* Associate Professor of Law, Vermont Law School. I am grateful to Sheila Foster, Eileen Gauna, Shubha Ghosh, Cynthia Ho, Gil Kujovich, Susan Kuo, and Kenneth Manaster as well as the participants of the 1999 Asian American Legal Scholarship Workshop for their valuable comments and suggestions on earlier versions of this Article. Thanks go to Elizbeth Brown, Mateo Davis, Albert Huang, Theresa Labriola, Arati Tripathi and especially Michael O’Brien for legal research, as well as Laura Gillen and Judy Hilts for manuscript assistance.
1 See generally Aldon Morris, The Origins of the Civil Rights Movement 188–274 (1986).
2 Id.
3 Id.
4 Id.
5 See Rolf R. von Oppenfeld et al., The Common-Law Impetus for Advanced Control of Air Toxics, 29 Envtl. L. Rep. 10,003 (1999).
6 Id.
7 See James Salzman, Beyond the Smokestack: Environmental Protection in the Service Economy, 30 Envtl. L. Rep. 10,856 (2000).
8 See, e.g., Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 111–20, 129–32 (1993).
9 See, e.g., Dale Russakoff, As in the ’60s, Protesters Rally; But This Time The Foe Is PCB, Wash. Post, Oct. 11, 1982, at A1.
10 Commission for Racial Justice (United Church of Christ), Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites (1987) [hereinafter Commission for Racial Justice, Toxic Wastes and Race in the United States].
11 See, e.g., R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144, 1149–50 (E.D. Va. 1991); East Bibb Twiggs Neighborhood Assoc. v. Macon-Bibb County Planning & Zoning Comm., 706 F. Supp. 880, 844–87 (M.D. Ga. 1989); Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp 673, 677–81 (S.D. Tex. 1979), aff’d, 782 F.2d 1038 (5th Cir. 1986).
12 See discussion infra Part I.A.
13 Exec. Order No. 12,898, §§ 1–101, 6–609, 59 Fed. Reg. 7629 (Feb. 16, 1994).
14 See United States Enivironmental Protection Agency, Notice of Establishment of the National Environmental Justice Advisory Council and Request for Suggestions of Candidates for Membership, 58 Fed. Reg. 59,723, 59,723–801 (Nov. 10, 1993) [hereinafter EPA Notice of Establishment]; see also Richard J. Lazarus, “Environmental Racism! That’s What It Is.,” 2000 U. Ill. L. Rev. 255, 263–64 (2000) (noting the scarcity of visible responses from Congress, states, and courts to environmental justice claims). But see id. at 264–73 (claiming important and widespread but relatively invisible changes in enforcement policy, standards, public participation, and environmental profession in response to environmental justice claims).
15 See, e.g., Richard J. Lazarus, Pursuing Environmental Justice: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 806–25 (1993). Such claims have been made more generally by civil rights scholars about the lesser solicitude of government toward minority protection concerns. See, e.g., Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism 158–94 (1992). For an explanation as to why changing times and politics have made claims for racial and social justice less popular, see Derrick Bell, Brown v. Board of Education and the Interest Convergence Dilemma, 93 Harv. L. Rev. 518, 524–33 (1980) (arguing that in the 1960s, the fight against segregation served Caucasian as much as African-American interests).
16 See infra note 74 and accompanying text.
17 See Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance), 65 Fed. Reg. 39,650, 39,667–39,670 (June 27, 2000) [hereinafter Draft Title VI Recipient and Revised Investigation Guidance]; see also infra notes 130–131 and accompanying text.
18 Id.
19 Id.
20 See Letter from Luke W. Cole et al. to Carol Browner, Comments on Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Aug. 26, 2000) (on file with author) (containing comments by 125 environmental organizations and individuals), available at http://www.epa.gov/civilrights/docs/t6com2000_071.pdf (last visited Jan. 15, 2002) [hereinafter Letter from Luke W. Cole]. Public comments on the Draft Revised Guidance can be found at Comments Received on the Title VI Draft Guidance Documents, at http://www.epa.gov/civilrights/t6guidcom.htm (last visited Jan. 15, 2002) [hereinafter Public Comments on Draft Revised Guidance].
21 121 S. Ct. 1511, 1523 (2001).
22 Sandoval does not appear to foreclose all attempts by private citizens to enforce EPA’s Title VI disparate impact regulations. See id. Section 1983 suits may provide an alternative remedy that could reach many of the same violations. See 42 U.S.C. § 1983 (2000) (stating “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .); see also Sandoval, 121 S. Ct. at 1522 (Stevens, J., dissenting). But see S. Camden Citizens in Action v. New Jersey Dept. of Envtl. Protection, 274 F.3d 771 (3d Cir. 2001). See generally Bradford C. Mank, Using Section 1983 to Enforce Title VI’s Section 602 Regulations, 49 U. Kan. L. Rev. 321 (2001).
23 See Draft Title VI Recipient and Revised Investigation Guidance supra note 17, at 39,650.
24 See Tseming Yang, Melding Civil Rights and Environmentalism: Finding Environmental Justice’s Place in Environmental Regulation, 26 Harv. Envtl. L. Rev. (forthcoming 2002).
25 See, e.g., infra note 233 and accompanying text.
26 See discussion infra Part IV.
27 See discussion infra Part I.
28 See discussion infra Part I.
29 See discussion infra Part II.
30 See discussion infra Part III.
31 See discussion infra Part IV.
32 42 U.S.C. § 2000d (2000).
33 Id. § 4331.
34 See, e.g., The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, at xxix–xxxi (Michael B. Gerrard ed., 1999).
35 Scholars have pointed to the discrimination that African-Americans and other minorities faced with regard to the provisioning of municipal services during the times of Jim Crow and racial segregation laws as early examples of environmental injustice. See, e.g., Hawkins v. Town of Shaw, 437 F.2d 1286, 1288–91 (5th Cir. 1971). In posing the discrimination struggle as a fight for equal benefits from government works, they can be seen as the flip-side of the more recent environmental justice complaints regarding unequal treatment in the distribution of undesirable land uses. See 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, 1003 n.9 (1993); Lazarus, supra note 15, at 807, 833. In both instances, residential segregation provided an easy mechanism by which municipalities could limit not only the benefits of municipal services such as sanitary sewers, street lighting, and potable water supplies, but arguably also the shift of undesirable facilities, such as waste facilities and polluting industries, to minority neighborhoods. See id.
36 See Lazarus, supra note 15, at 788–89.
37 Id.
38 Id. at 789, 836–38 (noting that EPA made a conscious decision in the early 1970s to enforce anti-discrimination requirements of Title VI of the Civil Rights Act less than aggressively).
39 See, e.g., Russakoff, supra note 9, at A1. For further accounts of the history and varied perspectives of the environmental justice movement, see Confronting Environmental Racism: Voices from the Grassroots (Robert D. Bullard ed., 1993).
40 See, e.g., Christopher H. Foreman, Jr., The Promise and Peril of Environmental Justice 17–18 (1998); Russakoff, supra note 9, at A1.
41 See, e.g., Russakoff, supra note 9, at A1.
42 See, e.g., Foreman, supra note 40, at 18.
43 See, e.g., Dorceta E. Taylor, Environmentalism and the Politics of Inclusion, in Confronting Environmental Racism: Voices from the Grassroots, supra note 39, at 53, 55–56.
44 U.S. General Accounting Office, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities (1983) [hereinafter U.S. General Accounting Office, Siting of Hazardous Waste Landfills]; see, e.g., Charles Lee, Beyond Toxic Wastes and Race, in Confronting Environmental Racism: Voices from the Grassroots, supra note 39, at 41, 43.
45 U.S. General Accounting Office, Siting of Hazardous Waste Landfills, supra note 44, at 1, 3.
46 See id.
47 Commission for Racial Justice, Toxic Wastes and Race in the United States, supra note 10, at xiiixiv.
48 Marianne Lavelle & Marcia Coyle, A Special Investigation: Unequal Protection: The Racial Divide in Environmental Law, Nat’l L.J., Sept. 21, 1992, at S1.
49 Id.
50 For an overview of the studies, see, for example, Craig Anthony Arnold, Planning Milagros: Environmental Justice and Land Use Regulation, 76 Denv. U. L. Rev. 1, 1626 (1998). Of course, there has been much criticism of these studies. See, e.g., Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. L. 1, 21 (1995) (suggesting environmental racism is not a simple correlation but a complex entanglement of class, race, educational attainment, and other factors); Vicki Been & Francis Gupta, Coming to the Nuisance Or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 Ecology L.Q. 1, 3335 (1997); Michael Greenberg, Proving Environmental Inequity in Siting Locally Unwanted Land Uses, 4 RISK 235, 25052 (1993); Thomas Lambert & Christopher Boerner, Environmental Inequity: Economic Causes, Economic Solutions, 14 Yale J. on Reg. 195, 20312 (1997) (finding “no significant difference” in percentages of minority residents in areas with or without active facilities in St. Louis, MO).
51 See, e.g., Charles Jordan & Donald Snow, Diversification, Minorities, and the Mainstream Environmental Movement, in Voices from the Environmental Movement: Perspectives for a New Era 71, 75–78 (Donald Snow ed., 1992) (noting that several of the Sierra Club’s California chapters prohibited membership by racial minority individuals up until the 1950s).
