Jenna Settino

November 30, 2001

Environmental justice advocates may endure yet another obstacle in the movement to require the fair treatment of all people with respect to environmental laws.[1]  InsideEPA Weekly reported on October 19, 2001 that the U.S. Environmental Protection Agency's (EPA) Office of Civil Rights (OCR) may abandon the agency's guidance for investigating civil rights complaints against Title VI of the 1964 Civil Rights Act.[2]  Title VI complaints allege discriminatory effects resulting from the issuance of pollution control permits by state and local governmental agencies that receive EPA funding.[3]  The Title VI Guidance, which has been in the draft stages since February 1998, is a manual for how the EPA will proceed with Title VI administrative complaints.[4]  The administrative complaint process is a viable and effective alternative to a private lawsuit because it allows citizens to ask EPA to deny operating permits for companies located in their communities.  Instead of abandoning the Guidance document, EPA should make an effort to finalize it so that communities can have a voice during the permitting process.

I. Title VI Background

On February 11, 1994, President Clinton issued Executive Order No. 12898, which directed all federal agencies to promote environmental justice "to the greatest extent practicable and permitted by law."[5]  Clinton also issued a Presidential Memorandum that required all federal agencies, "providing funding to programs affecting human health or the environment to ensure that their grant recipients comply with Title VI of the Civil Rights Act of 1964."[6]  Thus, EPA has to ensure that their permitting programs are nondiscriminating.

Section 601 of the Title VI of the Civil Rights Act of 1964 prohibits state agencies that receive federal funding from discriminating because of race, color, or national origin.[7]  This applies to 27 federal agencies that distribute an estimated $900 billion in Federal assistance annually.[8]  However, claims brought under section 601 actions challenging state permitting decisions are difficult to win because plaintiffs must prove an intent to create racially unequal environmental harms.[9]

Under Section 602 of Title VI, agencies that disburse federal funds are required to promulgate regulations implementing section 601.[10]  Further, agencies are required to create a type of manual describing how discrimination claims will be processed.[11]  Pursuant to Section 602, EPA has promulgated Title VI implementing regulations, which allows EPA to withold funding for hazardous facilities when the facilities will disproportionately affect minority populations.[12]  Thus, policies that result in discrimination violate EPA's Title VI regulations unless it is shown that regulations are justified and that there is no less discriminatory alternative.[13]

Suing a funding recipient directly under Section 602 provides several advantages over filing an administrative complaint with the EPA.  Lawsuits permit the plaintiffs to use discovery procedures in order to conduct their own investigation.[14]  In the administrative complaint process, a complainant has no role in EPA's investigation.[15]  Additionally, an administrative complaint only allows the removal of funding as a remedy.[16]  While lawsuits may provide equitable relief and/or lawyer's fees.[17]

II. The U.S. Supreme Court Eliminates Private Actions Brought Under Section 602

The Supreme Court's ruling in Alexander v. Sandoval virtually eliminated private Title VI actions to enforce regulations promulgated under section 602.[18]  In Sandoval, Martha Sandoval, a Mexican immigrant, and other plaintiffs filed a class action claiming that Alabama Department of Public Safety's policy of administering driver's license exams only in English created a disparate impact on minority applicants.[19]  The plaintiffs experienced disproportionate racial discrimination in violation of Title VI and the implementing regulations promulgated under Section 602 by the Department of Transportation and Department of Justice.[20]  In a 5-4 decision written by Justice Scalia, the court held that "neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under [Section] 602.  We therefore hold that no such right of action exists."[21]

Many civil rights lawyers were appalled with the decision.[22]  Robert Hernandez, chair of Association of Trial Lawyers of America's (ATLA) Civil Rights Section said, "What we've witnessed in this term is a broad assault on civil rights litigation and legislation."[23]  In addition, chief counsel of the Washington Legal Foundation stated that the ruling, "basically strikes down the entire environmental justice movement."[24]  Moreover, Justice Stevens wrote in his dissent, "Today, in a decision unfounded in our precedent and hostile to decades of settle expectations, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI."[25]

However, one court case suggests that courts may interpret Sandoval narrowly.  In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, residents of a predominantly African-American and Hispanic neighborhood sued to block St. Lawrence Cement Company from opening a $60 million cement plant.[26]  The plaintiffs believed that their health would be at risk from the plant's pollution.  Thus, the plaintiffs claimed that the New Jersey Department of Environmental Protection failed to consider the potential adverse, disparate impact of issuing an operating permit.[27]  The court granted plaintiffs preliminary injunction and held that a private claim does exist for disparate impact discrimination, in violation of the EPA's nondiscrimination regulations, brought under section 1983 of the Civil Rights Act.[28]  Although South Camden allowed a private right of action under section 1983 to enforce 602 regulations, as of now it is unclear whether courts will fellow this rationale.  The circuits are split over whether a party can bring a claim under section 1983 to enforce 602 regulations.[29]  It will be up to the Supreme Court to decide this issue.

