It is easy to admire Dan Farber’s contribution to this symposium issue. Although this is Farber’s first article to address environmental justice in a significant way, the extraordinary breadth and quality of Farber’s scholarship—approximately two hundred books and law review publications during the past four-plus decades—readily offer a depth of expertise upon which he can now rely in considering how best to “[d]esign[] [r]ules to [a]ddress [r]ace, [p]overty, and [e]nvironmental [j]ustice.”1 Indeed, within the environmental law academy, there are few of Farber’s scholarly reach, which extends into civil procedure, constitutional law, contracts, disaster law, energy law, federal courts, First Amendment law, and somehow even federal income tax law.

The upshot is an insightful and exceedingly valuable contribution to existing legal scholarship on how best to design pollution control regulations that address environmental justice. As stated by the article itself, its contributions to legal scholarship are twofold. First, Farber well explains “how race, income, and other factors, such as education level, subtly enter into risk assessment.”2 Second, Farber skillfully proposes that regulators can most effectively address environmental justice in regulatory design by focusing “more intently on issues of unequal exposure and vulnerability.”3 According to Farber, the working “presumption should be that equal harms deserve equal resource commitments, which may require allocating more resources to areas where exposure levels or vulnerabilities are high.”4 Farber posits that such a regulatory focus will have the practical effect of making the heightened needs of environmental justice communities, including communities of color, a priority while avoiding the pitfalls of overtly relying on racial grounds in a way that the current Supreme Court conservative majority might find constitutionally objectionable.

I offer three reflections on Farber’s article. None is in the form of a serious objection to anything he has written. Each offers instead either a qualification or a further elaboration of a point the article makes. The first suggests that the role of cost–benefit analysis is more limited in the design of environmental regulations than a reader of the article might assume. The second is that the article’s seemingly incontrovertible recommendation for improving environmental regulations—providing for more “granular” study of the risks that environmental justice communities face5—overlooks one of environmental law’s most important lessons: more information is not always the optimal regulatory pathway. Finally, the article’s mention of the distinct ways that poor regulatory design may cause environmental injustice provides a timely opportunity to highlight one of the greatest challenges now facing environmental justice in the context of the design of environmental regulations: regulations addressing the compelling issue of climate change.

A reader of Farber’s article unfamiliar with environmental law might fairly assume, based on the article’s focus on the use of cost–benefit analysis and on how regulators could improve such analysis to promote environmental justice, that cost–benefit analysis plays a dominant role in how federal agencies establish environmental regulations such as pollution control requirements. But, by deliberate, long-standing, and repeated statutory design, cost–benefit analysis in fact plays no such central role. Indeed, that has been the major complaint of industry and many economists about environmental law for decades. They have argued that the failure to engage in rigorous cost–benefit analysis in the setting of most important environmental protection requirements leads to excessive, overreaching regulation because it has not been determined that the regulations’ benefits exceed their costs.6

For the past fifty years, however, those trumpeting these economic concerns have consistently failed to persuade Congress to amend any of the nation’s most significant environmental protection laws to require the application of rigorous cost–benefit analysis in the setting of pollution control limitations. The Clean Air Act, for instance, continues to require the Administrator of the U.S. Environmental Protection Agency (EPA) to set national ambient air quality standards for the entire nation without considering costs at all. The Administrator can consider only what concentrations of different types of pollutants in the ambient air are requisite to protect public health, with an adequate margin of safety, as well as public welfare.7 The states and the national government are then responsible for ensuring that those nationally uniform air pollution control standards are met.8 The Supreme Court famously in 2001 unanimously rejected the arguments of industry and many economists that the Court should either construe the Clean Air Act to allow the EPA to consider costs in its rulemaking so costs could be weighed against benefits in the setting of national standards or strike down the Act as unconstitutional.9

Nor is the Clean Air Act’s method of setting national standards absent cost–benefit analysis remotely aberrational. The front line of the regulatory requirements imposed on individual sources of pollution by the Clean Air Act for air pollution, the Clean Water Act for water pollution, and the Resource Conservation and Recovery Act for hazardous waste treatment, storage, and disposal are all technology-based standards independent of the kind of rigorous cost–benefit analysis businesses promote.10 With limited exceptions,11 the premise of those technology-based requirements is that the relevant industry should reduce its pollution as much as is “achievable” by the best “available” or “demonstrated” technology. If the technology’s cost is forbiddingly high, it is certainly a relevant factor in determining whether the best technology is “available,” “achievable,” or “demonstrated,” but the statute does not permit any weighing of costs against benefits to ensure that the benefits exceed the costs.12