52 See, e.g., id. at 78, 9094, 10001.
53 See Mark Dowie, Losing Ground: American Environmentalism at the Close of the Twentieth Century 168, 16066 (1995); see also Victoria Slind-Flor, Amid Board Rancor, Sierra Club LDF Loses 2d Black: Staff Attorney Quits and Rekindles Dispute Over Environmental Racism, NAT’L L.J., Oct. 30, 1995, at A6 (reporting that former Sierra Club Legal Defense Fund board member equated the NAACP with a “black man’s Ku Klux Klan” and described the role of an African-American woman judge as chair of the board as “interesting because in the 40 years I have worked intensely in environmental matters, I have found total disinterest among children or adults of your race in environmental matters,” and noted the total disinterest of African natives, based on their hereditary cultural views, in the environment as well as the pain and suffering of animals).
54 See, e.g., Frank Clifford, Immigration Vote Divides Sierra Club, L.A. Times, Mar. 16, 1998, at A1.
55 See id.
56 Intended as a satire in the vein of Jonathan Swift’s A Modest Proposal, Richard D. Lamm’s essay, The Heresy Trial of the Reverend Richard Lamm, 15 Envtl. L. 755 (1985), provides an excellent exposition of such attitudes.
57 Garrett Hardin, the author of the seminal article, The Tragedy of the Commons, 162 Science 1243 (1968), has been one of the most extreme proponents of deliberate selfishness in the use of limited natural resources. Thus, he advocated in the 1950s against the extension of U.S. aid to developing countries, in particular famine relief, because of his apparent belief that it would be counterproductive to solving global overpopulation. See, e.g., Shabecoff, supra note 8, at 94–96 (1993). According to Hardin:
How can we help a foreign country to escape from overpopulation? Clearly the worst thing we can do is send food . . . . Atomic bombs would be kinder. For a few moments the misery would be acute but it would soon come to an end for most of the people, leaving a few survivors to suffer thereafter.
Garrett Hardin, The Limits of Altruism: An Ecologist’s View of Survival (1977).
In more recent times, Hardin has been unabashed in his justification of discrimination as a form of “kin altruism” in which an individual seeks to benefit only those to whom he or she might be biologically related, based on the implication that individuals of the same race are more closely related biologically than between races. Garrett Hardin, Living Within Limits 230 (1993). According to Hardin, “discrimination is a necessary part of every persisting altruistic behavior.” Id.
58 See, e.g., Ruth Conniff, The War on Aliens: The Right Calls the Shots, The Progressive, Oct. 1993, at 22.
59 See Dowie, supra note 53, at 151–55.
60 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994).
61 See EPA Notice of Establishment, supra note 14.
62 See, e.g., Dowie, supra note 53, at 147, 153.
63 See, e.g., Carita Shanklin, Pathfinder: Environmental Justice, 24 Ecology L.Q. 333 (1997); Robert W. Collin, Review of the Legal Literature on Environmental Racism, Environmental Equity, and Environmental Justice, 9 J. Envtl. L. & Litig. 121 (2000).
64 See, e.g., Dana Alston & Nicole Brown, Global Threats to People of Color, in Confronting Environmental Racism: Voices from the Grassroots, supra note 39, at 179, 179–94.
65 See Antony Anghie, “The Heart of My Home”: Colonialism, Environmental Damage, and the Nauru Case, 34 Harv. Int’l L.J. 445, 44548(1993) (discussing international law consequences of destruction of the environment on the island of Nauru during guano mining).
66 See, e.g., Nuclear Tests, (N.Z. v. Fr.), 1974 I.C.J. 457 (Dec. 20, 1974) (discussing New Zealand’s suit in International Court of Justice protesting French atmospheric nuclear tests in the South Pacific at France’s Mururoa atoll); Lori Osmundsen, Paradise Preserved? The Contribution of the SPREP Convention to the Environmental Welfare of the South Pacific, 19 Ecology L.Q. 727, 76063, 77173 (1992) (discussing weaknesses of nuclear testing agreements and treaties in the South Pacific).
67 See, e.g., Robin Palmer, Land and Racial Domination in Rhodesia (1977). See generally Tseming Yang, International Environmental Protection: Human Rights and the North-South Divide, in Justice and Natural Resources 87, 94-98 (Kathryn Mutz et al. eds., 2002). Many of the parallels can be traced back to the history of colonialism and the roles that developed and developing countries played within it. In such colonial relationships, the familiar racist ideology of white European racial and cultural superiority over non-whites furnished much of the justification for the colonial system. Id. Under the mantle of the civilizing mission of the colonial powers, it was the perceived moral duty of the “civilized” European colonial powers to subjugate the non-white “savages” in order to enlighten, educate, and convert them to Christianity. See also Johnson v. M’Intosh, 21 U.S. 543, 573 (1823) (noting the justifications used by Europeans for appropriating American lands: “[t]he potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence”); see generally Ruth Gordon, Saving Failed States: Sometimes a Neocolonialist Notion, 12 Am. U.J. Int’l L. & Pol’y 903, 930–47 (1997); Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest 119–232 (1990). These beliefs provided the moral excuse for colonial powers to exploit land and resources of the non-white colonies, just as it justified conquest, slavery, and discrimination against people of color within the United States. See id.
De-colonization and independence of former colonies did not necessarily end such relationships of exploitation and inequality. See, e.g., Stephen Schlesinger & Stephen Kinzer, Bitter Fruit: The Untold Story of the American Coup in Guatemala (1982) (discussing covert U.S. intervention in Guatemala to protect plantations and lands of the Boston-based United Fruit Company (now Chiquita)); see also Osmundsen, supra note 66, at 735–38. More broadly, the consequences of colonial exploitation and inequality continue to affect global environmental problems, such as ozone depletion and global warming, where developing countries have been asked to help address what has largely been the result of past and present contributions to global environmental degradation by developed countries. David Hunter et al., International Environmental Law and Policy 569–71, 631–35 (1998).
68 In many international environmental problems, issues of equity have become of central importance. See, e.g., Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874 (enumerating principles for global environmental partnership and emphasizing that the needs of the least developed and most environmentally vulnerable countries shall be given special priority); United Nations Framework Convention on Climate Change, May 19, 1992, 31 I.L.M. 849 (stating that parties should protect the climate system for the benefit of present and future generations on the basis of equity); see generally Joyeeta Gupta, The Climate Change Convention and Developing Countries: From Conflict to Consensus? (1997) (examining the imbalance in knowledge and negotiating power between industrialized and developing countries).
69 The wealth of civil rights remedies range from the Constitution’s Equal Protection and Due Process Clauses to various civil rights statutes, such as the Civil Rights Act of 1964. The field is much too broad for a quick review here. For a general overview, see Theodore Eisenberg, Civil Rights Legislation (1996).
70 A partial explanation may be an increasingly politically conservative judiciary.
71 See, e.g., R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144, 1149–50 (E.D. Va. 1991) (finding that plaintiffs did not present sufficient evidence to meet standard of intentional discrimination); East Bibb Twiggs Neighborhood Ass’n v. Macon-Bibb County Planning & Zoning Comm., 706 F. Supp. 880, 887 (M.D. Ga. 1989) (finding in favor of defendants that location of landfill was not improperly motivated by race); Bean v. Southwestern Waste Mgmt. Corp. 482 F. Supp. 673, 681 (S.D. Tex. 1979), aff’d, 782 F.2d 1038 (5th Cir. 1986) (denying motion for preliminary injunction based on statistical evidence presented; plaintiffs failed to establish substantial likelihood of success on the merits).
72 See, e.g., Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 Fordham Urb. L.J. 523, 538–41(1994); Leslie A. Coleman, It’s the Thought That Counts: The Intent Requirement in Environmental Racism Claims, 25 St. Mary’s L.J. 447 (1993) (arguing that proof of discriminatory intent should not be the sine qua non of an equal protection challenge to environmental racism); Rachel Godsil, Remedying Environmental Racism, 90 Mich. L. Rev. 394, 409–11, 420–22 (1991).
73 Godsil, supra note 72, at 398–401; Collin, supra note 63, at 125–26; see generally Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 Envtl. L. Rep. 10,681 (2000).
74 See, e.g., Ian Haney Lopez, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 Yale L.J. 1717 (2000) (pointing to factors other than purposeful action as causes for discrimination). But see Alice Kaswan, Environmental Laws: Grist for the Equal Protection Mill, 70 U. Colo. L. Rev. 387, 390 (1999) (arguing that environmental laws can help provide evidence of discriminatory intent).
75 See, e.g., Lopez, supra note 74 (suggesting the importance of institutional processes); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 330 (1987) (stating that racism is in large part a product of the unconscious).
76 Bradford Mank, Title VI, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, supra note 34, at 23–24, 31.
77 See infra Part I.C.
78 See Cole, supra note 72, at 525, 529–30 (discussing a four-tier litigation strategy based on traditional environmental law claims, unusual environmental law claims, statutory civil rights claims, and constitutional civil rights claims).
79 Some scholars have emphasized the effectiveness of non-legal or state law strategies. See, e.g., Luke W. Cole, The Struggle of Kettleman City: Lessons for the Movement, 5 Md. J. Contemp. Legal Issues 67, 77–80 (1994) (arguing that legal approaches are the least favored approaches to solving environmental problems; in the alternative, political struggles are necessary). Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. Kan. L. Rev. 271, 300 (1992) (arguing that state law offers a wider range of possibilities for dealing with environmental race discrimination than does federal law); Naikang Tsao, Ameliorating Environmental Racism: A Citizens’ Guide to Combatting the Discriminatory Siting of Toxic Waste Dumps, 67 N.Y.U. L. Rev. 366, 379–80 (1992) (advocating that litigants explore state statutory, common law, and constitutional litigation strategies as alternatives to federal law claims).
80 See generally Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 Ecology L.Q. 1, 42–45, 86–87 (1995) (arguing that enhanced access to courts may help to correct environmental inequities).