III. EPA Is the Only Game in Town

After the disappointing verdict in Sandoval and the uncertainty of whether a private right of action exists under section 1983 to enforce 602 regulations, the EPA considers itself the only "game in town" because of its Title VI administrative complaint process.[30]

In February of 1998, EPA released the Interim Guidance For Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance).[31]  This intended "to provide a framework for the processing of EPA OCR complaints filed under Title VI of the Civil Rights Act of 1964...alleging discriminatory effects resulting from the issuance of pollution control permits by state and local governmental agencies that receive EPA funding."[32]

Both industry and environmental groups criticized the Interim Guidance for using vague definitions, failing to define the term "adverse environmental impact," and not suggesting how recipient might avoid Title VI complaints.[33]  In response to the criticism, EPA issued a Draft Revised Guidance for Investigation Title VI Administrative Complaints Challenging Permits (Draft Revised Guidance) in July 2000.[34]  The Draft Revised Guidance attempts to clarify how the OCR will process complaints, conduct its investigations, determine whether a permit decision creates unacceptable adverse impacts, and weigh efforts by the recipient to reduce or eliminate adverse disparate impacts.[35]  Now, the Guidance may be abandoned.[36]

Clearly, a finalized Title VI Guidance is needed because EPA has issued only one decision in the eight years that EPA has had section 602 regulations.[37]  Further, EPA's lack of investigation into Title VI complaints also suggests the need for a finalized Title VI Guidance.  As of August 10, 2001, the EPA has had 121 Title VI Complaints, 57 have been rejected, dismissed or referred to another federal agency.[38]  Concerning the remaining 64, 42 are under review for possible investigation, rejection, or referral and 22 have been accepted for investigation.[39]  Thus, 82 percent of claims go uninvestigated.

EPA attempted to address Title VI complaints by forming a task force.[40]  However, it is a bit disconcerting that a task force has been created without the finalization of a guidance document that would inform EPA, industry, states, and complainants of how to argue the issuance of a permit.  "I'm not optimistic about this task force, given EPA's past record," said Nathalie Walker of Earthjustice Legal Defense Fund in New Orleans.[41]  "They [EPA] don't know what to do with these claims.  And if they say they are going to move quickly now, I have even less confidence that it will be done right."[42]

IV. Congress Has Not Helped Finalize the Title VI Guidance

President Bush and Congress have hindered the formation of Title VI Guidance.  The 106th Congress issued Public Law 106-377, which prohibited the EPA from using 2001 appropriated funds to implement the Interim Guidance.[43]  Further, President George W. Bush appointed an EPA Administrator who did not know about the Title VI Guidance and its importance.[44]  During Governor Christine Todd Whitman's Congressional cabinet testimony, Senator Jon Corzine from Whitman's home state of New Jersey asked, "Do you have any comments on the Title VI guidelines, whether you feel like EPA's interpretations of those are ones that you would find consistent with your own?"[45]  Whitman answered, "Senator, I have to tell you very honestly, I am not totally familiar with EPA's current assessment and analysis of Title VI, and that will be something that I will look at immediately upon assuming office, if I get that far."[46]

The preparation of a finalized guidance has been at a standstill.[47]  One EPA employee has said that, "Nobody has worked on it in months."[48]  Sources indicate that the development of a finalized guidance has stalled since former OCR chief Anne Goode left the EPA.[49]

V. Conclusion

In three years, EPA has created a draft guidance and a revised draft guidance; conducted numerous public comment and listening sessions; and collected hundreds of comments from a variety of stakeholders.[50]  Yet, there is still no finalized guidance.  A finalized guidance is important in order for the EPA Title VI task force to know what complaints need to be investigated or dismissed.  Further, EPA has a legal responsiblity to adequatly investigate Title VI complaints.  In fact, the EPA has explicitly stated that environmental justice is its legal responsibility:

Like every community in America, minority communities want and deserve water that is safe to drink, lakes and rivers safe for fishing and swimming, air that is healthy to breathe and land free from toxic waste ... When some minority communities believe they have been disproportionately affected by pollution because of their race, EPA has a legal responsibility to address those complaints on their merits in a fair and timely manner.[51]

After Sandoval the administrative complaint process may be the fastest and cheapest means by which communties can stop the issuance of a permit.  As Maryland Governor Parris Glendening remarked, "All across the country there are certain communities that have health threatening impacts [that] can't go out and hire $100,000-a-year lawyers to defend them.  We've got to give them a voice."[52]

The EPA is most appropriate avenue for giving a voice to people who do not have one, and only a finalized Title VI Guidance would help strengthen that voice.