Failing to achieve any amendments of the governing statutes, what those championing cost–benefit analysis have done over the years instead is (as described by Farber’s article) to persuade successive presidential administrations to issue a series of presidential executive orders that require federal agencies, such as the EPA, to engage in rigorous cost–benefit analysis prior to the promulgation of any major rule.13 The executive orders assign the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) responsibility for ensuring agency compliance with these orders. Because, moreover, environmental regulations invariably apply to much of the nation’s economic activity, most every remotely significant environmental protection rule easily amounts to a “major rule” and consequently triggers this OIRA requirement.

Yet, therein lies the rub. It is of course axiomatic that the President cannot by executive order amend the factors that Congress has instructed an agency such as the EPA to consider in the setting of environmental protection requirements. Not surprisingly, for that reason, every presidential order requiring the EPA to engage in such cost–benefit analysis in conjunction with its rulemakings acknowledges that essential limitation.14 The upshot is often something of a bizarre agency rulemaking charade. The Agency is required by executive order to create a cost–benefit analysis and to submit it to OIRA for its review, but the Agency must nonetheless ignore that cost–benefit analysis in actually setting the relevant environmental protection requirement.15

My claim is of course not that cost–benefit analysis is completely missing in all aspects of the setting of environmental requirements. Such analysis can play a role in environmental law’s interstices—for instance, when a state is exercising its discretion in deciding which among several sources of pollution needs to reduce its pollution even more than required by technology-based requirements because the existing standards are still not sufficiently protective of public health and the environment.16 The point is only that the role of cost–benefit analysis in the setting of environmental protection requirements is much more limited than readers of Farber’s article might fairly assume from the article’s focus and, for that reason, “fixing” such analysis is likely to have less of an impact on environmental justice than they might suppose.

I agree with Farber’s recommendation that a heightened focus on exposure and vulnerability “offers the most promising path forward for environmental justice.”17 I am less sure that I share Farber’s view that the best way to achieve this heightened focus is for environmental regulators to gather more granular data on vulnerability. Farber recommends that the EPA improve its data on a community-level basis, taking into account mortality risks, comorbidity rates, pollution levels, and other related factors such as education level, socioeconomic status, and the availability of medical care.18 Although Farber leaves little doubt that he believes (as do I)19 that there is a significant racial dimension to the prevalence of disproportionate pollution in communities of color, he worries whether statistical analysis extending to race might later turn out to be legally problematic given the apparent views on racial distinctions currently held by a conservative majority of six Supreme Court Justices.20

Farber’s recommendation for further, more granular scientific study that does not currently exist should seem obviously correct. So, why I do nevertheless worry that even if more scientific information is always valuable, such study is not necessarily the best path forward now? Because the history of this nation’s environmental laws, especially what has worked and not worked well, counterintuitively suggests it is not.

The framers of our nation’s groundbreaking environmental protection laws of the 1970s did something truly genius. In none of those laws did they make the degree of environmental protection achieved in the first instance turn on the most exacting of economic and scientific analysis. Most reflective of this deliberate policy decision was their refusal, already described, to require rigorous cost–benefit analysis in the setting of environmental protection standards, notwithstanding the obvious surficial policy appeal of doing so.

One reason was the oft-expressed and clearly correct concern of environmentalists that cost–benefit analysis, no matter how “rigorous” in name, would inevitably give environmental protection short shrift, for two reasons. The first is that, unlike the costs of environmental protection requirements, many very important environmental benefits are not readily susceptible to monetization, or are realized only in the future, and are therefore much harder for those concerned about the harm caused by pollution to prove. By contrast, those businesses potentially subject to environmental protection regulations would have ample resources to establish the immediate short-term costs of regulations and to mask the potential for future technological innovations to lower those costs over time.21

The second reason that the congressional drafters shied away from requiring cost–benefit analysis, however, was even more telling for the environmental justice issue now at hand. The drafters appreciated that the enormous complexity of scientific cause and effect in assessing human health and environmental harms caused by pollution could easily bury any effective lawmaking effort in decades of factfinding. In short, while it might make great abstract sense to require that the nation’s environmental protection requirements be developed only after discovery of all the theoretically relevant scientific facts and economic costs, such a sensible approach was instead more likely a recipe for disastrous delay.22

