* Law Clerk to The Honorable Herbert Y.C. Choy, Senior United States Circuit Judge, United States Court of Appeals for the Ninth Circuit, 2000–01; J.D., William S. Richardson School of Law, 2000; B.A., Macalester College, 1991. Many thanks to Professor Denise Antolini, Jerome Balter of the Public Interest Law Center of Philadelphia, Jean Campbell, Professor Sheila Foster, Seth Galanter at the United States Department of Justice, and Professor Casey Jarman for their interest and assistance. All errors or omissions are my responsibility.
1 Morning Edition (National Public Radio radio broadcast, Sept. 2, 1998) (interview by John Nielson with Zulene Mayfield, Chairperson of Chester Residents Concerned for Quality Living (CRCQL)) (speaking about the presence of numerous waste management plants in her hometown of Chester), available in 1998 WL 3308573.
2 See Michael Fisher, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 Envtl. L. 285, 286 (1995).
3 See id. at 301–09; Luke Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 Fordham Urb. L.J. 523, 525–30 (1994).
4 See Cole, supra note 3, at 530–38; Fisher, supra note 2, at 311–15.
5 See Fisher, supra note 2, at 309–10.
6 See id. at 303–06; Cole, supra note 3, at 538–41.
7 See Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 834–39 (1993); see generally Cole, supra note 3 (placing Title VI type claims third on a four-tier hierarchy of litigation strategies for environmental justice attorneys); Fisher, supra note 2 (arguing that Title VI is an effective tool for achieving environmental justice); Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1 (1996) (stating that Title VI litigation is limited by the political nature of environmental racism).
8 United States Environmental Protection Agency Administrator Carol M. Browner, Remarks at the Environmental Justice Roundtable (July 17, 1998) (transcript available at <http://www.epa.gov/swerosps/ej/html-doc/ejremark.htm>).
9 See Cole, supra note 3, at 523.
10 See Meredith J. Bowers, The Executive’s Response to Environmental Injustice: Executive Order 12,898, 1 Envtl. L. 645, 645–46 (1995).
11 See Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673, 674–75 (S.D. Tex. 1979), aff’d mem., 782 F.2d 1038 (5th Cir. 1986); Cole, supra note 3, at 523.
12 See Bean, 482 F. Supp. at 674–75; see also 42 U.S.C. § 1983 (1994).
13 Bean, 482 F. Supp. at 681.
14 See id. at 675, 680–81.
15 See Fisher, supra note 2, at 296. The NAACP brought a federal Equal Protection suit in an effort to stop the citing of a polychlorinate biphenyl (PCB) disposal facility in Warren County, North Carolina. See id. “PCBs are members of the family of halogenated aromatic hydrocarbons. This family also contains DDT and TCDD (Dioxin), some of the most toxic substances known to life . . . .” Bowers, supra note 10, at 646 n.5 (quoting Ken Geiser and Gerry Waneck, PCBs and Warren County, in Unequal Protection: Environmental Justice And Communities of Color, 43, 44 (Robert Bullard ed., 1994)).
16 See Bowers, supra note 10, at 646.
17 See id. The GAO report was directly requested by Walter Fauntroy, the District of Columbia’s delegate to the U.S. House of Representatives, who was arrested as a participant at the Warren County protests. See Fisher, supra note 2, at 296.
18 See Lazarus, supra note 7, at 801.
19 See id. The GAO study focused on locations of “offsite” hazardous waste landfills (those that are not part of an industrial facility) in the southeastern United States. See id. The final study reported that, “[b]lacks make up the majority of the population in three of the four communities where the landfills are located.” Id. (quoting U.S. Gen. Accounting Office, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities (1983) [hereinafter GAO Study]). Additionally, “[a]t least 26 percent of the population in all four communities have income below the poverty level and most of this population is Black.” Id. (quoting GAO Study, supra).
20 See id. at 801–02 (citing United Church of Christ Commission for Racial Justice, Toxic Waste and Race in the United States (1987) [hereinafter UC Study]). Dr. Benjamin Chavis, head of the United Church of Christ’s Commission on Racial Justice, was also arrested in the Warren County protests. See Fisher, supra note 2, at 297.
21 Lazarus, supra note 7, at 801–02 (quoting UC Study, supra note 20).
22 Fisher, supra note 2, at 297 (quoting UC Study, supra note 20).
23 See Lazarus, supra note 7, at 802–03.
24 See id. at 803–04.
25 Id. at 805 (quoting 1 Environmental Equity Workgroup, Office of Policy, Planning, and Evaluation, U.S. EPA, Environmental Equity: Reducing Risk for All Communities, Workgroup Report to the Administrator (June 1992) [hereinafter EPA Equity Report]).
26 Id. (quoting D.R. Wernette & L.A. Nieves, Breathing Polluted Air: Minorities Are Disproportionately Exposed, 18 EPA J. 16, 17 (1992)).
27 See Fisher, supra note 2, at 289.
28 Id. (quoting Environmental Racism: Hearings Before the House Subcomm. on Civil and Constitutional Rights, 103d Cong., 1st Sess. (Mar. 3, 1993) (testimony of Dr. Benjamin F. Chavis, Jr.)).
29 See id. at 290. Dr. Robert Bullard is married to Linda McKeever Bullard, the attorney who represented the Northwood Manor community in Bean v. Southwestern Waste Management, 482 F. Supp. 673 (S.D. Tex. 1979). See supra text accompanying notes 9–14; Cole, supra note 3, at 539.
30 Fisher, supra note 2, at 289–90 (quoting Robert D. Bullard, Environmental Equity: Examining the Evidence of Environmental Racism, Land Use F., Winter 1993, at 6) (citations omitted)).
31 See generally Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 Yale L.J. 1383 (1994) [hereinafter Been, Market Dynamics]; Vicki Been, What’s Fairness Got To Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 Cornell L. Rev. 1001 (1993) [hereinafter Been, Fairness]; Daniel Kevin, “Environmental Racism” and Locally Undesirable Land Uses: A Critique of Environmental Justice Theories and Remedies, 8 Vill. Envtl. L.J. 121 (1997) (examining some of the assumptions supporting the environmental justice movement by considering the allegation of impact on minority communities).
32 See Kevin, supra note 31, at 133–34 (citing Douglas A. Anderton, et al., Hazardous Waste Facilities: “Environmental Equity” Issues in Metropolitan Areas, 18 Evaluation Rev. 123, 129 (1994)). The Anderton study looked at hazardous waste treatment, storage, and disposal facilities in the United States that opened before 1990 and were still operating in 1992. See id. The study indicated that there were no statistically significant differences in percentages of African Americans and Latinos in census tracts with such LULUs and in those without. See id. at 134. While the Anderton study found a correlation between socio-economic factors (such as lower employment rate for men, industrial employment, and lower property values) and siting, it concluded that there was no correlation between the presence of minorities and the presence of these facilities. See id.; see also Major Willie A. Gunn, From the Landfill to the Other Side of the Tracks: Developing Empowerment Strategies to Alleviate Environmental Injustice, Ohio N.U. L. Rev. 1227, 1239–40 (1996) (citing Tracy Yandle, Study Presented at the Air and Waste Management Association Annual Meeting (Summer 1993) (unpublished manuscript, on file with Major Gunn)). The Yandle study found that poorer communities in metropolitan areas of Texas were more likely to contain hazardous landfills than were more affluent areas. See id. However, it also found that landfills were statistically more likely to be in majority communities, rather than in minority communities. See id. This result may have been significantly impacted by the fact that the Yandle study classified “Hispanics” as members of the majority community, and that Texas has a Latino population of approximately twenty-five percent. See id.
33 See Kevin, supra note 31, at 134–37. Mr. Kevin, an environmental analyst at the Ernest Orlando Lawrence Berkley National Laboratory, makes his own challenges to the UC and GAO studies, among others, but also cites criticism of the UC study made by some environmental justice advocates. See id. at 135 n.72 (citing Michael B. Gerrard, Fear and Loathing in the Siting of Hazardous and Radioactive Waste Facilities: A Comprehensive Approach to a Misperceived Crisis, 68 Tul. L. Rev. 1047, 1130 (1994); Lazarus, supra note 7, at 857 n.56)). Mr. Kevin’s key criticisms of the UC study include the use of zip codes in defining the geographically affected area, the use of current demographics rather than demographics reflecting the population at the time facilities were sited, and UC’s equation of proximity to a toxic facility with exposure to toxic releases. See id. at 135–36.
34 See Kevin, supra note 31, at 137–45. Mr. Kevin states that considerations such as physical geography (geological stability, soil permeability, and absence of groundwater), expense in relation to other areas, proximity to similar facilities, proximity to transportation routes, and level of local opposition drive siting decisions. See id. at 138. He argues that “absent more concrete evidence of racial animus, disparate impacts or unequal results should be considered disproportionate only when other, non-racial factors do not explain siting.” Id. at 138–39.
35 See, e.g., Fisher, supra note 2, at 291–96 (citing as hypotheses lack of political power in minority communities, market forces, and the tendency of minorities to seek jobs—and therefore homes—in communities with high levels of industrial use); Sheila Foster, Justice From the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 Cal. L. Rev. 775, 787–811 (1998) [hereinafter Foster, Justice] (explaining that market dynamics, such as the attraction of minorities to areas of heavy industrial use and racial discrimination in sale and rental of housing, questions surrounding causation, and the role of siting processes have been theorized as explanations); Lazarus, supra note 7, at 806–24 (discussing the absence of minority political and economic power, the role of environmental policy making where environmental protections are disproportionately enjoyed by whites, the effects of deliberate exclusion and racial stereotyping, the possibility of minority disinterest in the environment, and the limited political and legal resources in minority communities); Light & Rand, supra note 7, at 8–14 (theorizing that patterns of economic development and the localization of health and environmental risks, the relative poverty and political powerlessness of minority communities, agency siting and zoning policies and administrative review processes, and the location of labor and capital resources may contribute to disproportionate racial burdens).
36 See Cole, supra note 3, at 524. Mr. Cole notes that personal injury suits that assert injuries caused by toxic poisoning have been brought on behalf of plaintiffs against operative facilities. See id. at 524 n.5. Because these suits often last for years and many plaintiffs do not receive any compensation for their injuries, after-the-fact toxic tort suits have “disempowered and disillusioned many low-income communities and communities of color.” Id.
37 See id. at 525–30; Fisher, supra note 2, at 301–09.
38 See Fisher, supra note 2, at 309–10.
39 See Cole, supra note 3, at 538–41; Fisher, supra note 2, at 303–06.
40 See Cole, supra note 3, at 530–38; Fisher, supra note 2, at 311–15.
41 See Cole, supra note 3, at 526.
42 See id.
43 See id. at 527.
44 See Fisher, supra note 2, at 308.
45 See id.
46 See id. at 307.
47 See id.
48 See id.
49 See Fisher, supra note 2, at 308–09.
50 See id. at 309–10 .
51 See id. at 309.
52 See Interview with Denise Antolini, Assistant Professor, William S. Richardson Law School, University of Hawai`i, in Honolulu, Haw. (Apr. 19, 1999). Antolini added, “[c]ommunity groups may also face barriers to bringing public nuisance claims because of the courts’ strict application of the traditional ‘special injury’ rule, which requires that a private plaintiff in a public nuisance lawsuit have an injury that is ‘special’ (i.e., distinct) from the rest of the affected community.” Id.
53 See Fisher, supra note 2, at 309. Similarly, when a personal injury claim is brought, injunctive or other equitable relief, which is usually desired in environmental justice suits, may not be available as the traditional remedy under common law tort claims is damages. See id. at 310.
54 See id.
55 See id. at 303. See generally Alice Kaswan, Environmental Laws: Grist for the Equal Protection Mill, 70 U. Colo. L. Rev. 387 (1999) (arguing that in some cases environmental laws can reveal discrimination necessary to prove a violation under the Equal Protection Clause).
56 Cole, supra note 3, at 538.
57 See Kaswan, supra note 55, at 432 (citing Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523 (11th Cir. 1986); R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff’d mem., 977 F.2d 573 (4th Cir. 1992); East Bibb Twiggs Neighborhood Ass’n v. Macon-Bibb County Planning & Zoning Comm’n, 706 F. Supp. 880 (M.D. Ga. 1989), aff’d, 896 F.2d 1264 (11th Cir. 1989); Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673 (S.D. Tex. 1979), aff’d mem., 782 F.2d 1038 (5th Cir. 1986)).
58 See Fisher, supra note 2, at 304–05.
59 See Cole, supra note 3, at 539; Fisher, supra note 2, at 303–04. The controlling law in equal protection cases where the statute in question does not specifically address race (facial neutrality) is articulated in Village of Arlington Heights v. Metropolitan Housing Developmental Corp., 429 U.S. 252 (1977) and Washington v. Davis, 426 U.S. 229 (1976). Under Arlington Heights and Davis, a showing of a discriminatory effect or impact alone is insufficient to prevail; a plaintiff must prove that the defendant acted with an intent to discriminate. See Arlington Heights, 429 U.S. at 264–66; Davis, 426 U.S. at 238–39; see also Cole, supra note 3, at 539; Fisher, supra note 2, at 303–04.
60 See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (elaborating on the intent requirement of Arlington and Heights Davis, the Court stated, “‘[d]iscriminatory purpose’. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effect on an identifiable group.”(citation omitted)).
61 See Arlington Heights, 429 U.S. at 266–68. The Court suggested that intentional discrimination could be proven circumstantially using the “historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes.” Id. at 267. Also, any departures from the normal procedural “sequence of events leading up to the challenged decision . . . may shed some light on the decisionmaker’s purposes” and “might afford evidence that improper purposes are playing a role.” Id. Substantive departures may also indicate a discriminatory intent, such as where “factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Id. Lastly, the Court indicated that the administrative history regarding the decision “may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 268. However, even if the plaintiff is able to locate a circumstantial “smoking gun,” the burden is still on the plaintiff to prove that the defendant acted because the action would cause an adverse effect on the minority group in question, not in spite of that effect. See Feeney, 442 U.S. at 279.
62 See Fisher, supra note 2, at 304.
63 Cole, supra note 3, at 541. But see Kaswan, supra note 55, at 407–56 (asserting that outcomes for equal protection claims are highly fact specific and that the Arlington Heights standard leaves open the possibility of circumstantially proving the presence of discriminatory intent).
64 See Cole, supra note 3, at 530–31.
65 See infra note 66 (discussing Title VIII of the Civil Rights Act of 1968).
66 42 U.S.C. § 2000d (1964). See Lazarus, supra note 7, at 834–39; see generally Cole, supra note 3 (placing Title VI type claims third on a four tier hierarchy of litigation strategies for environmental justice attorneys); Fisher, supra note 2 (arguing that Title VI is an effective tool for achieving environmental justice); Light & Rand, supra note 7 (stating that Title VI litigation is limited by the political nature of environmental racism); Bradford C. Mank, Is There a Private Cause of Action Under EPA’s Title VI Regulations?: The Need to Empower Environmental Justice Plaintiffs, 24 Colum. J. Envtl. L. 1 (1999) [hereinafter Mank, Private Cause of Action] (arguing that courts should recognize a private right of action based on the EPA implementing regulations promulgated under Section 602 of Title VI); James H. Colopy, Note, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 Stan. Envtl. L.J. 125 (1994) (exploring the use of Title VI as a private cause of action and the nondiscrimination implementing regulations of EPA in an environmental justice context).
