community but leaving the phrase „disproportionate pollution burden‰ undefined). New JerseyÊs law is more specific; it treats a disproportionate impact as an impact that would contribute to pollution levels higher than those for the relevant reference communities. See N.J. ADMIN. CODE § 7:1C-1.5 (2025) (defining „[a]dverse cumulative stressors‰ and „[a]dverse environmental and public health stressor‰).

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398. See supra notes 343–44 and accompanying text (stating regulators fail to articulate what level of analysis and support is adequate). 399. See supra note 262 and accompanying text. 400. See Mitchell & Franco, supra note 84, at 5. 401. K-Sue Park, How Did Redlining Make Money?, JUST MONEY (Sept. 25, 2020), https://justmoney.org/k-sue-park-how-did-redlining-make-money [https://perma.cc/6UUZ-6NPW].

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402. See Mitchell & Franco, supra note 84; Moira OÊNeill, Giulia GualcoNelson & Eric Biber, Sustainable Communities or the Next Urban Renewal?, 47 ECOLOGY L.Q. 1061, 1069 (2020) (concluding that new housing development, much of it unaffordable, is targeting areas that were historically redlined).

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