So, Congress deliberately embraced the stunningly innovative approach of narrowing the relevant facts that needed to be discovered to set those ambitious standards. No detailed scientific study of environmental harm’s cause and effect would be required to determine or justify these standards. Instead, the degree to which a source of air pollution or water pollution, or those treating, storing, or disposing of hazardous waste, would be required to reduce their pollution would be determined in the first instance on the basis of a series of technology-forcing standards. And only if those technology-based standards proved insufficient to protect public health and the environment would scientific study be needed to justify even further reductions in pollution. For Congress, the practical advantages of tough, demanding standards sooner far outweighed the otherwise natural preference to promulgate environmental protection standards based on all theoretically relevant scientific information.23

That is why the Clean Water Act first imposes demanding technology-based effluent limitations on new and existing sources of water pollution without any accounting of the actual harms caused by their discharges. And only later, if it is learned that even more stringent controls are needed, do requirements of more scientific study of the cause and effect of the harm caused by pollution kick in.24 Because of scientific factfinding demands, moreover, the implementation of those further requirements has been delayed by decades.25 The same initial reliance on technology-forcing standards is reflected in the Clean Air Act’s pollution controls applicable to stationary source emissions of criteria pollutants, hazardous pollutants, and motor vehicle emissions as well as in the pollution controls applicable in the first instance under the Resource Conservation and Recovery Act.26

Indeed, the history of Congress’s efforts to regulate hazardous air pollution emissions well illustrates the pitfalls of basing environmental regulation in the first instance on rigorous scientific proof of cause and effect on human health. When Congress passed the Clean Air Act Amendments of 1970, the legislators deliberately chose to regulate hazardous air pollution more strictly than other air pollutants, using health-based rather than technology-based standards. The justification for such a seemingly more demanding standard was obvious: hazardous pollutants were by definition more dangerous and accordingly required a more stringent standard.27

The perverse upshot, however, was quite different. The demands of scientific inquiry and the associated political and legal challenges28 totally paralyzed the setting of hazardous air pollution emission standards. The EPA enacted virtually none as a result. It was not until twenty years later, after Congress in 1990 completely reformed the bases of hazardous air pollution regulation—to apply instead technology-based standards in the first instance—that the EPA was able to begin to break what had been a twenty-year regulatory logjam and effectively begin, finally, to regulate hazardous air pollutants.29

The short lesson of environmental law’s related story is that less can be more. As applied to Farber’s call for a heightened focus on exposure and vulnerability to address the needs of environmental justice communities, that means the best approach may not be to undertake the detailed, highly granular studies of those communities suggested by the article. Or at least not do so in the first instance. Instead, the best approach may be to assume at the outset that those communities are suffering from disproportionate environmental burdens and immediately target them for enhanced enforcement of existing standards without any additional scientific proof required. Such targeting takes into account the aggregations of burdens that occur when a community is suffering from pollution from a wide variety of sources.

Farber’s article, to its credit, acknowledges the role of environmental enforcement.30 But I think it understates by lack of emphasis the relief that can be provided by government environmental enforcement officials fully and strictly enforcing existing environmental protection requirements. Such relief would be immediate, the settlements secured could obtain relief far beyond the requirements themselves through supplemental environmental projects,31 and the essential message—the downside of concentrating the siting of polluting facilities in certain communities—would quickly be delivered to industry. Industry would learn that those communities are no longer places where they can safely assume that less enforcement will occur. Just the opposite would become standard operating procedure.

Indeed, at least two states—California and New Jersey—have already adopted this environmental justice–targeted approach. They have each established offices within their respective Offices of the Attorney General dedicated to ensuring strict compliance with environmental protection requirements in environmental justice communities.32 They do not begin their enforcement by first trying to gather all the information required to decide what parts of the state are the most vulnerable and the most exposed. For environmental justice communities, they far more simply assume thresholds based on decades of experience and understanding of the tendencies within environmental law to create disproportionate burdens.33

Accordingly, those state environmental enforcement officials first identify the communities that have in the past proven to be the most vulnerable and exposed and then place those communities under an enforcement microscope to identify all possible violations of environmental protection requirements. The federal government’s current efforts, mentioned in Farber’s article,34 to create a federal test for identifying environmental justice communities offer the promise of the federal government initiating a similar federally targeted series of environmental justice actions nationwide. All this can occur without first undertaking the kind of highly granular scientific data gathering that Farber’s article recommends.