In addition to Title VI, environmental justice advocates have also explored the utility of bringing siting challenges under Title VIII of the Civil Rights Act of 1968. 42 U.S.C. §§ 3601–3619, 3631 (1988). See generally Alice L. Brown & Kevin Lyskowski, Environmental Justice and Title VIII of the Civil Rights Act of 1968 (The Fair Housing Act), 14 Va. Envtl. L.J. 741 (1995) (exploring the usefulness of Title VIII for environmental justice plaintiffs). Title VIII prohibits discrimination “against any person in the . . . sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status or national origin.” 42 U.S.C. § 3604(b) (1988). See Cole, supra note 3, at 534; Lazarus, supra note 7, at 839. Title VIII has an advantage over equal protection claims in that the statute does not require a showing of intentional racial discrimination; therefore, an unjustified discriminatory impact may constitute a violation. See Brown & Lyskowski, supra, at 744; Cole, supra note 3, at 534–35; Lazarus, supra note 7, at 840. Also, unlike constitutional challenges, the prohibitions of Title VIII reach not just governmental, but purely private conduct as well. See Brown & Lyskowski, supra, at 744; Cole, supra note 3, at 534–35; Lazarus, supra note 7, at 839–40. Thus plaintiffs could challenge not only state permitting decisions, but also local government zoning decisions and actions by facility owners themselves. See Brown & Lyskowski, supra, at 744; Cole, supra note 3, at 535; Lazarus, supra note 7, at 840.
However, “the ultimate [and perhaps limited] usefulness of Title VIII[‘s] nondiscrimination mandate in redressing environmental inequity largely turns . . . on the meaning of ‘provision of services and facilities . . . .’” Lazarus, supra note 7, at 840. Courts have interpreted this language narrowly, limiting the provision of services and facilities contemplated under the statute to those with a connection to the “sale and rental of a dwelling.” See Laramore v. Illinois Sports Facilities Auth., 722 F. Supp. 443, 452 (N.D. Ill. 1989) (refusing to apply Title VIII to the siting of a stadium that would affect a black community through forced relocation because the permitting of the facility was not in connection with a sale or rental of a dwelling); see also Brown & Lyskowski, supra, at 751–55; Cole, supra note 3, at 536; Lazarus, supra note 7, at 840 n.242. As a result, although groups such as the United States Civil Rights Commission have argued that services such as sewage treatment are directly tied to “development and maintenance of urban areas,” courts have rejected these arguments. See Lazarus, supra note 7, at 841 (quoting 6 U.S. Commission of Civil Rights, The Federal Civil Rights Enforcement Effort, 1974, at 598–99 (1975)). Commentators suggest that Title VIII may be most effective when combined with other legal strategies such as other civil rights statutes, environmental laws and regulations, and land use and zoning laws and ordinances. See Brown & Lyskowski, supra, at 755–56.
67 See Lazarus, supra note 7, at 834. At the time of Mr. Lazarus’s article, published in 1993, he wrote, “[o]ne option not yet well explored by civil rights plaintiffs in the environmental context is Title VI of the Civil Rights Act of 1964.” Id. A year later, Mr. Cole noted, “[s]trategies for employing Title VI in environmental justice and other cases have been well discussed in legal literature, and the approach has been used in a series of cases.” Cole, supra note 3, at 532.
68 Cole, supra note 3, at 534.
69 Lazarus, supra note 7, at 835.
70 Pub. L. No. 100–259, 102 Stat. 28 (1988).
71 42 U.S.C. § 2000d (1999).
72 See Keith N. Cole & Carita T. Shanklin, Environmental Permits as Civil Rights Violations: Three Recent Developments in a Rapidly Emerging Area of Law, Metro. Corp. Couns. 9, July, 1998, at Col. 1.
73 According to the United States Department of Justice, in 1996 EPA provided about $4.3 billion in federal financial assistance under 44 EPA programs to approximately 1,500 recipients. See U.S. Amicus Curiae Brief at 5, Chester Residents Concerned for Quality of Living v. Seif, 132 F.3d 925 (3d Cir. 1997) (No. 97–1125) (citing U.S. Comm’n on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs 415 (1996)).
74 See Fisher, supra note 2, at 312; Mank, Private Cause of Action, supra note 66, at 16; David Sive & Lemuel M. Srolovic, Environmental Justice Issues Develop Facility Permits and Civil Rights, N.Y. L.J., Oct. 26, 1998, at Col. 1.
75 See Cole & Shanklin, supra note 72; Light & Rand, supra note 7, at 24.
76 See supra text accompanying notes 55–63.
77 See id. See, e.g., Chester Residents Concerned for Quality Living v. Seif, 944 F. Supp. 413 (E.D. Pa. 1996).
78 42 U.S.C. § 2000d-1(1999). See Cole & Shanklin, supra note 72.
79 Section 602 of Title VI provides in relevant part:
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract . . . is authorized and directed to effectuate the provisions of section 2000d [Section 601] of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken . . . . Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record . . . of a failure to comply with such requirement . . . .
42 U.S.C. § 2000d-1. Section 602 additionally specifies procedural safeguards regarding the termination of funding. See id. See Cole & Shanklin, supra note 72, at Col. 1; Mank, Private Cause of Action, supra note 66, at 12.
80 See U.S. Amicus Curiae Brief at 5, Chester (No. 97–1125). The original EPA regulations specified that a fund recipient could not, “directly or indirectly, utilize certain criteria or methods of administration which have or may have the effect of subjecting a person to discrimination because of race, color, or national origin.” 38 Fed. Reg. 17,969 (1973). According to the U.S. Amicus Brief, the 1984 amendments to EPA’s discriminatory effect regulations were not intended to “‘change the content of earlier EPA regulations,’ but rather to express the nondiscrimination provisions ‘in simple language that preserves their original intent.’” See U.S. Amicus Curiae Brief at 5–6, Chester (No. 97–1125) (citing Non-Discrimination on the Basis of Race, Color, National Origin, Age, Handicap and Sex in Federally Assisted Programs, 46 Fed. Reg. 2306 (1981)).
81 Protection of Environment, 40 C.F.R. § 7.35(b) (1984) (emphasis added).
82 See generally Cole & Shanklin, supra note 72, at Col. 1; Sive & Srolovic, supra note 74, at Col. 1. This reading of the standard imposed by EPA implementing regulations is confirmed in the agency’s Interim Guidance document, which is discussed in detail in section II.B.1 of this paper. Additionally, after Congress enacted Title VI, Section 602 in 1964, the government has interpreted that section as contemplating a discriminatory effect standard. See Mank, Private Cause of Action, supra note 66, at 13–14 (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 618 (1983) (Marshall, J.) (recipients may not use “‘criteria or methods of administration which have the effect of subjecting individuals to discrimination.’” (quoting 45 C.F.R. § 80.3(b)(2) (1964)).
83 See Lazarus, supra note 7, at 834–35; Light & Rand, supra note 7, at 25.
84 See Colopy, supra note 66, at 180–88 (detailing the history of EPA non-enforcement); Lazarus, supra note 7, at 836–38 (outlining EPA’s policy of avoiding civil rights issues); Mank, Private Cause of Action, supra note 66, at 17–18 (explaining EPA’s early failure regarding the enforcement of Title VI).
85 See Colopy, supra note 66, at 181–82; Fisher, supra note 2, at 313–14; Lazarus, supra note 7, at 836–38; Mank, Private Cause of Action, supra note 66, at 17–18.
86 See Colopy, supra note 66, at 181–82; Fisher, supra note 2, at 313–14; Lazarus, supra note 7, at 836–38; Mank, Private Cause of Action, supra note 66, at 17–18.
87 See Mank, Private Cause of Action, supra note 66, at 18.
88 See Exec. Order No. 12,898, 3 C.F.R. 859 (1995), reprinted in, 42 U.S.C § 4321 (1994); see also Bowers, supra note 10, at 649; Sive & Srolovic, supra note 74, at Col. 1.
89 See Bowers, supra note 10, at 649–50; Sive & Srolovic, supra note 74, at Col. 1.
90 See Bowers, supra note 10, at 650. Administrator Browner and Attorney General Reno issued a press conference on the day that President Clinton signed Executive Order 12,898, stating the importance of community involvement in siting decisions. See id. (citing The White House Office of Communication, Briefing by EPA Administrator Browner and Attorney General Reno on Environmental Justice 3 (Feb. 11, 1994)).
91 See Sive & Srolovic, supra note 74, at Col. 1.
92 See Exec. Order 12,898, supra note 88, § 6–609. The order reads:
This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, its agencies, or any other person with this order.
Id.; see also Sive & Srolovic, supra note 74, at Col. 1.
93 See Mank, Private Cause of Action, supra note 66, at 18.
94 See id.; David Mastio, EPA Keeps Key Documents Secret: They Contradict New Agency Policy on Environmental Justice, Detroit News, July 17, 1998, at A1 [hereinafter Mastio, Secret].
95 See Mank, Private Cause of Action, supra note 66, at 18 (citing Prepared Testimony of Ann Goode, Director of Civil Rights, U.S. EPA, Before the Oversight and Investigations Subcommittee of the House of Representatives Commerce Committee, Federal News Service, Aug. 6, 1998, 1998 WL 12763096).
96 See id. at 18–19; David Mastio, Murky Rules Stall EPA Race Policy: After 5 Years, $50 Million, Agency Hasn’t Solved One Claim of Civil Rights Violations, Detroit News, Oct. 20, 1998, at A1 [hereinafter Mastio, Murky].
97 See Mank, Private Cause of Action, supra note 66, at 18; Mastio, Murky, supra note 96, at A1).
98 EPA, Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Feb. 5 1998) [hereinafter Interim Guidance].
99 See Mank, Private Cause of Action, supra note 66, at 19 (citing New EPA Advisory Committee to Address Rights Concern of State, Local Permitting, 28 Env’t Rep. (BNA) 2441 (Mar. 20, 1998)).
100 Interim Guidance, supra note 98, at 2.
101 See id. at 4–6
102 Id. at 7.
103 Id. at 8–9.
104 See id. at 9.
105 Interim Guidance, supra note 98, at 9.
106 Id. at 9–10.
107 Cole & Shanklin, supra note 72, at Col. 1.
108 See Interim Guidance, supra note 98, at 10.
109 Id. at 11.
110 See id.
111 See id. at 11–12. Specifically as to mitigation, the Interim Guidance states that “[w]hen it is not possible or practicable to mitigate sufficiently the public health or environmental impacts of a challenged permit, EPA will consider ‘supplemental mitigation projects’ (SMPs), which, when taken together with other mitigation efforts, may be viewed by EPA as sufficient to address the disparate impact.” Id. at 11. This approach appears to provide some flexibility to mitigation as an SMP can address complainant concerns about permitting that “cannot otherwise be redressed under Title VI (i.e., because they are outside those consideration ordinarily entertained by the permitting authority).” Id. at 12. Mitigation could thus involve stricter permit controls or activities and projects with no direct tie to the environmental impacts of the facility. See Cole & Shanklin, supra note 72, at Col. 1. The EPA views mitigation as an “important focus” in this process, because mitigation efforts, as a less drastic alternative to the existing permitting process, may allow the fund recipient to avoid the “draconian outcomes” of total loss of EPA financial assistance. See Interim Guidance, supra note 98, at 11.
112 See id. at 12; see also Cole & Shanklin, supra note 72, at Col. 1.
113 See Interim Guidance, supra note 98, at 12.
114 See id.
115 See Cole & Shanklin, supra note 72, at Col. 1.
116 See Rachel L. Schowalter, The U.S. Environmental Protection Agency: Fiscal Year 1998 in Review, 28 Envtl. L. Rep. 10,721, 10,727 (1998).
117 See Protection of Environment, 40 C.F.R. § 7.130(b)(1)–(3) (1999); see also Mank, Private Cause of Action, supra note 66, at 21.
118 See 40 C.F.R. § 7.130(b)(3)(i); see also Mank, Private Cause of Action, supra note 66, at 21.
119 See 40 C.F.R. § 7.130(b)(3)(iii); see also Mank, Private Cause of Action, supra note 66, at 21.
120 See 42 U.S.C. § 2000d-2 (1999); see also Mank, Private Cause of Action, supra note 66, at 21.
121 See 40 C.F.R. § 7.120(g); Mank, Private Cause of Action, supra note 66, at 22.
122 5 U.S.C. §§ 701–706 (1988). See Colopy, supra note 66, at 169–70; Fisher, supra note 2, at 317 n.158; Mank, Private Cause of Action, supra note 66, at 22. The APA allows individuals to sue a federal agency for failure to enforce its regulations, but only in the event that there is no other adequate remedy and when the agency’s determination is not already committed to agency discretion. See Colopy, supra note 66, at 169. Because the complainant has an adequate remedy, opportunity to bring suit against the fund recipient under Title VI, Section 601 and arguably Section 602, courts generally do not allow a private cause of action under the APA against the federal funding agency to review its enforcement of Title VI. See id. at 170. Additionally, the Supreme Court has further curtailed a frustrated complainant’s opportunity to bring suit by holding that an agency’s determination to take no action towards enforcement, “should be presumed immune from judicial review under § 701(a)(2).” Heckler v. Chaney, 470 U.S. 821, 832 (1985); see also Colopy, supra note 66, at 169–70.
The APA, however, may still be useful to complainants. Although litigants under the APA cannot challenge EPA’s decision regarding a funding recipient’s compliance with Title VI, one commentator has indicated that plaintiffs could challenge any refusal to take action by EPA if that agency actually determined that the funding recipient was in violation of regulations. See id. at 170.
123 Interim Guidance, supra note 98, at 12.
124 See supra text accompanying note 92.
125 See Cole & Shanklin, supra note 72, at Col. 1.
126 See The Corporate Backlash Against Environmental Justice (visited Feb. 26, 1999) <http://www.corpwatch.org/trac/gallery/ej/>. Corporate Watch identifies itself as an “online magazine and resource center designed to provide . . . an array of tools that you can use to investigate and analyze corporate activity.” Id.
127 These business and government challengers included: the Environmental Commissioners of the States, the National Association of Attorneys General, the Western Governor’s Association, the Environmental Council of the States, the National Association of Black County Officials, the U.S. Chamber of Commerce, the National Association of Counties, and the U.S. Conference of Mayors. See Cole & Shanklin, supra note 72, at Col. 1; Jeffrey B. Gracer, Taking Environmental Justice Claims Seriously, 28 Envtl. L. Rep. 10,373, 10,374 (1998); David Mastio, Another Setback for EPA Policy, The Detroit News, July 2, 1998 <http://www.detnews.com/998/biz/9807/02/07020019.htm> [hereinafter Mastio, Setback].