81 See id. at 43 (suggesting that lack of financial resources may defer citizen enforcers).
82 Id. at 76–78.
83 See id. at 76–79. Moreover, the Supreme Court’s recent decision in Buckhannon Board & Care Home v. West Virginia casts further doubt on the ability of environmental citizen plaintiffs to recover attorney fees. 532 U.S. 598, 860 (2001). There, the Court found that the plaintiffs did not prevail in the law suit, and thus could not qualify for attorney fees even though the suit brought about voluntary change in defendant’s conduct. Id. Buckhannon does not conclusively answer whether a defendant may avoid attorney fees claims if defendant complies with plaintiffs’ demands prior to adjudication of the claim. Id. at 865–66.
84 See, e.g., Sheila Foster, Public Participation, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, supra note 34, at 185, 185–201, 206–09 [hereinafter Foster, Public Participation]; Sheila Foster, Race(ial) Matters: The Quest for Environmental Justice, 20 Ecology L.Q. 721, 749–52 (1993) [hereinafter Foster, Race(ial) Matters]; Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws and “Justice, 47 Am. U. L. Rev. 221, 251–52 (1995).
85 See, e.g., Foster, Public Participation, supra note 84, at 185–201, 206–09; Foster, Race(ial) Matters, supra note 84, at 749–52; Kaswan, supra note 84, at 251–52.
86 See, e.g., Foster, Public Participation, supra note 84, at 185–201, 206–09; Foster, Race(ial) Matters, supra note 84, at 749–52; Kaswan, supra note 84, at 251–52.
87 Emergency Planning and Community Right-To-Know-Act of 1986, 42 U.S.C. §§ 11,001, 11,044(a) (2000) (requiring information be made available to the public).
88 42 U.S.C. §§ 4321, 4332 (2000) (requiring that environmental impact statements and comments be made available to the public).
89 Id. §§ 4321, 11,001, 11,044(a).
90 See Kaswan, supra note 84, at 286–89 (suggesting that some environmental laws establish substantive criteria such that violation may signal a possibly discriminatory decision).
91 See Reich, supra note 79, at 297–98.
92 See, e.g., Foreman, supra note 40, at 124; Michael S. Greve, Environmental Justice or Political Opportunism, 9 St. John’s J. Legal Comment. 475, 479 (1994); J.B. Ruhl, The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, Then Competition, Then Conflict, 9 Duke Envtl. L. & Pol’y. F. 161, 185 (1999) (“Environmental justice uses equity as the theme for a narrow, single-minded focus on eliminating disproportionate impacts of environmental degradation on racial minorities at site-specific levels.”). Equally critical assertions have been that environmental justice is more about jobs, lack of political power, and tax trade offs than racial discrimination. David Schoenbrod, Environmental ‘Injustice’ Is About Politics, Not Racism, Wall St. J., Feb. 23, 1994, at A21.
93 Rev. Benjamin F. Chavis, Jr., Foreword, in Confronting Environmental Racism: Voices from the Grassroots, supra note 39, at 3. According to then-Reverend Benjamin Chavis:
Environmental racism is racial discrimination in environmental policymaking . . . in the enforcement of regulations and laws . . . in the deliberate targeting of communities of color for toxic waste facilities . . . in the official sanctioning of the life-threatening presence of poisons and pollutants in communities of color . . . [and] in the history excluding people of color from the mainstream environmental groups, decision-making boards, commissions, and regulatory bodies.
94 See generally Kuehn, supra note 73 (elaborating on corrective, distributional, procedural, and social justice aspects of environmental movement’s goals).
95 In this respect, the environmental justice movement is concerned, as is critical race theory, with discriminatory structures and institutions. See, e.g., Richard Delgado, Introduction, in Critical Race Theory: The Cutting Edge, at xiii, xiii–xv (Richard Delgado ed., 1995); Cornel West, Foreword, in Critical Race Theory: The Key Writings That Formed the Movement, at xi, xi–xii (Kimberlé Crenshaw ed., 1995).
96 Differences and disagreement about the content and scope of the concept have been typical of efforts to define and gain a better understanding of environmental justice. See generally Andrew Dobson, Justice and the Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice 1, 5–7 (1998); Been, supra note 35; Kuehn, supra note 73, at 10,683–84; Ruhl, supra note 92, at 185.
97 See Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 Ecology L.Q. 619, 639–41 (1992) (suggesting that grassroots activists are willing to explore a wider range of strategies than mainstream environmentalists); 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, 808–09 (1998) (advocating that grassroots struggles are a crucial arena for restructuring social relations in systems of localized government decision-making).
98 Foreman, supra note 40, at 123. Foreman asserts that “[e]nvironmental justice cannot yet be described as a clear, durable and primary goal for any national agency or significant interest group.” Id. at 122.
99 See id. at 3, 122–26.
100 See, e.g., Greve, supra note 92, at 479 (suggesting that while environmental justice may be powerful at the rhetorical level, it loses power at the practical level).
101 See generally Foreman, supra note 40, at 124. According to Christopher Foreman, “[b]eyond the conviction that rigorous democratic practice and accountability are essential to a just outcome,” the movement “really specifies no answer to the question of what is best for a given community.” Id.
102 Id. at 117 (arguing that environmental justice can deflect attention from serious hazards to less serious or perhaps trivial ones). In fact, one critic has stated that “[c]learly, no serious advances can be made in the attempt to pursue environmental equity until a conception of equitable distribution is crystallized.” Lynn E. Blais, Environmental Racism Reconsidered, 75 N.C. L. Rev. 75, 80 (1996).
103 Cf. Oliver Wendell Holmes, The Common Law 1 (1881) (“The life of the law has not been logic: it has been experience.”).
104 See generally Dennis Patterson, Langdell’s Legacy, 90 Nw. U. L. Rev. 196 (1995) (discussing Christopher Langdell’s contributions to the conception of and approach to law).
105 This is not to imply that activists have a proprietary interest in the meaning and the goals of environmental justice or that there is necessarily unanimous agreement among all activists on the meaning and goals of the movement–-it is an ideal that belongs to all. Nor does it mean that one cannot examine the movement critically. Yet, unless we believe that environmental justice is a sham issue–-that is, it is just window-dressing for self-interested actions–-we must first understand and accept environmental justice under the movement’s own terms in order to critique it in a meaningful fashion. To determine what it has contributed to our understanding about the role of race and class in environmental regulation, we must take the beliefs and goals of environmental justice advocates seriously.
106 42 U.S.C. §§ 2000d–2000d-7 (2000).
107 Id.
108 See Alexander v. Choate, 469 U.S. 287, 292–93 (1985) (defining the Court’s earlier two-pronged holding on the nature of the discrimination proscribed by Title VI as expressed in Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, 584, 607–08 (1983)).
109 EPA’s Title VI regulations, which require non-discrimination in programs receiving federal assistance from the EPA, provide in part:
A recipient 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 . . . . A recipient shall not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies on the grounds of race, color, or national origin or sex; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of this subpart.
40 C.F.R. §§ 7.35(b) & (c) (2001). These regulations have become especially important in the environmental regulatory context because many state and local environmental programs receive financial assistance from EPA and thus are subject to the discriminatory impact standard. See Steven Light & Kathryn Rand, Is Title VI a Magic Bullet?: Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1, 26 (1996).
110 See, e.g., James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 Stan. Envtl. L.J. 125, 180–85 (1994).
111 See, e.g., Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L. & Litig. 309, 320 (1994).
112 In fact, EPA has been excoriated for its glacial pace in processing such complaints as well as the single substantive decision it has issued. , Id. at 392–96. See generally Luke W. Cole, “Wrong on The Facts, Wrong on The Law”: Civil Rights Advocates Excoriate EPA’s Most Recent Title VI Misstep, 29 Envtl. L. Rep. 10,775 (1999); Colopy, supra note 110. Since the beginning of the Clinton Administration, 124 such complaints have been filed. U.S. EPA, Office of Civil Rights, Status Summary Table of EPA Title VI Administrative Complaints, Jan. 4, 2002, at http://www. epa.gov/ocrpage1/docs/t6stjun2000.pdf (last visited Jan. 16, 2002). Sixty-seven of them have been rejected on technical procedural grounds. Id. Only one complaint has been evaluated on the merits–the complainants lost. Id. Forty-six of the complaints continue to await resolution. Id. Yet, even these modest and tentative steps have been criticized strongly by business interests and state and local governments as simply unwarranted. See, e.g., Cindy Skrzycki, Up Against the Environmental Justice System, Wash. Post, Oct. 23, 1998, at F1.
113 See 40 C.F.R. §§ 7, 12 (2001).
114 See Cole, supra note 111, at 392–97.
115 See generally Cole, supra note 112, at 10,775.
116 U.S. Envtl. Protection Agency. EPA, Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Feb. 5, 1998), at http:// www.epa.gov/civilrights/docs/interim.pdf (last visited Jan. 16, 2002) [hereinafter Interim Guidance].
117 These steps include: (1) identification of the affected population; (2) determining the demographics of the affected population; (3) determining the universe(s) of facilities and total affected population(s); (4) conducting the disparate impact analysis; and (5) determining the significance of the disparity. See Interim Guidance, supra note 116.
118 Letter from Ann E. Goode, U.S. EPA, Office of Civil Rights, to Father Phil Schmitter, Sister Joanne Chiaverini, St. Francis Prayer Center, and Russell J. Harding, Michigan Department of Environmental Quality, re: EPA File No. 5R-98-R5 (Select Steel Complaint) (Oct. 30, 1998) (on file with author), available at http://www.epa.gov/region5/steelcvr. htm (last visited Jan. 16, 2002) [hereinafter Select Steel Complaint Letter].