The Biden administration deserves praise for making both climate change and environmental justice top priorities and for further linking the two in a sweeping executive order that the President issued only one week into his new administration.35 Each is independently compelling and even more so in combination. But within that celebration of their marriage there is major conflict brewing, incidentally hinted at in Farber’s article and warranting a closer look.

In describing how environmental regulation could be improved, Farber’s article properly acknowledges, although without elaboration, the two distinct ways that environmental regulations relate to environmental justice.36 The first is that environmental regulations fail to address the heightened environmental risks and vulnerabilities faced by low-income communities and communities of color. Those crafting the regulations, for instance, make assumptions that fail to take account of heightened exposure pathways and background morbidities regularly found in such communities that exacerbate pollution’s impacts on individual health. And because of these failures, they underestimate the possibility that the pollution control standards they choose will prove inadequate to protect human health. As described above, Farber’s article proposes ways that the design of environmental regulations, by taking more granular account of exposure pathways and community vulnerabilities, could better address environmental justice by reducing inequities.

The second way that environmental regulations relate to environmental justice is even more troubling than the first. It is not just that environmental regulations may fall short in addressing the heightened risks faced by environmental justice communities. The concern is that those same regulations may actually make those communities worse off.

Here’s how. Until environmental justice activists in the late 1980s and early 1990s shook the foundations of what I would describe as the then-prevailing “environmental lawmaking establishment”—federal and state environmental regulators and the national environmental law public interest groups—those that shaped our pollution control standards paid essentially no attention to such distributional concerns.37 Their working assumption was that if pollution disproportionately afflicted low-income and racial minority communities, tough pollution control rules would necessarily be progressive in effect.38 Pollution would be reduced everywhere commensurate with the new pollution control requirements, and those communities where pollution was worse would accordingly realize the greatest reductions. Given environmental regulations’ natural progressivity, there was no need for those crafting them to consider distributional effects of environmental regulations such as pollution control standards in the first instance.39

Environmental justice community activists, supported by groundbreaking scholars far outside the legal academy,40 shattered that assumption.41 Partly by legislative design and partly by the absence of parity in the enforcement of environmental regulations, environmental regulations were instead promoting the aggregation of environmental risks in environmental justice communities. To be sure, the risks to human health of pollution were being significantly reduced on a nationwide basis, but residual risks, even while being reduced overall, were being shifted geographically within the nation. And a disproportionate share of the residual risks was now increasingly concentrated in low-income communities and communities of color.42

That is why hazardous wastes were disproportionately found in those communities and why those communities had higher levels of air pollution. The long-standing assumption that environmental protection would be progressive by default turned out to be untrue. By frequently focusing on individual facilities’ compliance with environmental controls, the statutes failed to anticipate and account for the cumulative risks created when multiple facilities located themselves in the vicinity of the same communities. This was especially true for operations, such as hazardous waste treatment, storage, and disposal facilities, designed to clean up the rest of the nation’s mess.43

Nor could the facts on the ground be simply explained by the lack of economic and political power of those communities. To be sure, those factors undoubtedly play a significant role. Environmentally undesirable activities for which there is sufficient market demand to make them profitable will locate wherever there is a path of least regulatory resistance.44 But a series of statistical analyses have consistently shown that there is also a distinct racial dimension to the resulting environmental inequities.45

Farber’s article describes one example of this potential for environmental regulation to unwittingly exacerbate the environmental burdens faced by environmental justice communities.46 To address the growing threat of climate change, the State of California promoted a tradeable emissions program that would decrease overall greenhouse gas emissions by allowing companies that could reduce their emissions less expensively to be paid for emissions reductions by companies for which it would be more expensive to reduce their own emissions. The policy justification for such a market is that the desired overall reduction of emissions is achieved at a lower possible cost. Given, moreover, that greenhouse gases are your classic fungible pollutant—the precise geographic location across the globe of any particular source of greenhouse gas emissions makes absolutely no difference to climate change—the wisdom of California’s approach seemed clear.