128 See Mastio, Setback, supra note 127. Government and business leaders indicated specific concerns for conflict with economic empowerment zones, brownfields initiatives, and other attempts to revitalize business in minority and disadvantaged communities. See Sive & Srolovic, supra note 74, at Col. 1. The pro-business Washington Legal Foundation has even challenged the very authority of EPA to promulgate such regulations in regard to findings of disparate impact in an amicus curiae brief filed in the Chester case. See Joan McKinney, Pa. Case Similar to Shintech Saga, Baton Rouge Advocate, June 28, 1998, at 17B. The Washington Legal Foundation’s argument fundamentally asserts:
In the section of the Civil Rights Act that deals with federal funding cutoffs, Congress reserved this punitive action for deliberate and intentional acts of discrimination; but EPA’s environmental justice regulations will allow a funding cutoff if there is a discriminatory effect, even if discrimination was not done on purpose.
Id.
129 See Gracer, supra note 127, at 10,375. In the words of one commentator, “[e]ven after the traditional permitting process has been successfully completed, another unit of the EPA could demand additional changes or withdrawal of the permit based on environmental justice concerns.” Id.
130 See id.
131 See id. The Interim Guidance allows both permit modifications and renewals to trigger disparate impact claims; therefore, facilities that have been operating in communities for years could suddenly be confronted with environmental justice charges. See id; see also Interim Guidance, supra note 98, at 7. This appears to be true even where the facility pre-dated additional pollution sources, or even the presence of a predominantly minority community.
132 See Gracer, supra note 127, at 10,375. Although the Interim Guidance provides a five-step analysis to determine whether a disparate impact exists, the guidance does not detail issues that are “at the heart of the disparate impact analysis,” such as the “proper unit of measure for disparate impact analysis and statistical significance.” Id; see supra text accompanying notes 98, 116, 123–25. In particular, the guidance does not clarify exactly how EPA will define “affected and unaffected populations,” nor does it specify what statistical methodology is to be used. See Gracer, supra note 127, at 10,375. Because of this lack of detail in the disparate effect analysis and a lack of regulatory precedent in this area, discriminatory impact siting challenges will necessarily be decided on a case-by-case basis “against a backdrop of uncertainty.” Id.
133 See Gracer, supra note 127, at 10,375. Jeffrey B. Gracer, a practicing environmental attorney, has interpreted the guidance as improperly placing the “ultimate burden of proof” upon the permitting agency. See id. According to Mr. Gracer, this view contrasts the Title VI regulations under the Interim Guidance to other civil rights legislation such as Title VII or Title IX. See id. Under these latter statutes, after the complainant makes a prima facie case of discrimination, the burden shifts to the defendant either to rebut the prima facie case of disparate impact or to demonstrate justification by legitimate considerations. See id. (citing Larry P. v. Riles, 793 F.2d 969, 982 & n.9 (9th Cir. 1984)). The ultimate burden, however, then shifts back to the complainant to prove that the defendant’s business necessity could be met through less discriminatory means. See id. (citing Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993)). In contrast, under the Interim Guidance, Mr. Gracer observes that “the state agency not only must establish that the permit is necessary to advance a ‘substantial, legitimate interest,’ but must also prove that there is no less discriminatory alternative.” Id. (quoting Interim Guidance, supra note 98, at 5). See supra text accompanying notes 112–15. Additionally, Mr. Gracer contends that EPA regulation does not require suggested mitigation offers or less restrictive alternatives to honor a permitting authority’s bona fide business necessities. See Gracer, supra note 127, at 10,375. These considerations are especially significant because victory in disparate effect cases frequently hinges upon which party carries the ultimate burden of proof. See id.
134 See Gracer, supra note 127, at 10,375. Some critics have attacked the Interim Guidance because EPA characterizes alternatives and mitigation as an “important focus” in the process of approaching disparate effect claims, but the guidelines do not indicate how mitigation should be applied specifically to environmental justice concerns. See id.; supra note 111 and accompanying text; see also Interim Guidance, supra note 98, at 11. Because of the newness and originality of the guidelines, mitigation in an environmental justice sense is not well explored, and it is not known what measures might be appropriate in that regard. See Gracer, supra note 127, at 10,375. For example, could job training for minority community residents or benefit payments to the affected community be offered to offset environmental discriminatory effects? See id.
135 See supra notes 126–34 and accompanying text; see, e.g., National Governor’s Association, Federal Interpretations of Environmental Justice Claims Threaten State Programs (visited Feb. 26, 1999) <http://www.nga.org/pubs/issueBriefs/1997/971028EnviroJustice.asp>.
136 Professor Sheila Foster suggests that minority community organizations interested in environmental justice may not currently have a solid view on the subject because a final guidance on the subject is still anticipated from EPA. Telephone interview with Sheila Foster, Associate Professor of Law, Rutgers School of Law (Feb. 26, 1999) [hereinafter Foster, Interview].
137 See generally Foster, Justice, supra note 35.
138 See Foster, Interview, supra note 136.
139 See supra notes 128–34 and accompanying text.
140 Foster, Interview, supra note 136. Professor Foster asserts that the standard constructed by EPA appears to be very difficult for complainants to meet as applied. See id.
141 See id. This section of the guidance requires that the investigation identify “which other permitted facilities, if any, are to be included in the analysis and to determine the racial or ethnic composition of the populations affected by those permits.” Interim Guidance, supra note 98, at 10.
142 Foster, Interview, supra note 136. See infra text accompanying notes 203–07.
143 Foster, Interview, supra note 136. A thorough inquiry should consider the environmental health of the entire community, for example, the presence of toxins in residents’ homes (e.g., lead levels), or perhaps the relative health of the community, not just the presence of other industrial or waste facilities in the vicinity of the facility to be permitted. Id.
144 Id. See Interim Guidance, supra note 98, at 12; supra text accompanying notes 107–08.
145 See Foster, Interview, supra note 136.
146 Id.
147 Interim Guidance, supra note 98, at 12 (emphasis added).
148 See Foster, Interview, supra note 136; see infra notes 183–93 and accompanying text.
149 See Mank, Private Cause of Action, supra note 66, at 19. EPA’s Title VI advisory committee has representation from state and local governments, industry, and environmental justice advocates. Sive & Srolovic, supra note 74, at Col. 1.
150 See Sive & Srolovic, supra note 74, at Col. 1; Mary Greczyn, Environmental Racism Debate Grows, Waste News, Dec. 21, 1998; National Advisory Council for Environmental Policy and Technology, Next Steps for EPA, State, and Local Environmental Justice Programs (Mar. 1, 1999) (available at <http://www.epa.gov/ ocempage/nacept/titleVI/titlerpt.html>).
151 U.S. EPA, The EPA Office of Civil Rights: Policies and Guidances (visited Jan. 10, 2000) <http://www.epa.gov/ocrpage1/polguid.htm>. See also Mank, Private Cause of Action, supra note 66, at 20 (citing Appropriations Act for Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies for Fiscal Year Ending September 30, 1999, Pub. L. No. 105–276 (H.R. 4194), 112 Stat. 2461, 105th Cong. Tit. III (1998)); Cindy Skrzycki, The Regulators: With EPA as Judge-Up Against the Environmental Justice System, Washington Post, Oct. 23, 1998, at F1; Bill Walsh, Law Puts EPA Bias Rules on Hold: Industry Targets Racism Probes, New Orleans Time-Picayune, Oct. 23, 1998, at A8. “During October of 1998, President Clinton signed an appropriations bill that included a rider sponsored by Republican members of Congress that places a moratorium on the EPA accepting new Title VI complaints until the agency issues a final guidance.” Mank, Private Cause of Action, supra note 66, at 20.
Congress enacted this legislation notwithstanding EPA’s assertion that it would continue to accept and evaluate complaints relative to permitting under its legal obligation to do so, despite challenges to its legal authority by environmental justice opponents. See Sive & Srolovic, supra note 74, at Col. 1; see also supra note 128 and accompanying text. Opponents to the Interim Guidance characterized the moratorium as a warning to EPA “to adopt a more flexible approach to efforts to site facilities in minority or low-income communities.” See Mank, Private Cause of Action, supra note 66, at 20. Environmental justice advocates countered by stating that the moratorium would, in fact, have little true effect due to EPA’s lack of resources to investigate new complaints and decision to delay consideration of new complaints until the final guidance for Title VI was completed. See id.
152 See id.; U.S. EPA, Status Summary Table of Title VI Administrative Complaints (Oct. 1, 1999) (available at <http://www.epa.gov/ocrpage1/docs/t6stjan2000.pdf>).
153 See supra text accompanying note 152. But see David Mastio, EPA Ready to Clear Flint Mill, The Detroit News, Oct. 30, 1998 (visited Feb. 26, 1999) <http://www.detnews. com/1998/biz/9810/30/10300141.htm> [hereinafter Mastio, Flint Mill] (indicating that approximately two dozen complaints were currently pending at the time of publication).
154 See generally Cole & Shanklin, supra note 74, at Col. 1 (discussing the background of the Shintech permit and the EPA investigation through July 1998); Leonard Gray, Shintech Leaving St. James, Heading to Plaquemine, L’Observateur (Sept. 21, 1998) <http://www.lobservateur.com/news/stories/98092101n.html> (detailing Shintech’s decision to leave St. James and avoid further permit disputes with EPA); McKinney, supra note 128, at 17B (comparing the Shintech regulatory case to a similar private right of action brought in Pennsylvania); Sive & Srolovic, supra note 74, at Col. 1 (explaining EPA’s process for determining discriminatory effects as applied in the Shintech case).
155 See Mastio, Flint Mill, supra note 153.
156 David Cagnolatti, New EPA Skullduggery on Environmental Justice (visited Feb. 26, 1999) <http://www.junkscience.com/nov98/cagnolat.htm> (reporting that “[t]he Shintech saga has taken a bizarre turn”); McKinney, supra note 128, at 17B (observing that “Pa. Case Similar to Shintech Saga”).
157 See Cole & Shanklin, supra note 72, at Col. 1; see, e.g., Cagnolatti, supra note 156; Gray, supra note 154; Vicki Ferstel, Shintech Becomes Test Case: EPA Trying to Apply New, Vague Order (last updated on Sept. 12, 1997) <http://www.leanweb.org/Shintech_becomes_ test_case.html>; U.S. Chamber: EPA’s Mandated Relocation Costs More Jobs than Expected (visited Feb. 27, 1999) <http://www.uschamber.org/media/releases/October98/100198. htm> [hereinafter U.S. Chamber]. See infra notes 386–90 and accompanying text for an in-depth treatment of the Shintech demographic analysis.
158 See Cole & Shanklin, supra note 72, at Col. 1; Gray, supra note 154.
159 Alan Sayre, “Environmental Racism” Site Could be Abandoned (last updated on Sept. 18, 1998) <http://www.sddt.com/files/librarywire.09/09/8/1v.html>.
160 See Cole & Shanklin, supra note 72, at Col. 1. The citizens’ petition was co-written by the Tulane University Environmental Law Clinic and Greenpeace. See Civil Rights Leaders Jackson and Lowery Urge EPA to Stop Louisiana Plant in Major Rights Case [hereinafter Civil Rights Leaders] (last updated Aug. 26, 1997) <http://lists.essential.org/1997/dioxin-l/msg00313.html>. In filing the petition, the law clinic represented St. James Citizens for Jobs and the Environment, as well as other groups that opposed the plant. See Ferstel, supra note 157. In what became an unusual offshoot to the EPA complaint, Louisiana Governor Murphy “Mike” Foster staged a counterattack against Tulane University, threatening to strip the university of its state tax exemptions. See Foster Battles with Tulane Over Shintech (visited Feb. 27, 1999) <http://www.amrivers.org/mm/foster1097.html> [hereinafter Foster Battles]. The governor, who supported the $700 million Shintech facility, called the law clinic, “a bunch of vigilantes” and characterized Tulane faculty members as, “big, fat professors drawing big salaries trying to run [business] people out of the state.” Id. (alteration in original). Explaining his position, Governor Foster added:
I have problems with a university that has some public [tax] breaks being used to run people out of the state that live up to the laws of the state. Boycotts seem to work with all kinds of groups. Now I’m not boycotting Tulane. I like Tulane. But I am telling some of the alumni to think about their support.
Id. (alteration in original).
Following a discussion between the Governor and state business leaders, in the summer of 1997, the New Orleans Business Council, the New Orleans Chamber of Commerce, and the Louisiana Association of Business and Industry requested an investigation by the Louisiana Supreme Court into the legal activities of the Tulane Law Clinic, and that the clinic be restricted from such activities. See Environmental Law Clinic Raises Environmental Justice . . . And a Hostile Reaction From the Governor and the Louisiana Supreme Court, Tul. Envt’l L. News, Winter 1999, 1, 16–17 [hereinafter Law Clinic]. After a nine-month investigation into the law school clinics at Loyola, Southern, and Tulane law schools, the state Supreme Court amended Louisiana’s student practice rule. See id. The rules now prohibit clinics from representing any community organization that is affiliated with a national organization, any clients not eligible under the federal Legal Services Corporation (LSC) guidelines (which defines a poverty income for one person as $10,063 and for a family of two as $13,000), any community organization with more than 49% of its members outside of the LSC guidelines, or any clients with whom the legal clinic initiated contact and any organization which formed with assistance from the clinic. See id. at 17.
161 See Law Clinic, supra note 160, at 1. The Tulane Environmental Law Clinic specifically alleged that the effects of chronically high concentrations of toxic emissions were already borne disproportionately by the African-American town of Convent in St. James Parish (the airborne toxic emissions in the town already exceeded 16 million pounds annually—an amount 67 times higher than elsewhere in the parish, 93 times higher than the average of the Mississippi River industrial corridor, 129 times higher than the statewide average, and 658 times higher than the United States average), and that these levels would be intensified if Shintech was allowed to add over 3 million pounds of air pollution a year (including 600,000 pounds of toxic air pollution). See id.
The community organizations represented by the Tulane Environmental Law Clinic also petitioned EPA under Title V of the Clean Air Act to review and revoke the proposed air permits issued by the state authorities. See id. at 1, 16. In response to these Clean Air Act requests, EPA revoked the challenged air permits in September of 1997, marking the first time that EPA ever granted a citizen petition under the act. See id. at 16.
162 See Cole & Shanklin, supra note 72, at Col. 1; Civil Rights Leaders, supra note 160. Approximately 95% of the population within a one-mile radius of the proposed facility is African-American. See Cole & Shanklin, supra note 72, at Col. 1.
163 See Law Clinic, supra note 160, at 1; see also supra text accompanying note 161.
164 Foster Battles, supra note 160; see Ferstel, supra note 157.
165 See, e.g., Civil Rights Leaders, supra note 160; Ferstel, supra note 157; Foster Battles, supra note 160; Gray, supra note 154; Sayre, supra note 159; U.S. Chamber, supra note 157.
166 Civil Rights Leaders, supra note 160 (quoting Monique Harden, Greenpeace attorney).
167 Ferstel, supra note 157 (quoting Bob Kuehn, Director of the Tulane Environmental Law Clinic).
168 See Foster Battles, supra note 160; U.S. Chamber, supra note 157.
169 See Civil Rights Leaders, supra note 160.
170 See Sayre, supra note 159.
171 See U.S. Chamber, supra note 157. The Chamber of Commerce estimated that blocking the plant would result in a loss of 195 new jobs in the Convent community and would economically impact related industries such as transportation, communication, and retail. See id.