119 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,650.
120 See id. at 39,655.
121 Id.
122 See id. at 39,656–64.
123 See id. at 39,668–69.
124 Under the Draft Revised Guidance, complaints must be filed within 180 days of the triggering discriminatory act, such as the issuance of a permit having discriminatory impacts. Id. at 39,672. During the pendency of a Title VI complaint, however, a contested permit remains in effect. Id. at 39,676.
125 All throughout the complaint process, EPA also encourages the informal settlement of complaints, including through alternative dispute resolution processes. Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,673.
126 Id. at 39,676–82.
127 Id.
128 The Draft Revised Guidance expands a five-step disparate impact analysis to a six-step process by including and expanding on one criterion that was previously already part of the Interim Guidance generally, but not as a specific impact analysis step. Compare Interim Guidance, supra note 116, at 7, with Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,677.
129 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,676–77.
130 Id. at 39,677.
131 According to the Draft Revised Guidance, stressors are “[g]enerally, any substance introduced into the environment that adversely affects the health of humans, animals, or ecosystems.” Id.
132 Id. at 39,675–76. In area-specific agreements, recipients enter into agreements with affected residents and local stakeholders to proactively address pollution burdens in geographic areas where adverse disparate impacts may already exist. Id. But for EPA to extend deference to such agreements, such that they will affect its investigation of the complaint, the area-specific agreement must be supported by adequate Title VI analyses and be expected to result, within a reasonable time, in actual reductions or the elimination of Title VI cognizable impacts. See id.
133 Id. at 39,677–79.
134 Id. at 39,679–80.
135 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,679.
136 Id. at 39,679–80.
137 Id. at 39,680–81.
138 Id.
139 The Guidance is explicit in stating that compliance with national ambient air quality standards (NAAQS) presumptively satisfies the mandates of Title VI. Id. at 38,680–81. Likewise, where a permit action “clearly leads to a significant decrease in adverse disparate impacts,” even if other emissions increase, such conditions are considered in the remedial actions proposed by EPA. Id. at 39,681.
140 See infra notes 147–150 and accompanying text.
141 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,681.
142 Id.
143 Id.
144 Id. 39,681–82.
145 Id. at 39,682.
146 Id.
147 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,682.
148 Id.
149 Id. at 39,675.
150 See id. at 39,674.
151 See id.
152 Id. at 39,675.
153 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,675.
154 See id. at 39,683–84.
155 Id. at 39,683.
156 Id.
157 Id.
158 Id.
159 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,683. A less discriminatory alternative constitutes an “approach that causes less disparate impact than the challenged practice, but is practicable and comparably effective in meeting the needs addressed by the challenged practice.” Id.
160 Id.
161 Id.
162 Id. at 39,684. Under Title VI, EPA may also refer a finding of non-compliance to the Department of Justice for judicial enforcement. 40 C.F.R. § 7.130(a).
163 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,683–84.
164 Id. at 39,651.
165 See Bradford C. Mank, The Draft Title VI Recipient and Revised Investigation Guidances: Too Much Discretion for EPA and a More Difficult Standard for Complainants?, 30 Envtl. L. Rep. 11,144 (2000).
166 See id.
167 See, e.g., Letter from Luke Cole, supra note 20; Public Comments on Draft Revised Guidance, supra note 20.
168 See Yang, supra note 24, at 20–22.
169 See U.S. Envtl. Protection Agency, Environmental Justice, at http://es.epa. gov/oeca/main/ej/index.html (last visited Jan. 16, 2002).
170 Civil rights law is not devoid of administrative agencies. For instance, the Equal Employment Opportunity Commission (EEOC) or the Department of Housing and Urban Development (HUD) are important actors in the implementation of anti-discrimination law. Yet, rather than dominating the legal landscape, as EPA does in environmental law, administrative agencies play rather minor roles in civil rights law compared to the courts in shaping the substantive legal rules. See infra note 317 and accompanying text.
171 See, e.g., Clean Air Act, 42 U.S.C. §§ 7601–7671q (2000); CERCLA, 42 U.S.C. §§ 9601–9708; Fair Housing Act, 42 U.S.C. §§ 3601–3619; Civil Rights Acts, 42 U.S.C. §§ 1981–2000h-6.
172 See infra notes 305–321 and accompanying text. Discrimination suits seeking structural reform of institutions, such as school desegregation litigation, have pushed the courts outside of their traditional bipolar adjudicative modes. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976); see Peter A. Appel, Intervention in Public Law Litigation: The Environmental Paradigm, 78 Wash. U. L.Q. 215, 215 (2000). Yet, such instances remain the exception and are notable precisely because of their exceptional nature.
173 See, e.g., Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 61–64, 67–69 (1990) [hereinafter Sunstein, After the Rights Revolution]. See generally Cass R. Sunstein, Using Common Law Principles in Regulatory Schemes (With a Note on Victimology), 19 Harv. J.L. & Pub. Pol’y 651 (1996) [hereinafter Sunstein, Using Common Law Principles in Regulatory Schemes].
174 In fact, several scholars have sought to revive interest in the common law as a means of solving environmental problems. See generally The Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law, at xi–24 (Roger E. Meiners & Andrew P. Morriss eds., 2000).
175 Holmes, supra note 103, at 35–36.
176 See Andrew McFee Thompson, Free Market Environmentalism and the Common Law: Confusion, Nostalgia, and Inconsistency, 45 Emory L.J. 1329, 1371 (1996) (stating that common law “functions as a meaningful supplement to statutory law”).
177 Lon L. Fuller, Anatomy of the Law 102 (1968).
178 Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 357 (1978) (“[F]undamentally, . . . adjudication should be viewed as a form of social ordering, as a way in which the relations of men to one another are governed and regulated [because] . . . an adjudicative determination will normally enter in some degree into the litigants’ future relations and into the future relations of other parties who see themselves as possible litigants before the same tribunal.”). See Benjamin N. Cardozo, The Nature of the Judicial Process 16, 20–21, 66, 98–141 (1949) (stating that an important task of the judiciary is “the filling of the gaps which are found in every positive law in greater or less measure[, which] you may call . . . legislation, if you will”); Fuller, supra note 177, at 84–103.
179 Another important disjunction between the conceptions of environmental justice advocates and regulators about the role of public participation in regulation has been discussed elsewhere by Eileen Gauna. See generally Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 Stan. Envtl. L.J. 3 (1998) (arguing that communities bearing the most environmental risk participate in the administrative process the least).
180 See Gregory Daniel Page, Lucas v. South Carolina Coastal Council and Justice Scalia’s Primer on Property Rights: Advancing New Democratic Traditions by Defending the Tradition of Property, 24 Wm. & Mary Envtl. L. & Pol’y Rev. 161, 209 (2000).
181 See generally Mark Sagoff, Economic Theory and Environmental Law, 79 Mich. L. Rev. 1393 (1981).
182 Hardin, supra note 57.
183 See id.
184 See generally Yang, supra note 24.
185 See Sagoff, supra note 181, at 1398–99.
186 See id.
187 Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, allows private individuals to seek recovery of costs expended in cleaning up a hazardous waste site. 42 U.S.C. § 9607(a)(2)(B) (2000). Such costs cover only “necessary costs of response.” Id. Personal injury or other private damages are not included. See id. The Oil Pollution Act of 1990, is the lone exception in allowing for recovery of property and other economic damages. See Oil Pollution Act § 1002(b)(2), 33 U.S.C. § 2702(b)(2) (2000). It does not allow for personal injury damages. See id.
188 See, e.g., Meghrig v. KFC Western, Inc., 516 U.S. 479, 484–88 (1996) (holding that the citizen-suit provision under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972, does not allow recovery for the costs of cleanup); Gauna, supra note 80, at 39–43 (noting that citizen-suit provisions “grant citizens the ability . . . to sue on behalf of the community at large, rather than to vindicate individual rights”).
189 See Gauna, supra note 179.
190 See id. It is tempting to compare citizen-suit provisions with private causes of actions that are found throughout federal statutes, including the civil rights statutes. Yet, such a comparison would be misleading. While injunctive relief as well as penalties may be obtained against the defendant, the very characteristic of private causes of action in the law, monetary damages or some other private benefit, is generally not provided for. The lack of monetary damages may be a source of significant constitutional standing difficulties for citizen-suit plaintiffs. See Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 232 (1992) (arguing that allowing successful citizen-suit plaintiffs to recover cash bounties would give them a concrete interest and therefore standing as well).
191 See United States v. Smithfield Foods, Inc., 982 F. Supp. 373, 374 (1997). Courts and EPA have sought to make innovative use of supplemental environmental projects (SEPs), projects in which the defendant engages in environmentally beneficial activity as a form of injunctive relief, avoiding penalty payments swallowed up in the black hole of the Federal Treasury. A quid pro quo reduction of penalties for SEPs is prohibited. See id.
192 See, e.g., Federal Water Pollution Control Act § 505(c)(3), 33 U.S.C. § 1365(c)(3) (2000) (“No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.”).
193 E.g., National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(C) (2000).
194 E.g., Emergency Planning and Community Right-to-know Act (EPCRA), 42 U.S.C. § 11044 (2000).
195 See Sagoff, supra note 181, at 1414.
196 See Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 35 (1979).
197 See id.; see also Joshua Yount, The Rule of Lenity and Environmental Crime, 1997 U. Chi. Legal. F. 607, conclusion.
198 See generally Fred Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 Chi.-Kent L. Rev. 847, 863–69 (1994). See also Rachel Carson, Silent Spring (1962).
