Michael Zywicki

October 10, 2002

On April 19, 2001, environmental justice advocates enjoyed a major victory when a New Jersey federal judge issued a ruling invalidating a local air permit because of its 'disparate impact' on low-income neighborhoods and persons of color.[1]   Five days later on April 24th, the Supreme Court snatched the victory away by ruling there is no private right of action to sue under Title VI of the 1964 Civil Rights Act to enforce disparate impact regulations.[2]   The Supreme Court's decision invalidates the most common theory used by environmental justice advocates in challenging agency decisions that fall short of intentional discrimination, but disproportionately impacting minority or low-income neighborhoods. [3]   Furthermore, language in the Court's decision all but invites a challenge to the entire concept of using Title VI to advance a disparate impact claim, even if such action is directly undertaken by an agency.[4]   This editorial will discuss Title VI and how it is used to challenge agency decisions, court cases pertaining to the use of Title VI, and, finally, the current state of the environmental justice movement.

Proof of purposeful intent to discriminate is required to sustain a claim under the Equal Protection Clause of the 14th Amendment to the United States Constitution, although few environmental justice cases predicated on this constitutional theory prevail. [5]   After unsuccessful efforts to legally redress these impacts using the Equal Protection Clause, environmental justice advocates turned to Title VI of the Civil Rights Act of 1964.[6]   Within Title VI, §§ 601 and 602 provide two ways in which minorities may seek redress for discrimination in federally funded programs and activities.[7]   Section 601 states, "no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving federal financial assistance."[8]   Section 602 requires agencies that disperse federal funds to promulgate regulations implementing § 601 and to create an enforcement framework that details the manner in which discrimination claims will be processed.[9]   In pertinent part, § 602 regulations prohibit the Environmental Protection Agency[10] funded entities from using "...criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex . . ." [11]   Because most state environmental permitting agencies receive some federal financial assistance, state agency actions, including permitting decisions, are within the ambit of Title VI protection.[12]   In addition, the § 602 regulations also allow private citizens to file complaints with federal agencies alleging that a recipient is committing discriminatory acts.[13]   Once a complaint is filed, the federal agency then conducts its own investigation and decides if the recipient has committed discriminatory violations.[14]

In addition to §§ 601 and 602, environmental justice advocates use § 1983 to establish a cause of action for agency actions resulting in disparate impact. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . [15]

To establish a § 1983 claim, environmental justice advocates need only prove that the effect of the agency's decision will have a disparate impact on the community. [16]   The environmental justice movement owes its entire momentum to Title VI §§ 601, 602, and 1983 and they were relatively successful until last year.

On April 19, 2001, United States District Court Judge Stephen Orofsky issued a ruling in South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot.("SCCIA I"), 145 F. Supp.2d 446 2001, which held that the New Jersey Dep't of Envtl. Prot. violated § 602 of Title VI of the Civil Rights Act of 1964 by failing to consider the potentially adverse, disparate impact of their decision to grant St. Lawrence Cement Co.'s application for air permits to operate its proposed facility. [17]   Judge Orlofsky relied heavily upon the EPA's two draft guidances for implementing the agency's Title VI regulations, which specifically prohibit state environmental agencies receiving federal funds from making permit decisions that have a disparate impact on minority and low-income neighborhoods. [18]   The ruling was based on the assumption that an implied private right of action exists under § 602 of Title VI. [19]

Then, on April 24, 2001, five days after Judge Orlofsky issued his opinion in SCCIA I, the Supreme Court, in Alexandar v. Sandoval, [20] held that § 602 does not provide an implied private right of action to enforce disparate impact regulations promulgated by federal agencies pursuant to § 602. [21]   Writing for the majority, Justice Scalia stated: "Neither as originally enacted nor as later amended does Title VI display an intent to create a free standing private right of action to enforce [these] regulations." [22]   Furthermore, Justice Scalia indicated the Court has never explicitly ruled whether federal agencies may use § 602 to prohibit disparate impact, when such unintentional discrimination is not prohibited by § 601. [23]

The effect of Justice Scalia's decision in Sandoval is very profound.   For over fifty years, Civil Rights advocates challenged agency decisions using § 602.   There was extensive case law which established that an implied private right of action existed under § 602.   Furthermore, Justice Scalia indicated § 1983 may not be used to enforce a violation of § 602 because § 601 does not prohibit unintentional discrimination. [24]   The only way advocates can challenge agency decisions is to prove intentional discrimination.   Requiring plaintiffs to prove intentional discrimination to substantiate disparate impact claims, without alternate legal mechanisms, will sound the death knell for the environmental justice movement.

Without a private right of action, citizens disportionately affected by agency decisions will have to rely on the EPA to enforce its own regulations; although, that is unlikely to happen.   As of November 30, 2000, the United States EPA Office of Civil Rights had received 108 Title VI complaints. [25]   To date, only one complaint had been decided on the merits. [26]   Environmental justice groups are extremely limited to the number of tactics they can use to stop disparate impact.   Congress must address this issue by amending Title VI to explicitly provide a private right of action to challenge agency decisions that have a disparate impact on minority and low-income neighborhoods.   Until the citizens of the United States have the right to a private cause of action to enforce environmental regulations, businesses and government agencies do not have enough incentive to avoid decisions which result in disparate impact.

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[1] Supreme Court Puts Skids on EJ Litigation, 14 No. 22 CAL. ENVTL. INSIDER 2 at 1 (April 30, 2001).

[2] Id.

[3] Id.

[4] Id.

[5] Ellen M. Peter, Implementing Environmental Justice: The New Agenda for California State Agencies, 31 GOLDEN GATE U.L. REV. 529, 531 (Spring 2001) cited in R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144, 1150 (E.D.Va. 1991), aff'd 977 F.2d 573 (4th Cir. 1992).

[6] Alice M. Shanahan, Permitting Justice: EPA's Revised Guidance for Investigating Title VI Administrative Complaints, Envtl. Lawyer 403 (Feb. 2001) cited in Craig A. Arnold, Land Use Regulation and Environmental Justice, 30 ENVTL. L. REP. 10, 395-96.

[7] Julie B. Latham Worsham, Disparate Impact Lawsuits Under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. ENVTL. AFF. L. REV. 631, 644 (2000).

[8] 42 U.S.C. § 2000(d) (1994).

[9] Alice M. Shanahan, Permitting Justice: EPA's Revised Guidance for Investigating Title VI Administrative Complaints, ENVTL. LAWYER 403, 406 (Feb. 2001) (citing Civil Rights Act of 1964, § 602, 78 Stat. at 252-253).

[10] Hereinafter EPA.

[11] Alice M. Shanahan, Permitting Justice: EPA's Revised Guidance for Investigating Title VI Administrative Complaints, ENVTL. LAW. 403, 406 (Feb. 2001)(citing 40 C.F.R. § 7.35(b) (2000).

[12] Worsham, supra note 7.

[13] Bradford C. Mank, Using § 1983 to Enforce Title VI's Section 602 Regulations, 49 U. KAN. L. REV. 321, 361 (Feb. 2001).

[14] Id.

[15] 42 U.S.C. § 1983 (2002).

[16] See 42 U.S.C. § 1983 (2002).

[17] 145 F. Supp.2d 446, 474 (2001). [Hereinafter SCCIA I].

[18] See supra note 1.

[19] See SCCIA I 145 F. Supp.2d 446, 474 (2001).

[20] 532 U.S. 275 (2001).

[21] Id.

[22] Id.

[23] See supra note 1 at 2.

[24] See Sandoval532 U.S. at 285.

[25] See Shanahan supra note 6 at 12.

[26] Id.