172 See Sayre, supra note 159.
173 See id; Law Clinic, supra note 161, at 16; U.S. Chamber, supra note 157.
174 Sayre, supra note 159 (quoting Carol Browner, EPA Administrator).
175 Gray, supra note 154 (quoting Dale Hymel Jr., President of St. James Parish).
176 Id. (quoting Erv Schroeder, Shintech Vice President of Manufacturing).
177 See Letter from Ann E. Goode, Director, EPA’s Office of Civil Rights, to Father Phil Schmitter & Sister Joanne Chiaverini, Co-Directors, St. Francis Prayer Center, at 2 (Oct. 30. 1998) (available at <http://www.epa.gov/region5/steelcvr.htm>) [hereinafter Select Steel Letter].
178 See id.
179 See id.
180 See id. at 5.
181 See id. at 2.
182 See Select Steel Letter, supra note 177, at 6.
183 Id. at 2.
184 See id. at 3.
185 See id.
186 See id.
187 See Select Steel Letter, supra note 177, at 3.
188 See id. at 3–4.
189 Id. at 4.
190 See id.
191 Id.
192 See Select Steel Letter, supra note 177, at 4.
193 Id. at 4.
194 See id. at 4–5.
195 Id. at 5.
196 See id. at 6.
197 Select Steel Letter, supra note 177, at 6.
198 See Robert V. Chalfant, Using Title VI to Thwart Mill Construction (last modified Jan. 1999) <http://www.newsteel.com/features/NS9901en.htm>.
199 See id.
200 Id.
201 See id. This “hold up” was ultimately fatal to the Select Steel Company’s plans in Genesee Township. See Henry Payne,’Environmental Justice’ A Dilemma for Cities, Pittsburgh Post-Gazette, May 15, 1999, at A9. In April, 1999, Select Steel, “strangled in red tape” created by the Title VI complaint, relocated the proposed plant to Grand Ledge, a rural community near Lansing, Michigan. Id.
202 See Foster, Interview, supra note 136. Although the St. Francis Prayer Center has not officially commented on EPA’s application of the Interim Guidance, the group appealed the EPA’s Select Steel decision in March, 1999. See David Mastio, EPA Race Policy Costs Flint Plant: Lansing Gains from Environmental Justice Controversy, The Detroit News, March 2, 1999, at A1. In their appeal the prayer center stated:
The EPA’s decision in the Select Steel case is deeply flawed . . . . Because of the haste with which Select Steel was processed and decided, it is clear that Select Steel was not decided on the basis of sound evidence or analysis but for improper political reasons, including unrelenting political pressure from right-wing advocates and from Michigan decision makers.
Id. (quoting Julie Hurwitz, attorney for the St. Francis Prayer Center and a lawyer with the non-profit Sugar Law Center for Economic and Social Justice). In response to the prayer center’s petition for appeal, EPA stood by the conclusions and analysis of its original decision, but refused to issue a formal response as “EPA’s regulations implementing Title VI of the Civil Rights Act of 1964, as amended, make no provision for the Petition.” Letter from Ann E. Goode, Director, EPA’s Office of Civil Rights, to Julie H. Hurwitz, Executive Director, National Lawyer’s Guild/Sugar Law Center for Economic and Social Justice, Luke Cole, General Counsel, Center of Race, Poverty & the Environment, California Rural Legal Assistance Foundation, Susana Almanza, People Organized in Defense of Earth and Her Resources, Elizabeth Teel, Supervising Attorney, Tulane Environmental Law Clinic, Ross Richard Crow, Sahs & Associates, Grover Hankins, Thurgood Marshall School of Law (July 29, 1999).
203 See Foster, Interview, supra note 136.
204 Interim Guidance, supra note 98, at 12. Although this language is found in the “justification” section of the document, it seems elementary that if EPA contemplated that if a permit in compliance could reach the justification stage of the Title VI process, then it must have earlier been found to have had an “adverse effect” and a discriminatory impact on the community in question.
205 See Foster, Interview, supra note 136.
206 See id.
207 See id.
208 See Exec. Order 12,898, supra note 88, § 6–609; see also Sive & Srolovic, supra note 74, at Col. 1.
209 Interim Guidance, supra note 98, at 4.
210 Telephone Interview with Jerome Balter, Counsel for Chester Residents Concerned for Quality Living, Public Interest Law Center of Philadelphia (Mar. 24, 1999); see also Mank, Private Cause of Action, supra note 66, at 23 n.132; supra text accompanying notes 156–76. Professor Mank additionally explains that an EPA complaint can be used to galvanize political opposition to a plant and, given the expense to the fund recipient of appealing a negative decision, the recipient will likely agree to cancel or relocate the challenged project. See Mank, Private Cause of Action, supra note 66, at 23.
211 See Mank, Private Cause of Action, supra note 66, at 22 (citing Cannon v. University of Chicago, 441 U.S. 677, 706 n.41 (1979); Arthur R. Block, Enforcement of Title VI Compliance Agreements by Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev. 1, 10 (1983); Cole, supra note 3, at 321; Fisher, supra note 2, at 316).
212 See supra text accompanying notes 116–20; see also Mank, Private Cause of Action, supra note 66, at 22–23.
213 See Protection of Environment, 40 C.F.R. § 7.130(a); see also Mank, Private Cause of Action, supra note 66, at 23.
214 See Mank, Private Cause of Action, supra note 66, at 24; Colopy, supra note 66, at 167.
215 See Mank, Private Cause of Action, supra note 66, at 24; Colopy, supra note 66, at 167.
216 See Mank, Private Cause of Action, supra note 66, at 24; Colopy, supra note 66, at 167; see also infra note 446 and accompanying text.
217 See Mank, Private Cause of Action, supra note 66, at 24 (citing Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. § 1988(b)); Colopy, supra note 66, at 166 n.194; see also infra text accompanying notes 446–64.
218 See Mank, Private Cause of Action, supra note 66, at 24.
219 See supra text accompanying notes 70–77.
220 See, e.g., Jeffrey A. Cohen & Karen A. Mignone, Environmental Justice for Citizen Group: 3d. Cir. Creates New Obstacle to Waste Facility Siting Permits, Envtl. Compliance & Litig. Strategy, April 1998, at 1 (explaining that courts had traditionally “limited citizen suits to Sec. 601 of [Title VI], which . . . required plaintiffs to show discriminatory intent to maintain a claim.”); Cole & Shanklin, supra note 72, at Col. 1 (reporting that “it is uncertain whether a private right of action exists that would allow plaintiffs to directly enforce [EPA] regulations.”). But see Lazarus, supra note 7, at 835 (stating that it is “well settled that Title VI provides an implied private right of action on behalf of individuals who have suffered discrimination deemed unlawful by Title VI.”) (citing Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, 593–95 (1983)).
221 See infra notes 449–53 and text accompanying text.
222 See 944 F. Supp. 413, 413–18 (E.D. Pa. 1996) rev’d, 132 F.3d 925 (3d Cir. 1997) and vacated, 119 S. Ct. 22 (1998).
223 See id.
224 See Foster, Justice, supra note 35, at 779.
225 See Chester, 944 F. Supp. at 414–15.
226 See id. at 415.
227 See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 927 n.1 (3d Cir. 1997).
228 See Chester, 944 F. Supp. at 415. Defendants in the suit were James M. Seif (the Commonwealth’s Secretary), Carol R. Collier (PADEP’s Director of the Southeastern Region), PADEP, and PADEP’s Southeastern Regional subdivision. See id.
229 Id.
230 See id.
231 See id.
232 See id.
233 See Chester, 944 F. Supp. at 415.
234 Id.
235 See id. at 417; see also supra text accompanying notes 70–77. Section 601 of Title VI of the Civil Rights Act of 1964 provides that, “[n]o person in the United States shall, on the ground 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.” 42 U.S.C. § 2000d (1999).
The district court indicated that, based on CRCQL’s briefs, not its complaint, it appeared as though the plaintiff could potentially carry a Title VI, Section 601 intentional discrimination claim. See Chester, 944 F. Supp. at 416. Following a recital of CRCQL’s factual allegations, the court quoted with approval CRCQL’s brief, which characterized PADEP’s failure to rectify “their failed waste permit program” as the “functional equivalent of a smoking-gun intentional discrimination.” See id. This failure to rectify could be sufficient to raise an inference of invidious intent based on the fact that the defendant’s actions had the “clear and obvious effect of subjecting African Americans to discrimination.” See id. (quoting Plaintiffs’ Response Brief at 9). The court, however, found that the plaintiff must have specifically raised an allegation of discriminatory intent in its pleadings, rather than alleging that a discriminatory effect states an implied right of action, or attempting to amend its complaint with the “smoking-gun” argument in its briefs. See id. Therefore, the court was compelled to dismiss CRCQL’s Section 601 complaint, but granted the plaintiffs fifteen days to amend. See id at 417.
236 See Chester, 944 F. Supp. at 414.
237 See id. at 417–18. Section 602 of Title VI authorizes agencies which provide federal financial assistance, reading “to effectuate the provisions of section 2000d of this title . . . by issuing rules, regulations, and orders of general applicability which shall be consistent with achievement of the objectives of the statute . . . .” 42 U.S.C § 2000d-1. As authorized by Section 602, EPA has promulgated regulations relating to civil rights. First:
A recipient [of federal funds] shall not use 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, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex.
40 C.F.R. § 7.35(b). Additionally, “[a]pplicants for EPA assistance [shall] submit an assurance with the applications stating that, with respect to their programs or activities that receive EPA assistance, they will comply with the requirements of this part.” 40 C.F.R. § 7.80(a).
238 See Chester, 944 F. Supp. at 417–18.
239 Id. at 417; see Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317 (3d. Cir. 1979).
240 Chester, 944 F. Supp. at 417 (E.D. Pa. 1996) (citing Chowdhury, 677 F.2d at 319–20).
241 See id. (citing Chowdhury, 677 F.2d at 321). Chowdhury, which was not an environmental case, explored the question of whether a plaintiff must exhaust all administrative remedies before suing under Title VI. See id. The Chester court quoted Chowdhury in that regard:
Congress explicitly provided for an administrative enforcement mechanism, contained in Section 602, by which the funding agency attempts to secure voluntary compliance and, failing that, is empowered to terminate the violator’s federal funding. Under the regulations promulgated pursuant to this section, an aggrieved individual may file a complaint with the funding agency but has no role in the investigation or adjudication, if any, of the complaint. The only remedies contemplated by the language of the Act and the Regulations are voluntary compliance and funding termination. There is no provision for a remedy for the victim of the discrimination, such as injunctive relief or damages.
Id. (quoting Chowdhury, 677 F.2d 319–20).
242 See id.
243 See id. at 417–18.
244 See id. at 928. Because CRCQL informed the district court that it would not be amending its Section 601 claim, the district court entered final judgment to dismiss on that count. See id.
245 See Chester, 944 F. Supp. at 927.
246 See id. at 926, 937.
247 See id. at 927.
248 Reaffirming the scheme of Title VI, the Chester court stated that a private right of action under Section 601 reaches instances of intentional discrimination and that Section 602 authorizes agencies that distribute federal funds to promulgate regulations that implement Section 601. See id. at 929 (citing Alexander v. Choate, 469 U.S. 287, 293 (1985)). The court found that the EPA implementing regulation “clearly incorporates a discriminatory effect standard.” Id. Further, the Third Circuit cited the United States Supreme Court for the authority that agencies may validly promulgate regulations incorporating such a standard. See id. (citing Alexander, 469 U.S. at 292–94).
249 463 U.S. 582 (1983).
250 469 U.S. 287 (1985).
251 See Chester, 132 F.3d at 930. Although Guardians was a divided decision with five separate opinions, the Supreme Court later made it clear in Alexander that Guardians “stands for at least two propositions: 1) a private right of action exists under Section 601 of Title VI that requires plaintiffs to show intentional discrimination; and 2) discriminatory effect regulations promulgated by agencies pursuant to Section 602 are valid exercises of their authority under that section.” Id. at 929 (citing Alexander, 469 U.S. at 929–94). The Third Circuit found that, while Guardians did not explicitly address the issue of whether a private right of action exists under discriminatory effect regulations, five Justices (Justices White, Marshall, Stevens, Brennan, and Blackmun) agreed in that decision that injunctive and declaratory relief are available in discriminatory effect cases. See id. at 930.
252 Id. at 931. The Third Circuit also considered the subsequent Alexander decision, in which the Supreme Court stated “Guardians suggests that the regulations [of the Rehabilitation Act] . . . could make actionable the disparate impact challenged . . . .” See id. at 931 (quoting Alexander, 469 U.S. at 294).
253 See id.
254 See id. at 932.
255 Id. at 932. The court of appeals characterized the Chowdhury decision as addressing the extent to which Section 602 and its implementing regulations allowed private plaintiffs a peripheral role in administrative proceedings. See id. Chowdhury determined that this peripheral role indicated that plaintiffs should not have to pursue a regulatory remedy before initiating a direct action under Section 601. See id.
256 The Chester court considered but declined to rely on “dicta” from the previous Third Circuit decision of Pfeiffer v. Marion Center Area School District, 917 F.2d 779 (3d Cir. 1990), which arguably interpreted Guardians as allowing a private right of action. See Chester, 132 F.3d at 932–33. The Chester court quoted the language in question: “[a] . . . majority [in Guardians] seemed to suggest that proof of discriminatory effect suffices to establish liability when suit is brought to enforce the regulations rather than the statute itself.” Id. at 932 (quoting Pfeiffer, 917 F.2d at 788). The Chester court differentiated Pfeiffer by clarifying that it had addressed discriminatory intent, not discriminatory effect, that it did not consider the status of a private right of action under Section 602, and that Pfeiffer did not specify who may bring suit to enforce the regulations. See id. at 933.
257 862 F.2d 987, 994 (3d Cir. 1988)
258 See Chester, 132 F.3d at 933.
259 Id. (quoting Polaroid Corp., 862 F.2d at 994) (citations omitted).
260 See id.
261 Id. at 933 (quoting Alexander, 469 U.S. at 293).
262 422 U.S. 66 (1975).
263 Chester, 132 F.3d at 933 (quoting Cort, 422 U.S. at 78).
264 See id. According to the court, “[t]he purpose of the amendment was to broaden the scope of the coverage of Title VI in response to the Supreme Court’s decision in Grove City College v. Bell, 465 U.S. 555 (1984), where the Court narrowly construed the terms ‘program or activity.’” Id. (citations omitted).
265 See Chester, 132 F.3d at 934. The version of the bill stated that the “private right of action which allows a private individual or entity to sue to enforce Title IX would continue to provide the vehicle to test [certain] regulations in Title IX and their expanded meaning to their outermost limits.” H.R. Rep. No. 99-963, pt. 1, (1986). The Chester court noted that courts have traditionally regarded Title IX and Title VI jurisprudence as largely interchangeable and that the drafters of Title IX explicitly assumed that it would be interpreted and applied as had Title VI. See Chester, 132 F.3d at 934 n.12 (citing Cannon v. University of Chicago, 441 U.S. 677 (1979)).