199 See generally Bosselman & Tarlock, supra note 198, at 863–69.
200 See generally James M. Landis, The Administrative Process 30–40 (1938); Sunstein, After the Rights Revolution, supra note 173, at 11–73; Jerry L. Mashaw et al., Administrative Law: The American Public Law System 5–7 (4th ed. 1998).
201 See United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n.4 (1938).
202 See, e.g., Eisenberg, supra note 69.
203 For example, both the EEOC and HUD have responsibility only for oversight and enforcement against employment discrimination and housing discrimination, respectively. Furthermore, the EEOC does not have the “authority to promulgate rules or regulations pursuant to” Title VII. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976). Its scope of authority, even within the limited realm of employment discrimination law that it does administer, is thus drastically narrower than that of EPA. Likewise, until the Fair Housing Amendments Act of 1988, HUD did not have the authority to bring general enforcement actions, nor address housing discrimination complaints through administrative adjudicatory actions. While the 1988 Amendments changed that, Pub. L. No. 100–430, 102 Stat. 1619 (codified as amended at 42 U.S.C. §§ 3601–3619, 3631 (1988)), HUD’s authority within the housing discrimination laws remains substantially less than that of EPA within the environmental laws. See generally U.S. Commission on Civil Rights, The Fair Housing Amendments Act of 1988: The Enforcement Report 8–24 (1994).
204 At the same time, since the interests protected by civil rights laws have their roots and origins in the Constitution, the Supreme Court’s influence has remained inordinately great. While its common law approach to case-by-case interpretation and elaboration of the law arguably governs only constitutional mandates, this approach appears to have naturally carried over to congressionally granted anti-discrimination rights. See generally Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4 (1982) (arguing that the Burger Court has sough t to fit issues concerning standing, class actions, and remedial discretion into the notions of traditional lawsuits); Henry P. Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996) (interpreting constitutional law-making as common law); Kathleen M. Sullivan, Sins of Discrimination: Last Term’s Affirmative Action Cases, 100 Harv. L. Rev. 78 (1986) (addressing the requirement of a culpable party).
205 See generally Yang, supra note 24.
206 See generally id.
207 See Bell, supra note 15, at 158–94 (arguing through fictional account that society would be willing to trade the interests of racial minorities for the good of society, such as for a clean environment).
208 Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1760–90 (1975).
209 Id. at 1713–15.
210 See id. at 1714.
211 Id. at 1682–88, 1713–15.
212 Id. at 1787–88.
213 Id.
214 Stewart, supra note 208, at 1787–88.
215 See generally Tseming Yang, Balancing Interests and Maximizing Rights in Environmental Justice, 23 Vt. L. Rev. 529 (1999).
216 Without substantive change, majoritarian-oriented administrative processes will simply perpetuate pre-existing inequalities. See Foster, supra note 97, at 826–41.
217 See, e.g., Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. Ill. L. Rev. 103 (1996); Richard Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 Colum. L. Rev. 941 (1999).
218 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,672.
219 Id.
220 See id. at 39,671–72.
221 Id.
222 Id.
223 EPA is not unique as an agency in utilizing this investigative approach to ensure compliance with Title VI responsibilities. See 28 C.F.R. §§ 42.101–.112 (2001) (setting out Department of Justice regulations under Title VI). Yet, the approach is in many respects a departure from how EPA deals with administrative appeal rights in other contexts, which are arguably more appropriate models. For example, environmentalists and private citizens who raise concerns about EPA approval of pollution generating activities, as in the context of permitting decisions, may appeal if the administrative decision is adverse to them. See, e.g., 40 C.F.R. §  124.19 (2001) (“[A]ny person who filed comments on [a] draft permit [regarding RCRA, Underground Injection Control (UIC), National Pollutant Discharge Elimination System (NPDES), or Prevention of Significant Deterioration (PSD)] or participated in the public hearing may petition the Environmental Appeals Board to review any condition of the permit decision.”).
224 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,673–74.
225 See id.
226 See Letter from Luke W. Cole, supra note 20, and text accompanying notes 18–22; see also Eric K. Yamamoto, ADR: Where Have the Critics Gone?, 36 Santa Clara L. Rev. 1055, 1058–60 (1996) (stating that Alternative Dispute Resolution perpetuates and amplifies inherent inequalities in bargaining positions).
227 Prior to the Clinton Administration, EPA simply ignored or avoided addressing the relevance of social justice and equity concerns in its regulatory work. See Dowie, supra note 53, at 155–57; Gauna, supra note 80, at 18–19 & nn.59–61. For EPA to implement measures, which have been taken by other agencies many years earlier, is troubling in light of its poor track record with environmental discrimination issues until recently.
228 See Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 Md. L. Rev. 1141, 1161, 1174–75 (1995). Of course, the federal government sets minimum standards; see also Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570 (1996); Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341, 2342–43 (1996) (describing “interstate externalities” as a primary reason for environmental regulation at the federal level).
229 Clean Water Act, 33 U.S.C. § 1251 (2000); Clean Air Act, 42 U.S.C. § 7410 (2000); see also William Rodgers, Jr., Environmental Law 196–210 (2d ed. 1994).
230 See generally The Common Law and the Environment, supra note 174. In regard to natural resources management, the states continue to retain their primary regulatory role, though the federal government’s role has expanded considerably through acts such as the Endangered Species Act. See 43 C.F.R. § 24.3 (2001) (setting out Fish and Wildlife Service’s general relationship to the states).
231 See Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1199–1201 (1977).
232 See id.
233 See, e.g., id.; see also Richard Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 Law & Contemp. Probs. 311 (1991). Certainly, there are aspects of environmental protection where federal government agencies may be at an advantage over state and local governments. Technical expertise or the availability of agency resources are some of those advantages. At a minimum, however, the capabilities of local and state governments as well as their responsiveness to citizens means that they have a legitimate and important role in environmental protection alongside the federal government.
234 Built upon this rationale and history, Congress received special powers through Section Five of the Fourteenth Amendment to enforce its provisions, while limiting the power of the states to act in race matters. See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 255 (1995) (Stevens, J., dissenting) (“It represents our nation’s consensus, achieved after hard experience through our sorry history of race relations, that the Federal Government must be the primary defender of racial minorities against the States, some of which may be inclined to oppress such minorities.”); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (stating the “[t]he Civil War Amendments . . . worked a dramatic change in the balance between congressional and state power over matters of race . . . . ‘They were intended to be . . . limitations of the powers of the States and enlargements of the power of Congress.’”) (citations omitted).
235 This reason for intervention is thus quite different from that prompting federal involvement in environmental issues. Rather than being triggered by the inability of states to overcome their collective action problems, federal involvement in civil rights protections was necessitated by the complicity and active misdeeds of state governments.
236 See, e.g., 42 U.S.C. § 3610(f) (2000) (identifying the referral process to state and local agencies).
237 See, e.g., Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93–94 (1945).
238 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 522–23 (1989) (Scalia, J., concurring) (quoting The Federalist No. 10, at 82–84 (C. Rossiter ed., 1961) (citations and quotations omitted)). This applies not only to discrimination against racial minorities but also to the burdens that other disenfranchised groups, such as the poor, face more generally. See, e.g., Robert W. Collin & William Harris, Sr., Race and Waste in Two Virginia Communities, in Confronting Environmental Racism: Voices from the Grassroots, supra note 39, at 93; Foster, supra note 97, at 808–09.
239 See EPA Civil Rights Policy Will Not Defer to State Equity Programs, Inside EPA Weekly Report, Apr. 21, 2000, at 19–20.
240 See National Advisory Council for Environmental Policy and Technology, Report of the Title VI Implementation Advisory Committee: Next Steps for EPA, State, and Local Environmental Justice Programs 26–29 (1999), available at http:// www.epa.gov/ocrpage1/t6faca.htm (last visited Jan. 14, 2002); Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,674–75 nn.105–06 (“Under the Civil Rights Act of 1964, EPA is charged with assuring compliance with Title VI and cannot delegate its responsibility to enforce Title VI to its recipients. Therefore, [EPA] cannot grant a recipient’s request that EPA defer to a recipient’s own assessment that it has not violated Title VI or EPA’s regulations or that EPA rely on an assertion that a Title VI program has been followed.”).
241 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17 at 39,674–76.
242 See id.
243 Id. at 39,678.
244 See id.
245 See id.
246 See id.
247 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17 at 39,678.
248 Arguably, under such a deferential view of state authority, state law could simply specify that environmental decisions cannot consider disparate impacts, whether racial or otherwise. This would of course run directly counter to the broad purposes and reach of Title VI, and it seems unlikely that states could insulate themselves from the reach of Title VI in such a fashion. It also points out, however, how untenable such a view of Title VI is. See Letter from Lawyers’ Committee for Civil Rights Under Law to Carol Browner, Administrator, EPA 18–25 (Aug. 28, 2000) (on file with author), available at http://www.epa.gov/ civilrights/docs/t6com2000_060.pdf (last visited Jan. 14, 2002) [hereinafter Letter from Lawyers’ Committee]; see, e.g., Gardner v. Alabama, 385 F.2d 804, 815 (1967) (requiring active efforts by states to ensure non-discrimination within their programs).
249 See Landis, supra note 200, at 38.
250 See generally id. at 30–40.
251 See id. at 30–31.
252 See generally id.
253 See Fed. R. Evid. 706.
254 See supra notes 202–218 and accompanying text.
255 See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–71 (1977); Washington v. Davis, 426 U.S. 229, 240–41 (1976).
256 See Arlington Heights, 429 U.S. at 264–71; Davis, 426 U.S. at 240–41.
257 Disparate impact provisions, such as those under Title VII and Title VI, have sought to change such premises. See 42 U.S.C. §§ 2000d–2000d-7 (2000); see also supra notes 114–123, 203 and accompanying text.