But what California failed to anticipate was environmental justice community claims that this policy would lead to increases in the amount of harmful pollution from which they were already suffering. They contended that industrial facilities within their communities would more likely be the purchasers of the right to emit more greenhouse gases and therefore would be able to increase their operations more than if they were themselves required to reduce their greenhouse gas emissions. And, although greenhouse gas pollutants might be fungible, the same could not be said of the other environmental burdens that would be inflicted upon those communities by such increased operations, such as increased emissions of particulate matter.47 A court agreed with environmental justice activists that the state had failed to take adequate account of this potential, to the embarrassment of both state environmental officials and their supporters in national environmental public interest groups.48

A quarter century later, the Biden administration and the national environmental organizations face this same potential conflict on a much larger national scale. They care deeply about environmental justice, but they simultaneously believe that climate change threatens potentially catastrophic harm and that time is running out for some of its worst impacts to be avoided. Neither of their concerns is at all misplaced.49

The problem is that addressing climate change in the near term will require the expedited siting and licensing of thousands of large utility-scale solar and wind turbine electricity-generating facilities. It will require expedited production of hydrogen fuel and hydrogen fuel cells and the siting and licensing of their associated facilities. It will require the expedited mining of rare metals, such as lithium, to support production of the batteries necessary for the electrification of motor vehicles and other products previously reliant on fossil fuels. And it will require the siting and licensing of millions of miles of transmission lines to support a national grid capable of consistently bringing energy from renewable sources to the nation’s communities. Even more controversially, it may require reliance in the near future on natural gas, which in turn depends on the siting and licensing of interstate natural gas pipelines as well as natural-gas fracking.

Environmental justice advocates, however, understand that the past can easily become prologue and any such national effort to expedite siting and licensing of all these facilities may disproportionately harm their communities. Expedition can easily mean that affected communities lose their voice in the permitting decisions hastily made in the deafening (yet understandable) rush to address climate change before it’s too late. If so, environmental justice communities understandably worry that they will be where the lithium mining and natural-gas fracking occurs, where the utility-scale renewable energy electricity-production facilities are located, and where the transmission lines are sited.

The looming conflict within the Biden administration over how to reconcile the need for expedited climate action with environmental justice is why environmental justice activists did not universally celebrate congressional passage of the Inflation Reduction Act in 2022, even though that Act provides for the unprecedented distribution of tens of billions of dollars to address the needs of environmental justice communities.50 They did not all share the unqualified excitement of climate activists about the IRA’s appropriation of billions of dollars to support the transformation of the nation’s energy system to reach the Biden administration’s ambitious goal of securing a 100% clean electrical grid by 2035 and reaching net-zero carbon emissions by 2050.51 While some joined in the White House event celebrating the law’s passage, others harshly condemned the law on the ground that the Act did not amount to a “climate justice” bill.52 The seriousness of the Biden administration’s concern about this growing tension between expeditiously addressing climate change and promoting environmental justice is underscored by the Federal Energy Regulatory Commission’s recent announcement of a “Roundtable on Environmental Justice and Equity in Infrastructure Permitting.”53

I end where I began. Dan Farber’s article is a terrific addition to environmental justice scholarship. His scrutiny of cost–benefit analysis’s shortcomings in promoting environmental justice is persuasive, and his recommendations for how such analysis could theoretically be improved are sound, original, and seemingly irrefutable. My responsive comments are simply that environmental law’s history nonetheless throws a bit of cold water on the practical weight and even possibly the practical wisdom of some of those reforms. And the biggest challenge environmental justice may soon face—in collision with expedited efforts to address climate change—may occur largely outside the arena of cost–benefit analysis.


Daniel A. Farber, Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, 3 Am. J. L. & Equality 2, 2 (2023).


Id. at 7.






Id. at 2, 7, 46.


Richard J. Lazarus, The Making of Environmental Law 110–13, 149–51 (2d ed. 2023).


See 42 U.S.C. § 7409(b) (Clean Air Act).


42 U.S.C. § 7410.


Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).