266 See Chester, 132 F.3d at 934. The court examined the comments of Senator Hatch who stated:
The failure to provide a particular share of contract opportunities to minority-owned businesses, for example, could lead Federal agencies to undertake enforcement action asserting that the failure to provide more contracts to minority-owned firms, standing alone, is discriminatory under agency disparate impact regulations implementing Title VI . . . . Of course, advocacy groups will be able to bring private lawsuits making the same allegations before federal judges.
Id. (quoting 134 Cong. Rec. 4257 (1988)). Representative Fields stated similarly, “If a greater percentage of minority than white students fail a bar exam or a medical exam . . . will a State be subject to private lawsuits because the tests have a disproportionate impact on minorities . . . .” Id. (quoting 130 Cong. Rec. 18,880 (1984)).
267 See id. Among the compilations presented was a memorandum by the Office of Management and Budget (OMB) that stated that “every licensed attorney would be empowered to file suit to enforce the ‘effects test’ regulations of agencies, challenging practices in every aspect of every institution that receives any Federal assistance.” Id. (quoting Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 98th Cong. (1984)).
268 See id. at 933–34. The United States as amicus for the plaintiffs had advanced the arguments that the court ultimately relied upon as part of its larger theory that Congress had “acknowledged the existence of a privately enforceable discriminatory effects standard” when it amended Title VI with the Civil Rights Restoration Act of 1987. Amicus Brief of the United States at 19, Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3rd Cir. 1997) (No. 97–1125). The United States asserted that during the congressional proceedings that preceded the enactment of the 1987 Act, “Congress was aware that the Supreme Court in Guardians had upheld agency discriminatory effects regulations as valid.” Id. at 20. “Both supporters and opponents of the amendments expressly stated that private plaintiffs would be able to sue recipients of federal funds for violation of the regulations.” Id. As support, the United States: (1) offered statements from a House Report on the early version of the bill (H.R. Rep. No. 99-963, pt. 1, (1986)), statements of Senator Hatch (134 Cong. Rec. 4257 (1988)) and Representative Fields (130 Cong. Rec. 18,880 (1984)); (2) noted that witnesses to the hearings claimed that the discriminatory effects regulations existed and could be enforced by private parties (Civil Rights Restoration Act of 1985: Joint Hearing on H.R. 700 Before the House Comm. on Educ. & Labor and the Subcomm. on Civil & Const. Rights of the House Comm. on the Judiciary, 99th Cong. 1095, 1099 (1985); Civil Rights Act of 1984: Hearing on S. 2568 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 98th Cong. 153–54, 200 (1984)); and (3) noted that the understanding of a private right of action was put forth by the executive branch in a memorandum from the OMB (Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 98th Cong. 527 (1984)). See Amicus Brief of the United States at 20–22, Chester (No. 97–1125). The United States argued that, given Congress’s awareness that the discriminatory effects regulations could be enforced by private parties, and given that Congress did not expressly indicate an intent not to allow private enforceability when it enacted the 1984 and 1987 amendments, Congress therefore ratified that the discriminatory effects standard would be open to private enforcement. See id. at 23.
The Chester court concluded that the above history constituted “some indication” of Congressional intent to imply a private right of action under the Title VI regulations, but did not cite to the United States’s third argument regarding witnesses to the hearings. See Chester, 132 F.3d at 934; see infra text accompanying note 269.
269 See Chester, 132 F.3d at 934. PADEP countered the United States’ argument by asserting that the sole purpose of the Civil Rights Restoration Act’s amendment to Title VI was to address the Supreme Court’s 1984 decision in Grove City College v. Bell, 465 U.S. 555 (1984), by expanding the definition of the term “program or activity,” not to consider a private right of action. See Brief for Appellees at 18, Chester (No. 97–1125). In Grove City, by narrowly defining the term “program or activity,” the Supreme Court held that federal funds received by a subunit of an institution did not bring the entire institution within the nondiscrimination mandates of Title IX. See Grove City, 465 U.S. at 573; see also Mank, Private Cause of Action, supra note 66, at 42. PADEP argued that neither Grove City, nor the amendments, explicitly or implicitly addressed the private right of action issue regarding Title VI regulations. See Brief for Appellees at 18, Chester (No. 97–1125).
Additionally, PADEP cautioned that the comments cited by the United States might only reflect the viewpoints of those particular members of Congress, not the legislative intent as a whole and should not be construed as ratification. See id. at 19.
270 See Brief for Appellees at 19, Chester (No. 97–1125) (quoting Cort v. Ash, 422 U.S. 66, 78 (1975)).
271 See id. PADEP specifically referenced the strict notice requirements, filing requirements, and time line delineated in the EPA regulations, but not in the statute, and argued that these strict procedural requirements would theoretically not apply to private plaintiffs, rendering a private right of action inappropriate. See Brief for Appellees at 19–22, Chester (No. 97–1125); see also 42 U.S.C. § 2000d-1(1999); Chester, 132 F.3d at 935.
272 See Brief for Appellees at 19, Chester (No. 97–1125) (citing 40 C.F.R. § 7.120(a)); see also Chester, 132 F.3d at 935.
273 See Chester, 132 F.3d at 935. According to PADEP, a private right of action would be inconsistent with this procedure. See id.
274 See id.
275 See id.
276 See id. at 936.
277 See id. The court noted that while “it is well established that private plaintiffs do not have the authority to compel a termination of funding,” it would not make a determination itself regarding appropriate relief. Id. at 935–36 & n.15 (citing NAACP v. Medical Ctr., Inc., 599 F.2d 1247 n.27 (3d Cir. 1997); Cannon v. University of Chicago, 441 U.S. 677 (1979)). Instead, the Chester court stated that should relief be warranted, it would allow the district court to determine the appropriate remedy. See id.
278 See Chester, 132 F.3d at 936.
279 See id.
280 Id. (quoting Polaroid Corp. v. Disney, 862 F.2d 987, 994 (1998)).
281 Id. (quoting Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 947 (3d Cir. 1985)).
282 See id. (citing Cannon, 441 U.S. at 704).
283 See Chester, 132 F.3d at 936.
284 See id.
285 See id. at 933, 936.
286 See id. at 936.
287 See id. at 936–37. The court cited ten decisions from eight different circuits. See id.
288 See Chester, 132 F.3d at 937. Professor Mank, in his substantive critique of the Third Circuit Court of Appeal’s decision, argues that the Chester court’s reasoning regarding the first and third factors of the Polaroid test was strong (i.e., EPA’s regulations were properly within the scope of Title VI and a private right of action advances Title VI’s purposes), yet he criticized the court’s argument regarding the second factor, congressional intent. See Mank, Private Cause of Action, supra note 66, at 38–49. Professor Mank contends that the Chester court’s evidence of intent fails in light of recent Supreme Court decisions addressing the amount of evidence that courts must weigh to find that Congress intended to establish a private right of action. See id. at 38–49, 44 n.255. Specifically, he argues that “several Supreme Court decisions suggest that a private right of action may be implied by courts only if the original Congress enacting the statute intended to create a private right, or a subsequent Congress explicitly amended the statute to do so.” Id. at 44. Professor Mank also raises a question regarding the Chester court’s reliance on subsequent legislative history. See id. at 44–45. In short, “[i]n 1964, when it enacted Title VI, Congress probably never considered whether it wished to establish a private right to sue under Section 602 or under 601. [And] [s]ubsequent Congresses have not resolved the issue . . . .” See id. at 46.
Professor Mank, however, offers what he considers to be “a stronger argument than the Third Circuit’s for concluding that EPA’s regulations under Section 602 of Title VI create an implied right of action.” Id. at 38. In this regard, he asserts that consistency with Section 601, for which the Supreme Court applied a more lenient standard to recognize a right of action, would be offended by applying today’s more stringent standard to Section 602. See id. at 38, 53–58. This is especially so because “Sections 601 and 602 are interrelated and serve the same statutory purpose.” Id. at 53. Although Professor Mank acknowledges that the evidence of legislative intent to create a private right of action under Title VI is relatively weak, he concludes that under the standards that the Supreme Court applied to Section 601 approximately 20 years ago, “the fact that a private right of action will protect Title VI’s dual purposes of combating discrimination by fund recipients and protecting individual rights should be enough to imply that Congress intended to infer a private right of action under Title VI’s Section 602 implementing regulations.” Id. at 54, 58.
289 See Respondent’s Brief at 2, 5, Seif v. Chester Residents Concerned for Quality Living (U.S. 1998) (No. 97–1620) available in 1998 WL 435980. According to Jerome Balter, counsel for CRCQL, PADEP had originally indicated that it did not intend to appeal the Third Circuit’s decision. See Balter, supra note 210. Shortly after the Third Circuit Chester decision, however, a separate private claim to enforce the U.S. Department of Education’s regulations under Section 602 of Title VI was filed in a Pennsylvania District Court. See Powell v. Ridge, 1998 WL [804727] (E.D. Pa. 1998). When “the state powers that be” realized that another Title VI disparate impact challenge was following in the wake of Chester, the state decided to request certiorari. Balter, supra note 210. Mr. Balter indicated that both parties were surprised when the Supreme Court granted certiorari because the circuits were not split on the issue. See Chester, 132 F.3d at 936–37; Balter, supra note 210.
290 See Balter, supra note 210; Petitioner’s Brief at 14, Seif (No. 97–1620) available in 1998 WL 470120.
291 See Respondent’s Brief at 4, Seif (No. 97–1620) available in 1998 WL 435980.
292 See Petitioner’s Brief at 15, Seif (No. 97–1620) available in 1998 WL 470120.
293 See id.; see also Respondent’s Brief at 5, Seif (No. 97–1620) available in 1998 WL 470120.
294 See Respondent’s Brief at 4–5, Seif (No. 97–1620) available in 1998 WL 470120.
295 See id. at 3–7; see also Mank, Private Cause of Action, supra note 66, at 50.
296 See Respondent’s Brief at 3, 5, Seif (No. 97–1620) (citing Preiser v. Newkirk, 422 U.S. 395, 421 (1975) (holding that “[t]he rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed”)).
297 See id. at 6 (citing Los Angeles v. Lyons, 461 U.S. 555, 560–61 (1983)). Regarding the standing issue, CRCQP argued that “through their own action, or at the request of SRS,” PADEP afforded CRCQL the relief sought in this case and removed the injury, i.e., the permit issued by PADEP to operate the waste treatment facility in Chester. See id. at 6.
298 Id. at 7 (quoting Roe v. Wade, 410 U.S. 113, 125 (1973)). Unlike a transitory event such as a pregnancy or an election campaign, contentions around a permit will not both commence and expire before full opportunity for judicial review. Instead, if a permitting authority issues another permit that allegedly violates EPA regulations, there will be sufficient time to make a challenge. See id. CRCQL noted that it was only PADEP’s denial of SRS’s permit extension and SRS’s subsequent withdrawal that brought the end to the controversy in the case before the Court. See id.
299 See Respondent’s Brief at 8 n.3, Seif (No. 97–1620) available in 1998 WL 470120.`
300 See Petitioner’s Brief, Seif (No. 97–1620). On August 6, 1998, the U.S. Chamber of Commerce, National Black Chamber of Commerce, and Pennsylvania Chamber of Business and Industry filed a joint amicus brief in support of PADEP which relied more on socio-economic arguments than legal reasoning and did not address the issue of mootness. See Brief of Amicus Curiae of Chamber of Commerce of the United States of America, National Black Chamber of Commerce, Inc., and Pennsylvania Chamber of Bus. and Indus. in Support of Petitioners, Seif (No. 97–1620) available in 1998 WL 457676. The amici opened their joint brief by painting a picture of Chester as a city that experienced an economic decline in the post-war days of the 1950s. See id. at 3–4. Since the 1950s, the amici cited deteriorating home stock, a dramatic decrease in size, a four-fold increase in the African-American population, and a significantly poorer population. See id. at 4. However, in the 1980s, state and local governments instituted programs to improve the economy and living conditions in the city, such as implementing economic enterprise zones designed to trigger tax and financial incentives and to attract industrial facilities to areas of the city zoned for heavy industry. See id. at 5. The amici viewed CRCQL as opposing such efforts undertaken to restore the vitality of the community. See id. at 6.
The amici characterized the disparate effect allegation of the CRCQL as follows:
[CRCQL] complains neither of intentional discrimination nor of faulty environmental decision making. Instead it claims a legal right to block a duly permitted facility from safely operating in a heavily industrialized area simply because industrial facilities as a whole are not distributed throughout Delaware County in a manner that places them equidistant from people of all races.
Id. at 8. The amici argued that CRCQL, and the environmental justice movement as a whole, reject the view that minority and low-income communities need jobs, tax revenues, and the government incentive programs (such as empowerment zones, enterprise communities, and brownfields) that encourage businesses to come to disadvantaged minority communities. See id.
The amici contended that, while claiming to benefit communities, environmental justice advocates seek to ban permanently the siting of industries and destroy predictability in the siting and permitting process. See id. at 8–9. In actuality, environmental justice claims drive business away from the communities that need it most. See id. at 9. Consequently, the amici asked that the Third Circuit decision in Chester be reversed. See id. at 29.
301 See Petitioner’s Brief at 2, Seif (No. 97–1620). Arguing against mootness, PADEP cited CRCQL’s complaint extensively and asserted that CRCQL had actually challenged numerous permitted facilities in Chester, and had asked for not only recession of the SRS permit, but a permit review program and a revision of PADEP’s permitting criteria. See id. at 2–5.
302 See id. at 9–11. Mr. Balter indicated that there is some validity to this claim. See Balter, supra note 210. Initially, CRCQL expressed an intent to go forward and argue the case on the merits despite the PADEP’s revocation of SRS’s permit. See id. However, CRCQL also feared that the Supreme Court had an interest in eliminating private enforcement of regulations that did not require proof of intent. See Letter from Jerome Balter, Director, Environmental Law Project, to Julia B.L. Worsham (June 9, 1999) (on file with author). Then, on June 22, 1998, the Supreme Court issued Gebser v. Lago Vista Independent School District, 118 S. Ct. 1989 (1998), an opinion that made up CRCQL’s mind. See id. In Gebser, a Title IX case in which a student sought monetary damages from a school district for a teacher’s sexual harassment and assault, the Court discussed Guardians. See Gebser, 118 S. Ct. at 1998 (citing Guardians, 463 U.S. at 598). Justice O’Connor considered the fact that the school district had no actual notice of the incident and stated that “the relief in an action under Title VI alleging unintentional discrimination should be prospective only, because where discrimination is unintentional, ‘it is surely not obvious that the grantee was aware that it was administering the program in violation of the [condition].’” See Gebser, 118 S. Ct. at 1998 (quoting Guardians, 463 U.S. at 598). Mr. Balter construed Justice O’Connor’s dicta in Gebser to indicate that she understood Guardians as “approving private rights of action to enforce administrative effects regulations pursuant to Section 602, 42 U.S.C. 2000d-1. This was particularly important because Justice O’Connor, in Guardians, was strongly opposed to private rights of action under Section 602.” Letter from Jerome Balter, Director, Environmental Law Project, to Julia B.L. Worsham (June 9, 1999) (on file with author). Justice O’Connor’s disposition in Gebser, along with the fact that he saw no split in the circuits, made Mr. Balter wary of the Court’s grant of certiorari for Chester in early June. See Balter, supra note 210. CRCQL ultimately decided that it would prefer that the Supreme Court first construe private rights of action under Section 602 in respect to a different area of law, such as one effecting children’s education or women’s rights. See Letter from Jerome Balter, Director, Environmental Law Project, to Julia B.L. Worsham (June 9, 1999) (on file with author). CRCQL, thus, decided to argue for mootness, avoiding review of the favorable Third Circuit decision. See Balter, supra note 210. CRCQL, however, asserted that the decision below should not be vacated. See id.
