Toxic Discretion: Environmental Inequality and the Discretionary Function Exception

Sarah E. Barritt*

Environmental racism is far reaching and insidious, and each of these devastating instances and the institutional factors that led to them could and should be the subject of entire books in their own right. The EPA and other agencies of the United States government are complicit in multiple ways, not least of all through their abject failures to properly regulate private industry pollution in BIPOC communities. However, this Note has cabined its analysis to the government’s failure to warn these communities of environmental contamination, and what happens when it hides behind the discretionary function exception in ensuing litigation. To provide necessary context, Part I serves as a primer on the discretionary function exception, beginning with sovereign immunity and the Federal Tort Claims Act generally and then tracking the Supreme Court’s treatment of the exception. Part II reviews the lower courts’ application of the exception in cases where the government has failed to warn of environmental contamination, analyzing the unworkability of the current jurisprudence and the resulting exacerbation of environmental inequalities. After that, however, it goes on to highlight several cases in which courts declined to apply the exception and discuss the possible implications of their reasoning. Part III analyzes the government’s duty to warn of environmental contamination, and argues that such failures are not a permissible exercise of discretion such that the failures would be excepted from liability under the Federal Tort Claims Act, particularly in light of overriding considerations of environmental justice and the EPA’s own policy to mitigate environmental racism.

*J.D. Candidate, University of Notre Dame Law School, 2024; B.A. in Political Science and Minor in English, University of California, Los Angeles, 2016.  Thank you to Professor Jay Tidmarsh for teaching me how to sue the federal government.  I would also like to thank my friends and colleagues on the Notre Dame Law Review for their hard work on my article.  And as always, I am deeply grateful to my fiancé Bryan Conner, for his endless love and support and for always making sure I eat; I would not be where I am today without you.  All errors, and I’m sure there are some, are my own.