258 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252–53 (1964); id. at 291–93 (Goldberg, J., concurring).
259 See id.
260 347 U.S. 483, 493, 495 (1954)(“[T]he physical facilities and other ‘tangible’ factors may be equal, . . . [but s]eparate educational facilities are inherently unequal.”); Heart of Atlanta Motel, Inc., 379 U.S. at 291 (Goldberg, J., concurring) (“[P]rimary purpose . . . [of civil rights law] is the vindication of human dignity and not mere economics.”).
261 See, e.g., Clean Water Act § 302(d), 33 U.S.C. § 1312(d) (2000); Clean Air Act §§ 108(a)(2), 112(d) (2000), 42 U.S.C. §§ 7408(a)(2), 7412(d) (2000).
262 See, e.g., Clean Water Act § 302(d), 33 U.S.C. § 1312(d); Clean Air Act §§ 108(a)(2), 112(d), 42 U.S.C. §§ 7408(a)(2), 7412(d).
263 Federal Insecticide, Fungicide, and Rodenticide Act §§ 2(bb), 3(c)(5), 7 U.S.C. §§ 136(bb), 136a(c)(5) (2000).
264 See Percival, supra note 228, at 1161. The trend has been toward more comprehensive approaches to environmental protection. See, e.g., Rodgers, supra note 229, at 54–58, 59–60; Lakshman Guruswamy, Integrating Thoughtways: Re-Opening of the Environmental Mind?, 1989 Wis. L. Rev. 463, 508 (1989); see generally J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law, 34 Hous. L. Rev. 933 (1997). Of course, these regulatory systems designed to protect the water and the air are not perfect. In fact, a significant amount of pollutants escapes the current regulatory scheme. For instance, non-point pollution sources, such as agricultural run-off, are not covered by existing Clean Water Act regulations.
In the natural resource protection context, such imperfect regulation has evidenced itself through the move toward habitat conservation in protecting endangered species and other biological resources. See generally U.S. Fish and Wildlife Serv. & National Marine Fisheries Serv., Habitat Conservation Planning Handbook (1996). For a critical review of the government’s approach toward habitat conservation, see generally Patrick Parenteau, Rearranging the Deck Chairs: Endangered Species Act Reforms in an Era of Mass Extinction, 22 Wm. & Mary Envtl. L. & Pol’y Rev. 227 (1998).
265 See, e.g., Mark Sagoff, The Principles of Federal Pollution Control Law, 71 Minn. L. Rev. 19, 55–90 (1986).
266 See, e.g., Clean Water Act § 309(d), (g)(3), 33 U.S.C. § 1319(d), (g)(3) (2000) (recovering economic benefit of violation); Clean Air Act Amendments of 1990, Title IV, 42 U.S.C. § 7651n (2000).
267 See, e.g., 33 U.S.C. §§ 1311 (technology standard), 1342; 42 U.S.C. §§ 7661a , 7475.
268 See, e.g., 33 U.S.C. § 1313; 42 U.S.C. § 7470.
269 See generally Sagoff, supra note 265. There have, of course, been critics arguing that the environmental regulatory system is not paying enough attention to economic efficiency. See generally Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 Stan. L. Rev. 1333 (1985). Others, however, have criticized environmental policy as relying too heavily on utilitarian considerations. See, e.g., Sagoff, supra note 181, at 1410–18.
In contrast, European approaches to environmental degradation have largely been guided by a Kantian perspective that sees the “solution to pollution [as] moral conduct (cease pollution) rather than . . . as a market failure to be corrected by market pragmatism.” Jonathan Baert Wiener, Center for the Study of American Business, Policy Study Number 143, Designing Global Climate Policy: Efficient Markets Versus Political Markets 34 (1997). Commentators have noted the contribution of the environmental regulatory process toward the development of domestic civic republican virtue by promoting the articulation and building of public values. See, e.g., Jonathan Poisner, A Civic Republican Perspective on the National Environmental Policy Act’s Process for Citizen Participation, 26 Envtl. L. 53, 55 (1996) (discussing whether NEPA encourages the “deliberative ideal”); Zygmunt J.B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Force Dynamics in a Time of Counter-Revolution, 23 B.C. Envtl. Aff. L. Rev. 733, 734–42 (1996).
270 Especially with regard to scientific considerations, there are always new questions. We will likely never know all there is to know and be able to quantify things with the exactitude that critics calling for “sound science” would like ideally. See Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579, 589–90 (1993) (“It would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably there are no certainties in science.”). That is, of course, not to deny the importance of scientific inquiry in addressing environmental problems. But scientific inquiry is an ongoing process that is never finished. Id.
Reliance on sound science has affected environmental regulatory thinking so much that the environmentalist’s weapon in prompting regulatory action-—scientific proof of a link between a pollutant or some human influence and an environmentally harmful effect—-has been turned into an excuse to delay or avoid governmental intervention when clear proof of and quantifiable data about environmental or human health harms has not been found yet. The call for “sound science” has frequently become a means of avoiding what is currently considered politically unpopular—-outright opposition to environmental regulation because of profit motives. Opposition of the biotechnology industry to regulation of genetically engineered plants and foods, and the belittling of concerns about the potential human health and environmental risks of their widespread use because of a lack of specific scientific evidence arguably falls within this pattern. See Jack Kemp, Be Not Afraid, Use Genetics to Feed the World’s Hungry; Agriculture: If We Don’t Use Science to Farm More Intelligently, We Put People and Ecosystems at Risk, L.A. Times, Dec. 3, 1999, at B9; Marian Burros, Dual Role of Promoting Industry and Informing Puts U.S. Departments in a Bind, Chi. Trib., July 5, 2000, at 3; see also Peter Huber, Gallileo’s Revenge: Junk Science in the Courtroom 92–106, 148–69, 214–28 (1991).
271 See, e.g., Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and “Fine-tuning” Regulatory Reforms, 37 Stan. L. Rev. 1267, 1328–32 (1985); Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 Colum. L. Rev. 562, 616–33 (1992) (arguing that risk analysis is a poor substitute for necessary moral judgments about the environment).
272 See Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1358–68 (1971).
273 See generally Huber, supra note 270.
274 See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 217–31, 235–39 (1995) (finding that all racial classifications, even for those created for benign reasons, are subject to strict scrutiny).
275 See, e.g., R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144, 1149 (E.D. Va. 1991).
276 Some commentators have argued that such benefits do in fact accrue to the affected minority community or the poor. See, e.g., Marie A. Kirk & Christine L. Wade, A Taxing Problem for Environmental Justice: The Tax Money from Hazardous Waste Facilities, Where It Goes, and What It Means, 16 Stan. Envtl. L.J. 201, 202–03, 235–44 (1997).
277 See R.I.S.E., Inc., 768 F. Supp. at 1147 (raising concerns about noise, dust, odor, decline in property values, interference with religious and social activities, increased traffic and construction activities, and the blighting of a historic church and community).
278 Of course, environmental regulation has resorted to economic and scientific analysis only because, as a methodology for evaluating competing interests, it appears to be superior to other mechanisms. Its goal has been to allow us to make hard and difficult decisions in a more systematic and consistent fashion. Further, part of the task of effective environmental regulation is to continue to search for better ways to incorporate those factors that are currently not adequately considered in the analytical methodology.
Yet, many intangibles and incommensurables are simply not analyzable in a quantitative analytical framework—attempting to put uncertainty or equality into analytical quantities is meaningless in the end. The hard reality remains that environmental law has paid insufficient attention to values and considerations that have been of tremendous importance in just about every other area of law and public policy—intangible and incommensurable considerations that may not have a direct relevance to purely environmental concerns.
279 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,676–82. For example, whether there is a disparate impact for Title VI is determined by reference to statistical significance of “at least 2 to 3 standard deviations” of the disparity. Id. at 39,682. Disparity findings are most likely to occur where “significant disparity is clearly evident in multiple measures of both risk or measure of adverse impact, and demographic characteristics.” Id. But see Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 311 n.17 (1977) (refusing to apply specific standard deviation threshold to judge disparity); 29 C.F.R. 1607.4(D) (2001) (utilizing the 4/5 standard for disparate employment discrimination).
280 See Kenneth J. Warren, Evidentiary Issues: Proving Intent and Effect and Defining the Affected Community, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, supra note 34, at 397, 401–12.
281 See id. at 419–21.
282 See, e.g., James A. Henderson, Jr. et al, The Torts Process 110–15 (5th ed. 1999).
283 See Warren, supra note 280.
284 Id.
285 But see Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (finding an overwhelming statistical disparity as sufficient evidence to show discriminatory intent against Chinese laundry owners).
286 In fact, even if disparate impact is shown in a claim under EPA’s disparate impact regulations per Title VI of the Civil Rights Act, a defendant may still avert liability by providing a justification for such discriminatory impacts. See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,683.
287 See Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 Yale L.J. 1383, 1392–1406 (1994).
288 Laurence H. Tribe, Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality, 46 S. Cal. L. Rev. 617, 626 (1973).
289 Id. at 627.
290 Id. (emphasis omitted).
291 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,679.
292 Id. The expectation that EPA will focus on quantifiable considerations is clear in how EPA views impacts that will rise to a finding of non-compliance with EPA’s Title VI regulations. Unless an impact “is significantly adverse, [it] is not expected” to lead to a finding of non-compliance. Id. at 39,680. The guidance’s glossary also defines “significant” as an “observed value [that] is sufficiently large and meaningful to warrant some action.” Id. at 39,684–88 app. A. (stating that a statistical significance is “an inference that there is a low probability that the observed difference in measured or estimated quantities is due to variability in the measurement technique, rather than due to an actual difference in the quantities themselves”).