303 See Petitioner’s Brief at 11, Seif (No. 97–1620). PADEP asserted the general rule of United States v. Munsingwear, Inc., 340 U.S. 36 (1950), that “when a civil case becomes moot pending appellate jurisdiction, ‘the established practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction to dismiss.’” Id. at 12 (quoting Munsingwear, 340 U.S. at 39)). The rationale behind this tenet is that vacatur “clears the path for future relitigation” by removing a judgment that the unsuccessful party was unable to challenge on the merits. See id. (quoting Munsingwear, 340 U.S. at 40). PADEP reasoned that, if the present controversy was deemed moot, PADEP would have no way to oppose on direct review the position of the Third Circuit. See id. at 12–13. In the interests of justice, PADEP asserted that it should not be left adversely affected without further recourse. See id. at 13. PADEP argued that vacating a judgment that becomes moot while pending appellate review serves the purpose of returning the parties’ legal relationship to its state before the suit was instituted. See id. Thus, “the rights of all the parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary.” See id. (quoting Munsingwear, 340 U.S. at 40).
304 Id. at 15.
305 See id.
306 340 U.S. 36 (1950); see supra note 303 and accompanying text.
307 Petitioner’s Brief at 15, Seif (No. 97–1620) (quoting Munsingwear, 340 U.S. at 40). PADEP concluded by cautioning the Court that to render the issue moot without vacating would “yield the absurd result that a state regulatory agency must stop advising regulated entities of the requirements of the law [i.e., requesting bond payment] for fear that the entity may elect not to proceed with a project and thus moot a related case.” Id. at 16.
308 See Chester, 119 S. Ct. at 22–23 (citing Munsingwear, 340 U.S. at 36).
309 Mary Greczyn, supra note 150 (quoting Eric Bock, Washington attorney).
310 See Mank, Private Cause of Action, supra note 66, at 60. Professor Mank cites several Title VI decisions in cases brought after the Supreme Court’s vacatur of the Third Circuit Chester decision where plaintiffs alleged disparate racial impact in both environmental justice and other contexts:
Powell v. Ridge, 1998 WL [804727] (E.D. Pa. 1998) (Slip Copy) (citing Chester for proposition that Section 602 of Title VI creates private right of action without mentioning Supreme Court’s vacatur of decision); Cureton v. National Collegiate Athletic Ass’n, 1998 WL § 1726653 (E.D. Pa. 1998) (denying defendant’s motion to amend order to certify question for immediate appeal because Supreme Court’s granting of certiorari in Chester did not raise substantial doubts about numerous circuit decisions recognizing private rights of action because one can only speculate about how Court would have decided case if it had not vacated the Third Circuit’s judgment); The South Bronx Coalition for Clean Air, Inc. v. Conroy, 20 F. Supp. 2d 565, 572 (S.D.N.Y. 1998) (observing that it is uncertain whether private right of action exists under section 602 after Supreme Court vacated Chester and dismissing claim because plaintiffs[‘] allegations are insufficient to establish a prima facie case of disparate impact under Title VI) . . . .
Id. at 60 n.347.
Upon appeal, the Third Circuit in Powell v. Ridge, followed its Chester decision and again affirmed a private right of action for enforcement of agency (Department of Education) disparate impact regulations under Title VI. See 189 F.3d 387, 400 (3d Cir. 1999). The Supreme Court denied certiorari of the Powell decision. Ryan v. Powell, 120 S. Ct. 579 (U.S. 1999) (No. 99–527); Ridge v. Powell, 120 S. Ct. 579 (U.S. 1999) (No. 99–574).
311 See Colopy, supra note 66, at 166.
312 See generally Balter, supra note 210.
313 See Colopy, supra note 66, at 165.
314 Fisher, supra note 2, at 317.
315 See Colopy, supra note 66, at 166.
316 See id. (citing Scelsa v. City Univ. of New York, 806 F. Supp. 1126, 1140 (S.D.N.Y. 1992); Wrenn v. Kansas, 561 F. Supp. 1216, 1221 (D. Kan. 1983); Coalition of Bedford-Stuyvesant Block v. Cuomo, 651 F. Supp. 1202, 1208 n.2 (E.D.N.Y. 1987)); see also Fisher, supra note 2, at 317 (citing Laramore v. Illinois Sports Facilities Auth., 722 F. Supp. 443, 451–52 (N.D. Ill. 1989)).
317 See Colopy, supra note 66, at 166 (citing Coalition of Bedford-Stuyvesant, 651 F. Supp. at 1208 n.2).
318 Id. at 166–67 (citing Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 120 (S.D. Ohio 1984); Shannon v. United States Dep’t of Hous. & Urban Dev., 436 F.2d 908, 918 (3d Cir. 1970)).
319 See Bryant v. New Jersey Dep’t of Transp., 998 F. Supp. 438, 445–46 (D.N.J. 1998) [hereinafter Bryant II].
320 See Colopy, supra note 66, at 167 (citing Neighborhood Action Coalition v. City of Canton, 882 F.2d 1012, 1017 (6th Cir. 1989); International Union, Int’l Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 282 (1986)).
321 Pub. L. No. 100–259, 102 Stat. 28 (1988) (Title VI provisions codified at 42 U.S.C. § 2000d-4a and 20 U.S.C. § 1687 (1988)). See Fisher, supra note 2, at 317–18.
322 See Fisher, supra note 2, at 318.
323 465 U.S. 555 (1984).
324 Fisher, supra note 2, at 318.
325 See Fisher, supra note 2, at 318 (citing, by way of example, United States v. Alabama, 828 F.2d 1532, 1548 (11th Cir. 1987) (per curiam)).
326 Fisher, supra note 2, at 318 (quoting Sonn, supra note 322, at 1590–91). The 1987 Act specifically broadened the prohibition of discrimination on an “institution-wide” basis to “all of the operations” of the fund recipient. See Civil Rights Restoration Act of 1987, Pub. L. No. 100–259 § 6, 102 Stat. 31 (1988) (codified at 42 U.S.C. § 2000d-4a (1988)); see also Fisher, supra note 2, at 318.
327 See Fisher, supra note 2, at 318.
328 See id.
329 522 U.S. 479 (1998).
330 See id. at 492.
331 Id. (quotations and citations omitted) (emphasis altered).
332 Id. (quotations omitted) (alterations added).
333 See Bryant II, 998 F. Supp. 438 (D.N.J. 1998).
334 Id.
335 See id. at 440.
336 Id. at 445. In Sandoval v. Hagan, another Title VI case decided after National Credit Union, the court avoided addressing the National Credit Union standard by finding that the plaintiff was an intended beneficiary of the contract between the federal fund recipient and the federal government. See 7 F. Supp. 2d 1234, 1263–67 (M.D. Ala. 1998), aff’d, 197 F.3d 484 (11th Cir. 1999).
337 See Fisher, supra note 2, at 319.
338 See id.
339 See, e.g., id.; Sandoval, 7 F. Supp. 2d at 1263–64 (finding that Title VI relationships are basically contractual and, therefore, the plaintiffs could bring an action as third-party beneficiaries of the contracts between the federal government and the fund recipient, the Alabama Department of Public Safety).
340 See, e.g., Bryant v. New Jersey Dep’t of Trans., 987 F. Supp. 343 (D.N.J. 1998) [hereinafter Bryant I]. In Bryant I, the plaintiffs, neighborhood groups in Atlantic City communities, argued that they were intended beneficiaries of a disputed highway extension and tunnel because the intended beneficiaries of the project included “all the citizens of the State of New Jersey and more particularly citizens of Atlantic City.” Id. at 352 (quoting Plaintiffs’ Opposition at 21). The court disagreed and found that the plaintiffs were not intended beneficiaries of the project because, “[t]o the extent that potential casino patrons, residents of Atlantic City or resident [sic] of New Jersey would benefit from this project . . . the logical nexus with the relevant program is too difuse [sic] to provide a basis for standing and thus for subject matter jurisdiction.” Id. The same argument could logically be made in regard to a large waste transfer station or similar facility.
341 See id.; supra note 340.
342 See supra text accompanying notes 329–32.
343 See supra text accompanying notes 326–27.
344 See Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984) (stating that “Defendants are not per se prohibited from locating a highway where it will have differential impacts upon minorities. Rather, Title VI prohibits taking actions with differential impacts without adequate justification.”); NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1334 (3d Cir. 1981) (stating that “A showing of disproportionate effect or impact alone may not establish a violation . . . . To be proscribed, then, the challenged practice must not only affect disproportionately, it must do so unnecessarily.”); Colopy, supra note 66, at 160.
345 657 F.2d at 1331–37; see Colopy, supra note 66, at 161.
346 608 F. Supp. at 146; see Colopy, supra note 66, at 161.
347 See Colopy, supra note 66, at 160–64.
348 Pub. L. No. 102–166, § 105(a), 105 Stat. 1071, 1074 (codified at 42 U.S.C. § 2000e-2(k) (Supp. 1991)).
349 See Colopy, supra note 66, at 163 & nn.170–71. Congress enacted the Civil Rights Act of 1991 (1991 Act) to strengthen Title VII disparate impact protections in response to the Supreme Court’s weakening of those protections in Wards Cove Packing v. Antonio, 490 U.S. 642, 657 (1989). See id. at 163 nn.170–71; see also Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 n.14 (11th Cir. 1993). Congress and the courts have used Title VII as a model for other civil rights legislation, so the 1991 Act could affect the way courts interpret Title VI protections. See Colopy, supra note 66, at 160–62 nn.158, 163; see also Elston, 997 F.2d at 1407 n.14. Colopy cites by way of example:
Bryan v. Koch, 627 F.2d 612, 619 (2d Cir. 1980) (“The consideration of alternatives that has occurred in Title VII cases is instructive as to the appropriate standard for challenges under Title VI.”); Larry P. v. Riles, 793 F.2d 969[, 982] n.9 (9th Cir. 1984) (approving use of Title VII’s three-part analysis in Title VI disparate impact cases); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) (elements of disparate impact analysis “gleaned by reference” to Title VII case law).
Colopy, supra note 66, at 160 n.158. The procedural mechanism for burden of proof and production outlined in the 1991 Act should be used as the Title VI standard because it is appropriate that the regulation of public spending (Title VI) be at least as rigorous as the regulation of private employment practices (Title VII). See id. at 163 n.178.
350 See Colopy, supra note 66, at 160–62 nn.158, 163; see also Elston, 997 F.2d at 1407 n.14.
351 See supra note 349.
352 Colopy, supra note 66, at 161 (citing Medical Ctr., Inc., 657 F.2d at 1332; Georgia State Conference, 775 F.2d at 1417; Coalition of Concerned Citizens, 608 F. Supp. at 127).
353 See id. at 161 n.161 (citing Medical Ctr., Inc., 657 F.2d at 1334; Scelsa v. City Univ. of New York, 806 F. Supp. 1126, 1141 (S.D.N.Y. 1992)).
354 See id. at 163 (citing 42 U.S.C. § 2000e-2(k)(1)(A)(i) (Supp. 1991). Under this formulation, the plaintiff can not simply point to the resultant statistical disparities to evidence discrimination; rather, the plaintiff must show that each element in the defendant’s overall decisionmaking is discriminatory, unless those elements are incapable of being separated. See id. at 163 n.173 (citing 42 U.S.C. § 2000e-2(k)(1)(B)(i) (Supp. 1991)).
355 See supra note 354.
356 Medical Ctr., Inc., 657 F.2d at 1333; Coalition of Concerned Citizens, 608 F. Supp. at 127; see also Colopy, supra note 66, at 161. “It is important to note [under Title VI case law] that while the burden of going forward with evidence shifts from the plaintiff to the defendant, the ultimate burden of persuasion may remain with the plaintiff.” Id. at 161 n.163 (citing Medical Ctr., Inc., 657 F.2d at 1334). But see supra note 349.
357 See Colopy, supra note 66, at 161–62 (citing Georgia State Conference, 775 F.2d at 1417).
358 See id. at 162 (citing Medical Ctr., Inc., 657 F.2d at 1334).
359 See id. (citing Medical Ctr., Inc., 657 F.2d at 1334).
360 See id. (citing Medical Ctr., Inc., 657 F.2d at 1336).
361 See id. at 164(citing Georgia State Conference, 775 F.2d at 1417); see also Fisher, supra note 2, at 321. Colopy cites Georgia State Conference of Branches of NAACP, 775 F.2d at 1417 because:
the Title VI disparate impact scheme laid out in Georgia State Conference was derived from Title VII standards. In Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), the Supreme Court altered the Title VII disparate impact scheme by shifting the burden of persuasion on the second justification prong from the defendant to the plaintiff. In the Civil Rights Act of 1991, Congress responded to this aspect of Wards Cove by returning the burden of persuasion with respect to justification to the defendant.
Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 n.14 (11th Cir. 1993) (citations omitted). Thus, Georgia State Conference properly represents the standard of proof under the 1991 Act.
362 42 U.S.C § 2000e-2(k)(1)(A)(i)(Supp. 1991). See Colopy, supra note 66, at 163–64. Clearly the 1991 Act’s “business necessity defense” would need to be adapted to fit Title VI, rather than Title VII, litigation. See id. at 164 n.174.
363 Albermarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); see Colopy, supra note 66, at 164. The defendant must have been afforded the opportunity to adopt the plaintiff’s proposals for alternative practices and must have refused to do so. See 42 U.S.C. § 2000e-(k)(1)(A)(ii); see also Colopy, supra note 66, at 164 n.177.
364 See supra text accompanying notes 352–55.
365 See Fisher, supra note 2, at 321; see also Watson, supra note 349, at 971–75; Elston, 997 F.2d at 1407 n.14 (referring to the distribution of burdens articulated in Georgia State Conference [mirrored in the 1991 Act] as a “more relaxed standard” than that articulated in prior case law).
366 See, e.g., Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1278 (M.D. Ala. 1998) (following distribution of burdens indicated in Georgia State Conference); Association of Mexican-American Educators v. California, 937 F. Supp. 1397, 1399 n.3 (N.D. Cal. 1996) (stating that “[c]ourts have generally applied the standards applicable to disparate impact cases under Title VII to disparate impact cases arising under Title VI.”). But see African American Legal Defense Fund, Inc. v. New York State Dep’t of Educ., 8 F. Supp. 2d 330 (S.D.N.Y. 1998). In African American Legal Defense Fund, although the court indicated that the “analytical framework for disparate impact cases under Title VI regulations is the same as that for Title VII cases,” the court ignored the scheme of the 1991 Act and declared that the burden of persuasion remains on the plaintiff. Id. at 338 n.12 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
367 See Fisher, supra note 2, at 321.
368 Elston, 997 F.2d at 1407 n.14.
369 See supra text accompanying notes 352–55.
370 Fisher, supra note 2, at 322.
371 See, e.g., Villanueva v. Carere, 85 F.3d 481, 487 (10th Cir. 1996) (comparing the percentage of Hispanic students enrolled at an experimental school with the percentage of Hispanic students in the school district); Larry P. v. Riles, 793 F.2d 969, 983 (9th Cir. 1984) (comparing the percentage of black students in the state school system’s “educable mentally retarded” population with the percentage of black students in the state school population); Fisher, supra note 2, at 322 (stating that a “challenge to the administration of a state enforcement scheme would necessitate a comparison of enforcement in the plaintiff’s community with state-wide enforcement. . . . [But] if the target of the suit is a facility sited by a county land-use board . . . then that county would be the universe for statistical analysis.”). But see Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 127–28 (S.D. Ohio 1984) (finding racially disparate impact not based on comparisons of population pools, but solely on statistical data regarding the affected population).