For examples from the Clean Air Act, see 42 U.S.C. §§ 7411(a)(1) (“best system of emissions reduction … adequately demonstrated” for stationary sources), 7412(d) (“maximum achievable control technology” for sources of hazardous air pollutants), 7475(a)(4) (“best available control technology” for new major stationary sources located in areas meeting national air quality standards), 7503(a)(2) (“lowest achievable emission rate” for new major stationary sources located in areas not meeting national air quality standards), 7521(a)(3)(A) (“greatest degree of emission reduction achievable through the application of technology … available” for heavy duty vehicles). For examples from the Resource Conservation and Recovery Act, see 42 U.S.C. §§ 6924(m) (“treatment standards for wastes subject to land disposal prohibition”), 6924(o) (“minimum technological requirements” applicable to hazardous waste storage facilities). When, moreover, some cost–benefit analysis is permitted, it is not necessarily the kind of rigorous cost–benefit analysis that its advocates contemplate. See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009) (acknowledging that “arguments may be available to preclude such a rigorous form of cost–benefit analysis”); Michigan v. EPA, 135 S. Ct. 2699, 2711 (2015) (“We need not and do not hold that the law unambiguously required the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis.”).


Three examples of limited exceptions include the Clean Water Act’s technology-based limitations applicable to cooling water intake structure, those limitations applicable pursuant to that same Act to a category of sources that emit so-called conventional pollutants (referring to the same pollutants discharged by a publicly owned treatment works), and the EPA’s determination of whether it is “appropriate” to regulate the emissions of hazardous pollutants pursuant to the Clean Air Act. See 33 U.S.C. §§ 1314(b)(4)(B), 1316(b); 42 U.S.C. § 7412(n)(1)(A).


Lazarus, supra note 6, at 301–02.


See Farber, supra note 1 (citing Exec. Order No. 12,291, 3 C.F.R. 127 (1981); Exec. Order No. 12,866, 3 C.F.R. 638, 638–39 (1994); Exec. Order No. 13,422, 72 Fed. Reg. 2763 (2007); Exec. Order No. 13,563, 3 C.F.R. 215, 215 (2012); Exec. Order No. 13,771, 83 Fed. Reg. 9339 (Jan. 30, 2017); Memorandum, 86 Fed. Reg. 7223 (2021); Exec. Order No. 13,990, 86 Fed. Reg. 7037 (2021)).


See, e.g., Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011) (“to the extent permitted by law, each agency must …”).


See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 471 n.4 (2001) (“Respondents’ speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS [National Ambient Air Quality Standard], because the Administrator had not followed the law.”).


See 33 U.S.C. § 1313(d) (state establishment and assignment of total maximum daily load pollutant limitations to dischargers of pollutants into navigable waters not meeting state water quality standards); 42 U.S.C. § 7410 (state implementation plans for ensuring that states meet national ambient air quality standards).


Farber, supra note 1, at 44.


Id. at 43–48.


Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 806–08 (1993).


Farber, supra note 1, at 43.


See id. at 12 n.48 (citing Douglas A. Kysar, It Might Have Been: Risk, Precaution, and Opportunity Costs, 2 J. Land Use 1, 6 n.23 (2006), as listing “key critical works” of cost–benefit analysis).


See, e.g., EPA v. Cal. State Water Res. Control Bd., 426 U.S. 200, 202–03 (1976) (describing pitfalls, rooted in the complexity of the science of water ecology, of basing Clean Water Act regulation on the “tolerable effects” of water pollution); S. Rep. No. 92-414, at 1426 (1973) (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress) (describing “the great difficulty associated with establishing reliable and enforceable precise effluent limitations on the basis of a given stream quality. Water quality standards, in addition to their deficiencies in relying on the assimilative capacity of receiving waters, often cannot be translated into effluent limitations … because of the imprecision of models for water quality and the effects of effluents in most waters.”).


Cf. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 232 (2009) (Breyer, J., concurring in part and dissenting in part) (“[T]he Act’s sponsors had reasons for minimizing the EPA’s investigation of, and reliance upon, cost–benefit comparisons. The preparation of formal cost–benefit analyses can take too much time, thereby delaying regulation. And the sponsors feared that such analyses would emphasize easily quantifiable factors over more qualitative factors (particularly environmental factors, for example, the value of preserving nonmarketable species of fish). See S. Rep. [No. 92-414], at 47 [(1971)]. Above all, they hoped that minimizing the use of cost–benefit comparisons would force the development of cheaper control technologies; and doing so, whatever the initial inefficiencies, would eventually mean cheaper, more effective cleanup.”).


See 33 U.S.C. § 1313(d).


Lazarus, supra note 6, at 304–05.


See supra note 10.


See Clean Air Act Amendments of 1970, Pub. L. No. 91-604, § 112, 84 Stat. 1676, 1685–86 (1970).