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[1] The U.S. Environmental Protection Agency describes environmental justice as, "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the executive of federal, state, local, and tribal programs and policies. U.S.Envrionmental Protection Agency. Office of Solid Waste and Emergency Response. Environmental Justice Background page, at http://www.es.epa.gov/occa/main/ej/http://www.es.epa.gov/occa/main/ej/.

[2] EPA Considers Dropping Controversial Environmental Justice Policy, 22 InsideEPA Weekly Report 9 (October 19, 2001).

[3] See U.S. Environmental Protection Agency, INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS [hereafter Interim Guidance] (February 1998) at http://es.epa.gov/oeca/oej/titlevi.pdf.

[4] See id.

[5] Exec. Order No. 12898, 3 C.F.R. 859 (1995), reprinted as 42 U.S.C. § 4321 (2001).

[6] Presidential Memorandum Accompanying Exec. Order 12898, 30 WEEKLY COMP. PRES. DOC. 279, 280 (Feb. 11, 1994).

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See INTERIM GUIDANCE, supra note 3.

[14] See Bradford Mank, Title VI, in THE LAW OF ENVIRONMENTAL JUSTICE 23-28 (Michael B. Gerrard, ed., 1999).

[15] See id.

[16] See id.

[17] See id.

[18] See Alexander v. Sandoval, 121 S.Ct. 1511 (2001).

[19] See id.

[20] See id.

[21] Id. at 1523.

[22] See Carolyn Magnuson, Disparate Impact Suits May Survive After High Court Ruling on Civil Rights Act, 37 TRIAL 17 (July 2001); See also Inner City Press' Environmental Justice Reporter at http://www.innercitypress.org/ejreport.html (April 30, 2001).

[23] Id.

[24] Inner City Press' Environmental Justice Reporter, supra note 22.

[25] Sandoval, 121 S.Ct. at 1524.

[26] See South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 505 (D.N.J. May 10, 2001).

[27] Id.
[28] See id, referring to Section 1983 of the Civil Rights Act states, "Every person who, under color of any statute, or regulationÖof any StateÖsubjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, priviledges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redressÖ" 42 U.S.C § 1983.

[29] Bradford C. Mank, Using § 1983 to Enforce Title VI's Section 602 Regulations, 49 U. KAN. L. REV. 321, 324 (January 2001).
[30] Inner City Press' Environmental Justice Reporter, supra note 22 at http://www.innercitypress.org/ejreport.html September 4, 2001.

[31] INTERIM GUIDANCE, supra note 3.

[32] Id.

[33] Bradford C. Mank, The Draft Title VI Recipient and Revised Investigation Guidance: Too Much Discretion for EPA and More Difficult Standard for Complainants?, 30 ELR 11144 (December 2000).

[34] U.S. Environmental Protection Agency, DRAFT REVISED GUIDANCE FOR INVESTIGATION TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS, 65 Fed. Reg. 39650 (June 27, 2000).

[35] See Mank, supra note 33 at 11144-45.

[36] Inside EPA Weekly Report, supra note 2 at 9.

[37] See Select Steel Complaint, EPA Title VI Administrative Complaint File No. 5R-98-R5 (October 30, 1998) available at http://www.epa.gov/ocrpage1/sssum1.htm (In Select Steel, the first case decided under the Interim Guidance, the complainant asserted that a proposed steel mill would create a disparate environmental effect on a minority community. The EPA concluded that no disparate impact existed because the proposed steel mill would not create any adverse effect upon the minority community. The EPA found that if there is no adverse effect from the permitted activity, there can be no finding of a discriminatory effect. The Select Steel decision suggests that EPA will not find violations of Title VI where the facility in question complies with relevant environmental and health standards.)

[38] See U.S. Environmental Protection Agency, Office of Civil Rights, SUMMARY INFORMATION ON TITLE VI COMPLAINTS FILED WITH EPA, at http://www.epa.gov/civilrights/docs/t6staug2001.pdf (August 2001); List of Title VI Complaints Filed with EPA at http://www.epa.gov/civilrights/docs/t6csaug2001.pdf (August 2001)

[39] See id.

[40] See Marcia Coyle, The EPA Braces to Clear Title VI Pileup, 10/15/01 Nat'l L.J. A12 (October 15, 2001).
[41] Id.
[42] Id.

[43] Id.

[44] Inner City Press' Environmental Justice Reporter, supra note 22 at http://www.innercitypress.org/ejreport.html January 12, 2001.
[45] Id.
[46] Id.

[47] Id.

[48] InsideEPA Weekly Report, supra note 2 at 9.

[49] Id.
[50] See Mank, supra note 33.

[51] U.S. EPA, No. R-94, EPA Seeks Comment on Title VI Proposal (June 16, 2000), at http://www.epa.gov/ocrpage1/t6_r-94.pdf.
[52] 52 Inner City Press' Environmental Justice Reporter, supra note 20 at March 25,2001.