293 For example, in the Select Steel decision EPA based its finding of no disparate impact with regard to a state agency’s failure to impose continuous emissions monitoring of dioxin because of the lack of applicable EPA performance specifications. See Select Steel Complaint Letter, supra note 118; see also Letter from Lawyers’ Committee, supra note 248.
294 Tribe, supra note 272.
295 Id. at 1361.
296 Of course, quantitative analysis, especially statistical analysis, has been used in other discrimination contexts, such as employment. See Griggs v. Duke Power Co. 401 U.S. 424, 426, 430 n.6 (1971). See generally Abigail Cooley Modjeska, Employment Discrimination Law § 1.13 (3d ed. 2000). Judicial evaluation of incommensurables, however, arguably results in much more careful and deliberate consideration of such concerns than administrative agency weighing.
297 See, e.g., Pollution Prevention Policy Statement, 54 Fed. Reg. 3845, 3847 (Jan. 26, 1989) (“EPA believes that the development of a comprehensive multi-media pollution prevention policy offers enormous promise for improvements in human health protection and environmental quality.”); Pollution Prevention Strategy, 56 Fed. Reg. 7849 (Feb. 26, 1991); Rodgers, supra note 229, at 59–60.
298 See, e.g., Clean Air Act, 42 U.S.C. § 7401 et seq (2000); RCRA, 42 U.S.C. § 1621 et seq (2000); see also City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331 (1994) (RCRA instituted “a comprehensive environmental statute that empowers EPA to regulate hazardous wastes from cradle to grave.”).
299 See, e.g., Richard E. Benedick, Ozone Diplomacy: New Directions in Safeguarding the Planet 68–97 (1998); see also Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 26 I.L.M. 1529 (entered into force Sept. 22, 1988); Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550 (entered into force Jan. 1, 1989).
300 See, e.g., National Environmental Education Act, 20 U.S.C. §§ 5501–5510 (2000) (establishing the office of environmental education in EPA and providing for environmental education grants, training, and education); see also EPCRA, 42 U.S.C. §§ 11001, 11044(a) (1986) (toxic release inventory); U.S. EPA, Office of Environmental Education, Explorers’ Club, at http://www.epa.gov/kids (last visited Jan. 16, 2002).
301 As John Landis described it, agencies are given “authority . . . [and] an assemblage of rights normally exercisable by government as a whole” in order to fulfill their missions. Landis, supra note 200, at 15. Administrative agency authority is thus usually comprehensively delegated by the legislature. See id.
302 See supra notes 74–75 and accompanying text.
303 See Laurence H. Tribe, American Constitutional Law §§ 3-4, 3-6, 8-7, 15-3 (3d ed. 2001).
304 See Cardozo, supra note 178, at 113–30.
305 See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”).
306 See Washington v. Davis, 426 U.S. 229, 242 (1976) (finding evidence of discriminatory impact insufficient for equal protection violation); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
307 Brown v. Bd. of Educ., 347 U.S. 483, 491–92, 494 (1954) (focusing on public education and the notion that “education is perhaps the most important function of state and local governments”). Even when the Court has found the reach of the equal protection clause to cover private institutions, including private schools, there has been a nexus to some form of public support, such as financial and other material support from the states. See Norwood v. Harrison, 413 U.S. 455, 464–66 (1973) (providing free textbooks to racially discriminating private schools is impermissible); Gilmore v. Montgomery, 417 U.S. 556, 566–69 (1973) (providing free use of public recreational facilities by discriminating private schools is impermissible); Bob Jones Univ. v. United States, 461 U.S. 574, 577–97 (1982) (finding that government’s interest in preventing discriminatory practices by organizations seeking tax-exempt status prevailed over free exercise rights); see also Heart of Atlanta Motel v. United States, 379 U.S. 241, 268–69 (1964) (Black, J., concurring) (stating that public accommodation provisions of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (2000), prohibited discrimination by a motel even though they sought to compel “privately owned businesses to serve customers whom they did not want to serve”).
308 See U.S. Const. amend. XIV.
309 See 42 U.S.C. §§ 2000a (public accommodations), 2000c (public education), 2000d (federally assisted programs), 2000e (employment), 3604 (housing). The description of some of these congressional acts, such as public accommodations, public education, or federally (and thus publicly) assisted programs, indicates clearly that, on their face, the protections apply only to activities in the public realm. Employment discrimination prohibitions apply to commercial acts that are commonly seen as dealing with the public. Id. § 2000e. Even then, they apply only to employers having employees or more. Id. § 2000e(b). Housing discrimination prohibitions, even though promulgated under the authority of the Thirteenth Amendment and thus able to reach private discrimination, do not apply, as a matter of congressional choice, to a “single-family house sold or rented by an owner” or “rooms or units in dwellings . . . occupied . . . by no more than four families . . . if the owner . . . occupies one of [the] living quarters as his residence.” Id. § 3603(b). However, that exemption is lost if such racially discriminatory housing is commercially advertised. Id. § 3604(c); see also United States v. Hunter, 459 F.2d 205, 213–15 (4th Cir. 1972).
310 Of course, civil rights law is not exclusively concerned with public forms of discrimination. See, e.g., 42 U.S.C. §§ 1981, 1982; see also The Civil Rights Cases, 109 U.S. 3, 23 (1883) (stating that “[u]nder the thirteenth amendment . . . legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not . . . .”). But see Runyon v. McCrary, 427 U.S. 160, 188–89 (1976) (Powell, J., concurring) (suggesting that “choices . . . that . . . are not part of a commercial relationship offered generally or widely, and that reflect the selectivity exercised by an individual entering into a personal relationship, certainly were never intended to be restricted by the 19th [C]entury Civil Rights Acts.”).
Fundamentally, the public/private distinction in statutory anti-discrimination law simply respects the limitations that government should observe in reaching into the private affairs of its citizens. Within civil rights law, it recognizes that there are important values competing with anti-discrimination and equality for legal validation. The constitutional provisions that set out protections for free speech, religious free exercise, and other values make this clear. U.S. Const. amend. I. For more detailed discussions on the public/private distinction, see Robert H. Mnookin, The Public/Private Dichotomy: Political Disagreement and Academic Reputation, 130 U. Pa. L. Rev. 1429 (1982), quoting Justice Marshall’s concurrence in PruneYard Shopping Center v. Robbins, 447 U.S. 74, 93 (1980), and Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. Pa. L. Rev. 1423 (1982). See also Symposium, The Public/Private Distinction, 130 U. Pa. L. Rev. 1289 (1982); Symposium, The State Action Doctrine, 10 Const. Comm. 309 (1993).
311 For example, in school desegregation, remedies such as busing could only cover the students within a school district that had engaged in discriminatory actions. Larger patterns of segregation not directly caused by governmental action, but the result of associated “white flight,” could not be redressed by the courts regardless of their exacerbating effects. Milliken v. Bradley, 418 U.S. 717, 801–02 (1974) (Marshall, J., dissenting).
312 Id. at 739–46.
313 See id.; see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (finding that societal discrimination is insufficient for the government to remedy use of racial classifications); Swann v. Mecklenburg, 402 U.S. 1, 16 (1971) (stating that a constitutional violation is a relevant measure of the courts’ remedial authority); Most lawyers would find this quite unremarkable, especially considering the primacy of adjudication in judicial decision-making. But that is precisely the heart of why civil rights regulation is so different from the actions of administrative agencies. See generally Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Min. L. Rev. 1049 (1978) (arguing that Brown v. Board of Education, 347 U.S. 483 (1954), and the discrimination cases following having been characterized by a perpetrator perspective that has imposed important limits on government power to remedy discrimination); see also Sullivan, supra note 204, at 85–90.
314 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989) (stating that the Court has “never approved extrapolation of discrimination in one jurisdiction from the experience of another”) (citing Milliken, 418 U.S. at 746). There is an astonishing undercurrent to this approach that can best be understood by considering what it would ask of government in other more technical/scientific areas of regulation. For example, applying such a decision-making approach to environmental regulation would require local governments or EPA to conduct experiments to document the applicability of the laws of physics and chemistry, and to demonstrate the ecological and public health consequences of pollution for each locale or jurisdiction in which it sought to regulate pollution.
315 Of course, my claim here is not that the federal environmental regulatory system is a perfectly all-encompassing regulatory scheme whereas civil rights law is unsatisfyingly piecemeal. As noted previously, the environmental laws are far from perfect. See discussion supra Part II.B. Various constitutional limitations, such as the Takings Clause, impose additional external constraints. And the constitutional limitations on anti-discrimination policies apply to all laws, including environmental protection laws. Yet, the practical impact of such limitations on environmental regulation has not had nearly the same disabling effect in restraining government intervention as it has had in the anti-discrimination context. Compare generally Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003 (1992) with Milliken, 418 U.S. 717.
316 See, e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241, 252–53, 291–93 (1964) (Goldberg, J., concurring).
317 See, e.g., Milliken, 418 U.S. at 728 n.7 (referencing lower court finding of Federal Housing Authority and Veterans Administration involvement in creating or maintaining racially segregated housing pattern); see also id. at 771 n.5 (White, J., dissenting) (noting that construction of schools in the heart of residentially segregated areas maximizes school segregation and perpetuates residential segregation).