See National Emission Standards for Hazardous Air Pollutants; Proposed Standards for Inorganic Arsenic, 48 Fed. Reg. 33,112, 33,114 (July 20, 1983) (acknowledging challenges of basing emissions standards on a scientific showing of harm to human health: “This fact, coupled with the known variability to carcinogenesis and the predisposition of some individuals to some form of cancer, makes it extremely difficult, if not impossible, to identify a threshold.”); Nat. Res. Def. Council, Inc. v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (en banc) (striking down EPA’s rule for regulating vinyl chloride hazardous air pollutant emissions for impermissibly considering economic costs rather than solely considering human health impacts).


See 42 U.S.C. § 7412 (Clean Air Act).


Farber, supra note 1, at 4.


Supplemental Environmental Projects, U.S. Envt Prot. Agency, (“Most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. As part of a settlement, an alleged violator may propose to undertake a project to provide tangible environmental or public health benefits to the affected community or environment, that is closely related to the violation being resolved, but goes beyond what is required under federal, state or local laws.”) (last visited Sept. 27, 2023).


Environmental Justice, Off. of the Cal. Atty Gen.,; Environmental Justice, Off. of the N.J. Atty Gen.,


Environmental Justice, Off. of the Cal. Atty Gen., supra note 32; Environmental Justice, Off. of the N.J. Atty Gen., supra note 32.


Farber, supra note 1, at 15.


Tackling the Climate Crisis at Home and Abroad, Exec. Order No. 14,008, 86 Fed. Reg. 7619 (Jan. 27, 2021).


Farber, supra note 1, at 39 (“But avoiding harm to communities of color might not be considered sufficient. Instead, improving the welfare of those communities may be the goal.”).


Phillip Shabecoff, Environmental Groups Told They Are Racists in Hiring, N.Y. Times (Feb. 1, 1990),


Richard J. Lazarus, Environmental Racism! That’s What It Is, 2000 U. Ill. L. Rev. 255, 260–61.


Lazarus, supra note 19, at 801–06.


Id. at 791, 801–03.


Lazarus, supra note 38, at 257–58 (describing impact on environmental law of claims of environmental racism within environmental law).


Lazarus, supra note 19, at 794, 801–06 (describing how environmental protection requirements result in the geographic shifting of environmental risks from one location to another and noting the potential for such redistributions to be to the systemic detriment of environmental justice communities).


See, e.g., Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990); Benjamin Chavis & Charles Lee, United Church of Christs Commission for Racial Justice, Toxic Waste and Race in the United States (1987).


Lazarus, supra note 19, at 808–22.


See, e.g., U.S. Envt Prot. Agency, Climate Change and Social Vulnerability in the United States: A Focus on Six Impacts 6 (Sept. 2021) (“Black and African American individuals are 34% more likely to live in areas with the highest projected increase in childhood asthma diagnoses due to climate-driven changes in particulate air pollution.”); Christopher Tessum et al., PM2.5 Polluters Disproportionately and Systematically Affect People of Color in the United States, Sci. Advances (Apr. 28, 2021), (EPA-funded peer-reviewed publication).


Farber, supra note 1, at 35.




California: Judge Blocks Cap-and-Trade Plan, N.Y. Times (May 20, 2011),, (describing state court ruling enjoining California’s cap-and-trade air emissions climate program on the ground of failure to adequately consider potential adverse impacts on environmental justice communities).


Brad Plumer et al., Time Is Running Out to Avert a Harrowing Future, Climate Panel Warns, N.Y. Times (Feb. 28, 2022),


Hannah Perls, Breaking Down the Environmental Justice Provisions in the 2022 Inflation Reduction Act, Harv. L. Sch. Envt & Energy L. Program (Aug. 12, 2022), (“[T]he IRA includes $40 billion in direct benefits for communities with EJ concerns.”).


Exec. Order No. 14,057, 86 Fed. Reg. 70,935 (Dec. 8, 2021).


Press Release, Climate Justice Alliance, The Inflation Reduction Act Is Not a Climate Justice Bill (Aug. 6, 2022), (“We Can’t Allow Frontline Communities to Be Sacrificed by Catering to the Profit Interests of the Dying and Outdated Dirty Energy Industry”); Leslie Kaufman, Climate Bill Compromises Leave a Sour Taste with Activists, Bloomberg News (Aug. 16, 2022),


See Fed. Reg. 7424 (Feb. 3, 2023).

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