372 42 U.S.C.A. § 2000d (1999). See, e.g., supra note 32 (discussing classification of “Hispanics” as non-minorities in Yandle study).
373 See Gunn, supra note 32, at 1236.
374 See id. (citing UC Study, supra note 20, at 2; EPA Equity Report, supra note 25, at 9; Anthony R. Chase, Assessing and Addressing Problems Posed By Environmental Racism, 45 Rutgers L. Rev. 335, 338 (1993)).
375 See id. (quoting EPA Equity Report, supra note 25, at 9).
376 Id.
377 Hawai`i and New Mexico could currently present such a situation, and Texas and California will become majority minority states within 25 years. Edwin Tanji, Nation Headed for Ethnic Mix Like Isles’, The Honolulu Advertiser, Dec. 12, 1999, at A27.
378 See Fisher, supra note 2, at 322.
379 See id.
380 See id.
381 See id. at 323.
382 See id.
383 See Fisher, supra note 2, at 323.
384 See id.
385 In regard to courts potentially adopting EPA’s population comparison methodology, it should be noted that while EPA has processed 14 Title VI disparate impact claims since December of 1993, none of the resultant investigations concluded in findings of disparate impact. Letter Enclosure: Complaints Under Consideration or Investigation from Dan J. Rondeau, Director, U.S. EPA Office of Civil Rights, to Jerome Balter, Public Interest Law Center of Philadelphia (August 14, 1996). Given the conflict surrounding EPA’s Title VI regulatory enforcement and procedures, courts may choose not to adopt EPA’s constructs. See supra sections II.B.1–2.
386 See Cole & Shanklin, supra note 72, at Col. 1; Sive & Srolovic, supra note 74, at Col. 1. For the comparison geographic regions, similar facilitates were assessed. See Cole & Shanklin, supra note 72, at Col. 1. Similarity was determined by Standard Industrial Category (SIC) code, release of similar pollutants, and varying amount of Toxic Release Inventory (TRI) releases. See id.
387 See Cole & Shanklin, supra note 72, at Col. 1; Sive & Srolovic, supra note 74, at Col. 1; see also supra text accompanying notes 104–10.
388 Cole & Shanklin, supra note 72, at Col. 1. EPA indicated that this analysis is not conducted to assess the health effects created by emissions. See id. The agency reportedly is working on such a “harm analysis,” as well as an analysis regarding the results of cumulative impacts of all facilities within an affected community. See id.; Sive & Srolovic, supra note 74, at Col. 1.
389 See Fisher, supra note 2, at 324. However, drawing concentric circles around plants does not amply address concerns such as being down-wind or down-stream of a facility. Additionally, the accuracy of EPA’s complex statistical methodology itself has come into question with environmental justice advocates. See Cole & Shanklin, supra note 72, at Col. 1. According to EPA’s analysis, it is 73% more probable that an African-American will live within two miles of a TRI facility in certain studied areas of Louisiana than a member of any other racial group. See id. In contrast, critics of the EPA methodology have predicted that, if the population of the actual Shintech site is analyzed, rather than “comparative universes,” the data will show that African-Americans have a 400–500% higher probability of living in proximity to the Shintech site than non-African-Americans. See id.
390 See Balter, supra note 210; see also Fisher, supra note 2, at 324. Fisher notes that the “problem of resource expenditure is exacerbated by a recent Supreme Court decision which disallowed experts’ fees as attorney’s fees recoverable by the prevailing party in a Title VI suit.” Id. at 324 n.202 (citing West Virginia Univ. Hosps. v. Casey, 499 U.S. 83, 102 (1991)).
391 See Fisher, supra note 2, at 323–24.
392 See id. (citing Letter from the Sierra Club Legal Defense Fund (SCLDF) to the U.S. Commission on Civil Rights 6 (Sept. 2, 1993) [hereinafter SCLDF Letter] (requesting an investigation of Mississippi’s hazardous waste facility permitting program)).
393 See id. at 323 n.195.
394 See id.
395 See id. (indicating that while the State of Mississippi produces about 45,000 tons of hazardous waste a year, about 130,000 tons of hazardous waste are designated for dumping in Noxubee County and its immediate vicinity yearly); see also Plaintiffs’ Complaint at 8–20, Chester Residents Concerned for Quality Living v. Seif, 944 F. Supp. 413 (E.D. Pa. 1996) (No. 96–3960). The Chester complaint includes specifics detailing the tonnage of all existing waste facilities inside the census tract “affected,” the permit capacity in tons of the contested future facility, the presence and capacity of other industrial facilities in the tract, the racial composition of the tract in question, the racial composition of the residents within one-half mile and one mile of the contested facility site, the racial compositions of surrounding census tracts in the city and the absence of facilities in those areas, the racial composition of the surrounding city, the racial composition in the surrounding county, and the location of waste treatment facilities throughout the county as paired with relevant racial demographics. See id.
396 See Fisher, supra note 2, at 324.
397 See Balter, supra note 210.
398 See, e.g., Villanueva v. Carere, 85 F.3d 481, 487 (10th Cir. 1996) (finding no disparate impact where school’s 50% Hispanic enrollment “compared with approximately the same proportion of Hispanic students” in the entire school district); Larry P. v. Riles, 793 F.2d 969, 973 (9th Cir. 1984) (finding racial disparity where black students comprised 9% of the state school population, but 27% of the “educable mentally retarded” population, and the odds of a color-blind system resulting in such a statistic was one in a million).
399 See supra note 349.
400 See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994–95 (1988).
401 See id.
402 See id.
403 See Ottaviani v. State Univ. of New York at New Paltz, 875 F.2d 365, 372 n.7 (2d Cir. 1989) (citing M. Abramowitz & I. Steigan, Handbook of Mathematical Functions (National Bureau of Standards, U.S. GPO, Applied Mathematics Series No. 55, 1966). A finding of 2–3 standard deviations equates to a one in 384 chance that a result was random. See id. (citing M. Abramowitz & I. Steigan, Handbook of Mathematical Functions (National Bureau of Standards, U.S. GPO, Applied Mathematics Series No. 55, 1966). Courts have generally determined that a finding of 2–3 standard deviations can be a strong indicator of discrimination. See, e.g., id. at 372; Waisome v. Port Auth. of NY & NJ, 948 F.2d 1370, 1376 (2d Cir. 1991) (finding that 2–3 standard deviations can strongly indicate discrimination, but refusing to establish a minimum threshold for statistical significance); Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1556 (11th Cir. 1994) (finding an inference of race based discrimination where calculated disparity was 17.6 standard deviations); Emmanuel v. Marsh, 897 F.2d 1435, 1443 (8th Cir. 1990) (finding that disparity of 4.9 standard deviations was statistically significant and, considering the additional evidence of past discrimination, established the plaintiffs’ prima facie case); Rendon v. AT&T Tech., 883 F.2d 388, 397–98 (5th Cir. 1989) (rejecting defendant’s argument that disparity of 3 standard deviations must be shown and holding that finding of 2.9 standard deviations was sufficient evidence of disparity).
404 See, e.g., Frasier v. Garrison ISD, 980 F.2d 1514, 1526–27 (5th Cir. 1993) (finding that difference of 4.5% between rates of test passage for blacks versus whites was not sufficiently substantial). This type of analysis was widely used in the 1970s and 1980s, but Frasier was the only federal appellate court decision to use a “common sense” comparison of ratios since the 1988 Watson decision. See id.; see Dothard v. Rawlinson, 433 U.S. 321, 329–31 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 430 n.6 (1971); Bunch v. Bullard, 795 F.2d 384, 395 (5th Cir. 1986); Moore v. Southwestern Bell Tel., Co., 593 F.2d 607, 608 nn.1–2 (5th Cir. 1979); Bushey v. New York State Civil Serv. Comm’n, 733 F.2d 220, 225–26 (2d Cir. 1984); Bridgeport Guardians v. Bridgeport Civil Serv. Comm’n, 482 F.2d 1333, 1335 (2d Cir. 1973); Craig v. City of Los Angeles, 626 F.2d 659, 661–62 (9th Cir. 1980); United States v. County of Fairfax, 629 F.2d 932, 939–40 (4th Cir. 1980); Firefighters Inst. for Racial Equality v. City of St. Louis, 549 F.2d 506, 510 n.4 (8th Cir. 1977); Douglas v. Hampton, 512 F.2d 976, 982 (D.C. Cir. 1975); Yuhas v. Libby Owens Ford Co., 562 F.2d 496, 498–500 (7th Cir. 1977); Castro v. Beecher, 459 F.2d 725, 735 (1st Cir. 1972).
405 See EEOC v. Steamship Clerks Union Local 1066, 48 F.3d 594, 604 (1st Cir. 1995); NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995); EEOC v. O&G Spring Wine Farms, 38 F.3d 872, 875 (7th Cir. 1994); Newark Branch of NAACP v. Harrison, 940 F.2d 792, 800 (3d Cir. 1991).
406 See supra note 349.
407 See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988).
408 See supra text accompanying note 369.
409 See, e.g., Elston v. Taladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993) (stating that “a plaintiff must first demonstrate that a facially neutral practice has a disproportionate adverse effect on a group protected by Title VI.”); Young v. Montgomery County, 922 F. Supp. 544, 549–50 (M.D. Ala. 1996) (stating that “[i]nitially, a plaintiff must show by a preponderance of the evidence that a facially neutral educational practice has a racially disproportionate adverse effect.”).
410 See, e.g., Garcia v. Spun Steak Co., 998 F.2d 1480, 1484–86 (9th Cir. 1993) (finding that the plaintiff must prove that the policy has adverse effects, that the impact of the policy is on a condition or privilege of employment, that the adverse effects are significant, and that the employee population in general is not affected by the policy).
411 See Allen v. Wright, 468 U.S. 737, 756–57 (1984); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1043 (7th Cir. 1987) (finding in a Title VI, educational context that, a tangible impact may be based upon the diminished ability of students to receive an education).
412 See Allen, 468 U.S. at 755; Grimes v. Cavazos, 786 F. Supp. 1184, 1186 (S.D.N.Y. 1992). The Allen court warned that stigma “is one of the most serious consequences of discriminatory government action.” See id.
413 See Fisher, supra note 2, at 325.
414 Brief of Amicus Curiae of Chamber of Commerce of the United States of America, National Black Chamber of Commerce, Inc., and Pennsylvania Chamber of Bus. and Indus. in Support of Petitioners, Seif (No. 97–1620) available in 1998 WL 457676 (citing EPA Equity Report, supra note 25, at 11, 13) (stating that “[e]xposure is not the same as health effects [and] [t]here is a general lack of data on environmental health effects by race and income [and on the] environmental contribution to these diseases.”) (alteration in Brief of Amicus Curiae Chamber of Commerce of the United States of America, National Black Chamber of Commerce, Inc., and Pennsylvania Chamber of Bus. and Indus. at 29, Seif (No. 97–1620)).
415 See Fisher, supra note 2, at 325.
416 See supra text accompanying notes 189–93, 203.
417 Jerome Balter has hypothesized that, given the complexity and necessary expense of establishing causation, a cumulative impact analysis will never decide any complaint. See Balter, supra note 210.
418 See Foster, Interview, supra note 136. The question here is whether plaintiffs should be held to an easier standard in establishing “adversity” or “impact” where the group in question is suffering environmentally related health effects and, therefore, is more vulnerable to chemical exposure. See id. For example, in June, 1995, 60% of Chester’s pre-school age children exceeded the Center for Disease Control’s (CDC) recommended limit of lead per deciliter of blood. See Nate House, Westinghouse to Pay $400,000 for Environmental Violations, Pa. Tribune, June 26, 1998, at 2A. It stands to reason that the national ambient air quality standards for lead were not established with such a population in mind. What may be a safe emission level for a healthy community may very well be quite dangerous to children who are already suffering from pervasive lead poisoning. The current scheme of establishing the plaintiff’s prima facie case does not take into effect such variables. Courts will need to decide whether these variables should be considered, or whether this type of analysis will put judges in an improper position of second guessing existing environmental standards and will make Title VI a surrogate for environmental laws.
African American Legal Defense Fund, Inc. v. New York State Dep’t of Educ., 8 F. Supp.2d 330 (S.D.N.Y. 1998), may be instructive regarding the limits that courts may place on addressing such policy considerations. In that case, a civil rights organization and the parents of Hispanic and African-American public school students challenged state legislation that required state school funds to be distributed based on student attendance rather than enrollment. See id. at 336. The plaintiffs alleged that the attendance-based system of fund distribution created a disparate impact on New York City minorities because of factors such as single parenting, poor housing, and poor medical programs, which contributed to student absenteeism. See id. at 338. In response, the court stated that “one cannot look to Title VI’s regulations for remedy for any alleged disparate impact of this nature, however real and distressing.” Id. The court reasoned that, because it was not the practices of the fund recipients (the school districts) that produced these social problems and the absenteeism, “Title VI’s regulations support no action under law upon those factors.” See id. at 339. Thus, the court appeared to be unwilling to find a disparate impact under Title VI where the differences resulted from societal factors that disproportionately impacted on minorities, but were not caused by the defendants’ program policies. See id.
419 See supra notes 129–30 and accompanying text.
420 See supra text accompany notes 356, 357.
421 See supra text accompanying note 361.
422 NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1333 (3d Cir. 1981); Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984); see supra note 356. But see supra note 349. One commentator questions the fairness of even imposing this level of burden upon defendants in a facility siting context. See Bradford C. Mank, Environmental Justice and Discriminatory Siting: Risk Based Representation and Equitable Compensation, 56 Ohio St. L.J. 329, 386 (1995) [hereinafter Mank, Equitable Compensation]. According to Professor Mank, courts should not adopt the 1991 Civil Rights Act’s expansion of Title VII protections to Title VI without explicit congressional instruction. See id. “Unlike job discrimination, the siting of a polluting or disposal facility brings both costs and benefits to any community.” Id. at 332. In fact, “facilities often bring greater tax and employment benefits than harms.” Id. at 386. Professor Mank argues that the plaintiff should therefore be required to prove the existence of statistically significant disparity and that the harms to the affected group exceed the benefits that the facility will provide to that group. See id.
423 See Colopy, supra note 66, at 161 (citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985)).
424 See, e.g., Young v. Montgomery County Bd. of Educ., 922 F. Supp. 544, 551–52 (M.D. Ala. 1996) (finding that prevention of athletic recruitment from majority white high schools justified the adverse impact created by policies that required transfer students to forgo one year of athletic involvement); New York Urban League v. New York, 71 F.3d 1031, 1039 (2d Cir. 1995) (finding that the disparate benefit caused by subsidies provided to predominately white commuter rail users was justified by the benefits that the commuter rail system produced for the city, such as minimized road congestion, decreased pollution, increased subway and bus ridership).
425 Sandoval v. Hagan, 7 F. Supp.2d 1234, 1264 (M.D. Ala. 1998), aff’d, 197 F.3d 484 (11th Cir. 1999). In Sandoval, the district court found no substantial justification for requiring English only driver’s license examinations where alleged safety concerns did not prevent non-English speaking out of state licensees from driving, did not prevent illiterate or deaf English speakers from driving, and international highway symbols were used throughout the state. See id. at 1301–02. The court also found that the administrative concerns did not justify the disparate impact because the department had successfully administered foreign language exams over the past ten years and had already expended substantial resources in making accommodations for deaf and illiterate English speakers. See id. at 1303–05.
426 See Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1413–14 (11th Cir. 1993) (finding that, even if siting a new school in a majority white neighborhood increased the racial imbalance in a formerly segregated school system, the lack of adequate land in the African-American majority neighborhood justified the decision).
427 See Wards Cove Packing v. Antonio, 490 U.S. 642 (1989). Although the 1991 Act specifically overruled Wards Cove as to the allocation of burdens, it did not explicitly define business necessity in a manner that was inconsistent with Wards Cove. See 42 U.S.C. § 2000e-2(k)(1)(A)(i) (Supp. 1991). But see infra note 428 and accompanying text.
428 Donnelly v. Rhode Island Bd. of Governors, 929 F. Supp. 583, 593 (D. R.I. 1996); see, e.g., EEOC v. Steamship Clerks Union Local 1066, 48 F.3d 594, 607 (1st Cir. 1995) (finding that union’s policy of continuing family traditions was not necessary to the business of steamship clerks). The Donnelly court stated that “Section 2000e-2(k)(1)(A) was designed to codify the concepts of ‘business necessity’ and ‘job relatedness’ as they existed before . . . Wards Cove . . . .” See Donnelly, 929 F. Supp. at 593. The court inferred that, because the language of an earlier version of the 1991 Act (“required by necessity”) had been altered to read “consistent with business necessity,” Congress “meant to require something less than a showing of indispensability.” See id. (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)). The Donnelly court additionally noted that if the defendant was required to show that the practice in question was indispensable, then no alternative less discriminatory practice could exist, rendering the next provision of the 1991 Act meaningless. See id.; see also supra text accompanying note 363.
429 See supra text accompanying notes 424–28.
430 See, e.g., Young v. Montgomery County Bd. of Educ., 922 F. Supp. 544, 551–52 (M.D. Ala. 1996); New York Urban League v. New York, 71 F.3d 1031, 1039 (2d Cir. 1995). A permitting authority may raise benefits such as increased jobs and tax base for the community. However, it seems doubtful that a court will accept such a justification because these benefits are in no way related to the goals of the issuer of an environmental permit. See supra text accompanying note 425.
431 See Elston, 997 F.2d at 1413–14. In a facility siting case, zoning restrictions may be especially important in this regard.
432 See Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110 (S.D. Ohio 1984). The court found that the defendants had legitimate non-discriminatory reasons for siting a highway based on project momentum (ten years of planning) and geography (six million dollars of property had already been purchased through eminent domain). See id. at 113; see also Fisher, supra note 2, at 326. It should be noted that in most facility siting cases it will not be the defendant state or municipal agency that has invested funds, but a non-party private business interest. Further, if a challenge is brought immediately after a permit is issued, it is less likely that considerable time and funds already will have been invested in the project. See id. at 327.
433 See Brief of Amicus Curiae Chamber of Commerce of the United States of America, National Black Chamber of Commerce, Inc., and Pennsylvania Chamber of Bus. and Indus. at 24, Seif v. Chester Residents Concerned for Quality of Living, (U.S. 1998) (No. 97–1620). The amicus brief specifically references a predominantly African-American community in Sumter County, Alabama, which hosts the “largest hazardous waste landfill in the country.” See id. at 25. The brief contends that for four decades before the landfill was built, the population of Sumter declined by 40% and the remaining residents experienced one of the highest levels of poverty, illiteracy, and infant mortality in the state. See id. Since the landfill’s opening, however, tax revenues have enhanced infrastructure, educational opportunities, and health care delivery systems in the community, dramatically reducing illiteracy and infant mortality rates. See id.
434 See id.
435 See generally Mank, Equitable Compensation, supra note 422, at 333 (proposing “a risk-based approach to representing and compensating . . . any person affected by a siting decision”).
436 See, e.g., U.S. EPA Region 5, Environmental Risk: Your Guide to Analyzing and Reducing Risk (Oct. 1991) <http://www.epa.gov/reg5oopa/risk.htm>.
437 See 42 U.S.C. § 2000e-(k)(1)(A)(ii) (Supp. 1991).
438 See Colopy, supra note 66, at 161 & n.160–61 (citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985)).
439 See Albermarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); see Fisher, supra note 2, at 325; see also Colopy, supra note 66, at 164. The defendant must have been afforded the opportunity to adopt the plaintiff’s proposals for alternative practices and must have refused to do so. See 42 U.S.C. § 2000e-(k)(1)(A)(ii); see also Colopy, supra note 66, at 164 n.177.
440 See Elston v. Taladega County Bd. of Educ., 997 F.2d 1394, 1413 (11th Cir. 1993) (finding that, since there was no evidence that discriminatory animus motivated the school district’s decision not to build in a minority neighborhood, the plaintiffs could not show that the location decision was pretextual).
441 See supra text accompanying notes 56–63.
442 See Fisher, supra note 2, at 328 (citing Plaintiff’s Complaint at 31–32, Clean Air Alternative Coalition v. United States Dept. of Transp. (N.D. Cal. 1993) (No. C-93–0721-VRW)).
443 See generally Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110 (S.D. Ohio 1984).
444 See Fisher, supra note 2, at 327–28. A plaintiff’s ability to do so, however, may depend on when in the life of the project suit may be brought. See supra notes 129–30 and accompanying text.
445 See id. at 328. Frequently, legal and financial considerations have forced creative alternatives to pollution generation that was once thought necessary. See id. Fisher offers the following example:
[I]n the early 1970s, the oil industry opposed phasing lead out of gasoline, arguing that such a measure would cost seven cents a gallon, or $7 billion a year. In 1990, with the phase-out 99% complete, actual costs had proven to be 95% lower than the industry estimate, due to technological innovation.
Id. Fisher also cites the result of the recent Supreme Court decision of City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 333 (1994), which classified municipal incinerator ash as hazardous waste under certain EPA criteria. See id. In that case, the City of Chicago argued that there was no feasible alternative to producing lead and arsenic bearing ash other than closing all the city’s incinerators. See id. However, following the Court’s ruling that the ash had to be disposed of as hazardous waste with the attendant extra expense, the city announced that it would keep its facilities open and would separate the lead and arsenic bearing items from the waste, creating a non-hazardous ash product. See id.
446 See Guardians Ass’n v. Civil Serv. Comm’n of NY, 463 U.S. 582, 599–602 (1983); see also Colopy, supra note 66, at 165 (stating that declaratory and injunctive relief are available once disparate impact is proven); Fisher, supra note 2, at 329 (reporting the availability of declaratory and injunctive relief upon a successful demonstration of disparate impact); Lazarus, supra note 7, at 836 (cautioning that “[u]ntil recently, it seemed fairly well settled that in the absence of a showing of discriminatory intent, equitable relief was the only remedy available to redress a Title VI violation.”); Mank, Equitable Compensation, supra note 422, at 384 (instructing that “[u]ntil recently, it appeared that Title VI provided only equitable relief . . . .”).
447 See Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b) (Supp. 1991). Plaintiffs may not bring an action solely to collect fees expended in a separate Title VI administrative action. See Colopy, supra note 66, at 166 n.194 (citing North Carolina Dep’t of Transp. v. Crest St. Council, 479 U.S. 6, 12–16 (1986). Plaintiffs additionally cannot recover fees for actions brought against the federal government because the Awards Act does not expressly waive sovereign immunity. See id. (citing Shannon v. United States, 433 F. Supp. 249, 251 (E.D. Pa. 1977)). Finally, in calculating recoverable attorney’s fees, the Supreme Court has disallowed the inclusion of experts’ fees in a Title VI suit. See Fisher, supra note 2, at 324 n.202 (citing West Virginia Univ. Hosps. v. Casey, 499 U.S. 83, 102 (1991)).
448 See Colopy, supra note 66, at 165 (asserting that Title VI plaintiffs cannot receive compensatory relief without a showing of intentional discrimination); Fisher, supra note 2, at 329 (observing that damages “seem precluded” except where intentional discrimination is found). These views seem to match those expressed by the Court in Guardians. See 463 U.S. at 612 (White & Rehnquist, JJ.); id. at 615 (O’Connor, J., concurring); id. at 608–10 (Powell, J., & Burger, C.J., concurring); see also id. at 607 n.27 (White, J.) (stating the a majority of the court “would not allow compensatory relief in the absence of proof of discriminatory intent.”); Eastman v. Virginia Polytechnic Inst., 939 F.2d 204, 206–07 (4th Cir. 1991) (stating that Guardians held that “intentional discrimination is a prerequisite to an award of any sort of ‘compensatory damages’ to a private litigant in a Title VI case.”). But see Lazarus, supra note 7, at 836 (reasoning that “it would seem fair to assume that a damages remedy is now generally available for Title VI violations, even absent a showing of discriminatory intent.”). Franklin v. Gwinnett County Public Schools inspired a period of uncertainly surrounding the availability of monetary damages for nonintentional violations of Title VI by stating that, a “clear majority [of Justices in Guardians] expressed the view that damages were available under Title VI in an action seeking remedies for an intentional violation, and no Justice challenged the traditional presumption in favor of a federal court’s power to award appropriate relief in a cognizable cause of action.” See 503 U.S. 60, 70 (1992). The broad language regarding “power to award appropriate relief” seems to have caused confusion as to whether monetary remedies are truly limited to intentional violation of Title VI. See, e.g., Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1276 n.41 (M.D. Ala. 1998).
449 See, e.g., Smith v. University of Washington Law Sch., 2 F. Supp. 2d 1324, 1337 (W.D. Wash. 1998); Ferguson v. City of Phoenix, 931 F. Supp. 688, 697 (D. Ariz. 1996), aff’d, 157 F.3d 668 (9th Cir. 1998), cert. denied, 119 S. Ct. 2049 (U.S. 1999). The district court in Ferguson cited several district court cases for its finding that “post-Franklin cases have uniformly held that compensatory damages under Title VI are available, but only for intentional violations of the act.” Id. (citing Tafoya v. Bobroff, 865 F. Supp. 742, 749 (D.N.M. 1994); Tyler v. City of Manhattan, 849 F. Supp. 1442, 1444 (D. Kan. 1994); Miller v. Spicer, 822 F. Supp. 158, 166–68 (D. Del. 1993)).
Ferguson leaves open the possibility that this limitation on monetary damages may not necessarily preclude compensation for disparate impact claims, however, if the plaintiff is able to establish that the fund recipient was aware through continuing and knowing violations that its facility siting policies evinced intentional discrimination. See Ferguson, 931 F. Supp. at 697. Ferguson does not reach a conclusion of the issue and does not address the level of proof necessary for a court to find that a policy that caused a disparate impact amounted to intentional discrimination for the purposes of the act. See id. However, the court does caution that when one applies the standard of intentional conduct under 42 U.S.C. § 1983 “the inquiry collapses into a search for evidence of . . . deliberate indifference.” Id. Therefore, it is difficult to imagine a case that could support a finding of “intentional” disparate impact, but not discriminatory treatment. Thus, monetary damages appear unavailable in disparate impact cases under Title VI.
450 Fisher, supra note 2, at 329.
451 See, e.g., Plaintiffs’ Complaint at 35–39, Chester Residents Concerned for Quality Living v. Seif, 944 F. Supp. 413 (E.D. Pa. 1996) (No. 96–3960) (requesting: (1) declaratory judgment against PADEP for violation of Title VI for operation of its waste permit application program in manner that causes a discriminatory effect; (2) rescission of the permit issued to SRS; (3) injunction against PADEP requiring a revision of its criteria for reviewing waste permit applications designed to prevent the granting of permits which have a discriminatory effect; (4) injunction against PADEP from receiving federal funds from EPA until the court approves PADEP’s revised permitting criteria; (5) a temporary restraining order staying the SRS waste facility permit; (6) additional relief as the court determines to be equitable; and (7) plaintiff’s court costs including reasonable attorney’s fees and experts’ fees). See also Fisher, supra note 2, at 329.
452 See Fisher, supra note 2, at 331.
453 See Matthews v. Kizer, No. C-90–3620-EFL (N.D. Cal. filed Dec. 20, 1990) (class action complaint, parties later changed to Matthews v. Coye).
454 Fisher, supra note 2, at 331.
455 See supra note 300; see also supra notes 126–27 and accompanying text.
456 503 U.S. 60 (1992).
457 See Colopy, supra note 66, at 165 & n.188 (discussing Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 74–75 (1992), as not allowing monetary damages for unintentional violations of Title IX in that the federal fund recipient does not have notice that it will be liable for such damages. The notice issue does not arise where nonintentional discrimination is charged.); see also supra note 448. While ruling that compensatory damages are appropriate only for intentional discrimination under Title IX, the Court in Franklin referenced two amendments to Title IX (the Civil Rights Remedies Equalization Act of 1987, 42 U.S.C. § 2000d-7 (1988) and the Civil Rights Restoration Act of 1987, 20 U.S.C. § 1687 (1988)) as indicators that Congress did not intend to limit the general rule that “federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to federal statute.” See Franklin, 503 U.S. at 71–72; see also Colopy, supra note 66, at 165–66. “Congress made no effort [in the 1986 Amendment] . . . to alter the traditional presumption in favor of any appropriate relief for violation of a federal right. We cannot say, therefore, that Congress has limited the remedies available to a complaint in a suit brought under Title IX.” Franklin, 503 U.S. at 73 (alterations in original).
458 Franklin, 503 U.S. at 70.
459 See id. at 75–76; see also Colopy, supra note 66, at 166 n.193.
460 Could an injunction requiring broad institutional restructuring mandate permitting authorities to account for factors that may be prohibitively expensive for individual plaintiffs or community groups to investigate such as community health risks and cumulative effects of facility siting? Similarly, could an injunction require increased community involvement in the permitting authority’s siting considerations, bringing an effective minority voice into the discussion regarding the distribution of necessary environmental burdens?
461 Fisher, supra note 2, at 331.
462 See id.
463 See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 935 n.15 (3d Cir. 1997) (stating that, although it is “well established that private plaintiffs do not have the authority to compel a termination of [federal] funding, we make no determination at the time as to what alternative remedies offer appropriate relief for plaintiffs who prevail in actions to enforce agency regulations brought pursuant to section 602”).