318 Id.
319 See, e.g., Been, supra note 287, at 1388–89; Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 114 (1993).
320 See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 261 (1995) (Stevens, J., dissenting) (arguing that minorities face barriers to participation in government contracting because they do not have access to the pre-existing social relationships that are frequently crucial in obtaining subcontracts from prime contractors); see also id. at 271 (Ginsburg, J., dissenting) (citing various studies documenting continuing race discrimination); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 531–33 (1989) (Marshall, J., dissenting); Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 Harv. L. Rev. 817 (1991); Ian Ayres & Fredrick E. Vars, When Does Private Discrimination Justify Public Affirmative Action?, 98 Colum. L. Rev. 1577, 1592–96 (1998) (containing data about statistical disparities in private purchases from minority and non-minority businesses).
321 The Supreme Court has candidly acknowledged this state of affairs. The Civil Rights Cases, 109 U.S. 3, 17 (1883). In line with the limitations on the reach of government action regarding discrimination, however, the Court has held that general “[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy” to provide relief for racial minorities. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986). In fact, under Justice Scalia’s view, “outside the context of school assignment, . . . the continuing effects of prior discrimination [cannot] be equated with state maintenance of a discriminatory system,” and thus does not justify government intervention. J.A. Croson Co., 488 U.S. at 525 (Scalia, J., concurring). But see J.A. Croson Co., 488 U.S. at 538 (Marshall, J., dissenting) (“The more government bestows its rewards on those persons or businesses that were positioned to thrive during a period of private racial discrimination, the tighter the deadhand grip of prior discrimination becomes on the present and future.”).
There are, of course, a number of arguments as to why all forms of racial classification, whether benign or invidious, are inappropriate. These range from prophylactic concerns about the potential misuse of such classification to implement notions of prejudice and stereotype, the desire to strive directly for the long-term ideal of color-blindness, and the notion that racial classifications, as an abstract matter and regardless of their effects on particular groups, are evil in and of themselves. Each of these views depends on differing assumptions about what approaches are most effective in addressing discrimination and racial inequality and what the Constitution permits. Yet, they all share the characteristic that they find the continuing burdens of the present effects of past discrimination on racial minorities acceptable as a price to society, and they ignore the very different uses and impacts that racial classifications have had on racial minorities. In all of these views, history and the reality of inequality matter little compared to particular notions of causation and jurisdiction.
322 See Colopy, supra note 110, at 152–56; Light & Rand, supra note 109, at 5 n.10.
323 EPA defines stressors as factors introduced into the environment that may adversely affect the health of humans, animals, or ecosystems, such as chemicals, noise, or odors. Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,686.
324 Id. at 39,678.
325 Id. at 39,379–80.
326 See supra notes 305–27 and accompanying text. Of course, the counter-argument would be that Title VI imposes anti-discrimination obligations independent of state law.
327 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,678.
328 Id.
329 Such reasoning would also misapply the remedies limitations to a wholly unrelated area of law. More aptly, this approach is a manifestation of its close cooperative partnerships with states and the deference that it tends to extend within environmental regulatory schemes. See supra notes 225–247, and accompanying text.
330 42 U.S.C. § 2000d (2000).
331 See also infra notes 441–480 and accompanying text accompanying.
332 See supra notes 128–132 and accompanying text.
333 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,679.
334 EPA explicitly admits that the “evaluation would need to take into account considerations such as policies developed for single stressors or sources without explicit consideration of cumulative contributions and uncertainties in estimates. In some cases, the relevant environmental laws may not identify regulatory levels for the risks of the alleged human health impact or may not address them for Title VI purposes.” Id. at 39,680.
335 See generally id. at 39,677–80.
336 See Been, supra note 287, at 1388–91.
337 It is arguably also an attempt, however disfavorable to environmental justice activists, to adopt a more traditional civil rights approach.
338 The common law roots can still be found, for instance, in the imminent hazard provision, section 7003, of RCRA, 42 U.S.C. § 6973, which “is essentially a codification of common law public nuisance remedies.” S. Rep. No. 96-172, pt. 1, at 5 (1980), reprinted in 1980 U.S.C.C.A.N. §§ 5019, 5023.
339 For example, the difficulties that toxic tort litigants have faced in linking their alleged harms to specific actors, substances, or acts are illustrative of these problems. Proof of a discrimination claim raises related indeterminacy problems of multiple causation factors and pre-existing conditions. For instance, in the hazardous waste facility siting context, environmental justice claimants have had to contend with non-discriminatory justifications for disparate siting and impacts, such as cost considerations or transportation access availability as well as the contributing impacts of pre-existing facilities. The toxic tort equivalent has been the attribution of harms to lifestyle choices or to environmental risks and harms other than those blamed on defendants at trial. Arguments that minority communities may not even be exposed to a facility’s harmful pollutants are often times equivalent to arguments in toxic tort suits that a plaintiff has suffered no harm because he or she is asymptomatic.
340 To the extent that one can analogize the considerations that Steven Shavell has raised as being relevant to utilizing a harm management over liability approach, they provide some support for the application of the environmental regulatory model here as well. See generally Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. Leg. Stud. 357 (1984). Thus, with regard to environmental justice claims, government agencies have a significant information advantage over any particular claimants, since government agencies have much easier access, and in fact, are provided with information about the distribution and locations of pollution facilities. Furthermore, once a facility has been permitted and built, it is unlikely because of sunk costs and reliance interests that an environmental justice claimant can be made whole or put into the same situation as prior to the facility’s commencement of operations.
341 This understanding thus also rejects comprehensive approaches to redressing discrimination, which can include race-conscious measures such as affirmative action. Instead, government efforts must proceed in a piecemeal fashion. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274–77 (1986) (rejecting role model rationale for preferring minority teacher over Caucasian teacher in layoffs); see also id. at 315 (Stevens, J., dissenting) (identifying reduction of prejudice as a benefit of white students being taught by minority teacher); Hopwood v. Texas, 78 F.3d 932, 950–51 (5th Cir. 1996); cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 497–98 (1989) (identifying as the reason for the insufficiency of the role model justification in Wygant the failure to provide a sufficiently close connection to demonstrated past discrimination, rather than denying the benefits of minority role models to children).
342 See Washington v. Davis, 426 U.S. 229, 242 (1976).
343 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,668–69.
344 See id.
345 See generally Yale Rabin, Expulsive Zoning: The Inequitable Legacy of Euclid, in Zoning and the American Dream 101 (Charles M. Haar & Jerold S. Kayden eds., 1989) (showing that cities have zoned low-income communities of color for more intensive land uses); Arnold, supra note 50.
346 Yang, supra note 24, at 24–28.
347 Milliken v. Bradley, 418 U.S. 717, 758 (1974).
348 See generally 42 U.S.C. § 4332 (2000).
349 See infra notes 367–374 and accompanying text.
350 See Yang, supra note 24, at 27–28.
351 Here, my use of the term “rational” is not equivalent to economically efficient. Rather, I use the term in its most general sense as including all actions that are engaged in because of specific reasons and contrast it to actions that are engaged in for no reason, for reasons that the actor realizes to be false, or for delusional reasons. For a discussion of the various conceptions of rational actions, see Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 Calif. L. Rev. 1051, 1060–66 (2000). For a general critique of economic approaches to law, see Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 Va. L. Rev. 451 (1974).
352 Hardin, supra note 57.
353 Id. There have also been significant criticisms of the tragedy of the commons understanding of environmental degradation. See R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). See generally Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711 (1986).
354 Hardin, supra note 57.
355 E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313, 324 (1985).
356 Id.; see also Rodgers, supra note 229, at 39–42; see generally Robert Axelrod, The Evolution of Cooperation (1984); Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
357 Elliott et al., supra note 355, at 324; see also Rodgers, supra note 229, at 39–42; see generally Robert Axelrod, The Evolution of Cooperation (1984); Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
358 See Hardin, supra note 57.
359 See Axelrod, supra note 356, at 9.
360 See, e.g., 20 U.S.C. § 5509 (2000).
361 See Axelrod, supra note 356, at 10–11.
362 See, e.g., 42 U.S.C. § 6929 (2000) (containing federal enforcement provisions of RCRA).
363 See infra notes 395–407 and accompanying text.
364 Gordon W. Allport, The Nature of Prejudice 3–9 (1954).
365 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 643 (1991) (O’Connor, J., dissenting) (stating that “[r]acism is a terrible thing. It is irrational, destructive, and mean.”).
366 Allport, supra note 364, at 3–9. Prior to the 20th century, beliefs in the superiority of the “white race” over others was accepted by many as true. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1174 n.39 (1995); see also Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy 83–97 (1962). Since then, the use of race and skin color as a criterion for legitimate distinctions between individuals with regard to their character, merit, intelligence, and virtually all other personal characteristics has been largely discredited. See generally Stephen Jay Gould, The Mismeasure of Man (1996) (discussing how racial prejudices have led to false scientific claims about racial differences and the superiority of Caucasians). Nevertheless, because of their attractiveness in explaining social inequality, such views resurface periodically. See, e.g., Richard J. Herrnstein & Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (1994). But see Stephen Jay Gould, Curveball, The New Yorker, Nov. 28, 1994, at 139.
367 Id.
368 Allport, supra note 364, at 17–27.
369 Id. at 9 (emphasis removed). Such “antipathy [is] based upon a faulty and inflexible generalization” about racial distinctions and the inferiority of non-Caucasians. Id.
370 Myrdal, supra note 366, at 100. This has held especially true with regard to racial beliefs about African-Americans. “In this magical sphere . . . , the Negro is inferior, totally independent of rational proofs or disproofs[;] he is inferior in a deep and mystical sense.” Id.
371 See generally Gary S. Becker, The Economics of Discrimination 16–17 (2d ed. 1971).
372 Id. at 16.
373 See id.
374 See id.
375 See id. at 16 n.4.
376 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 316 (1986) (Stevens, J., dissenting) (quoting Cleburne v. Cleburne Living Center, 473 U.S. 432, 452 (1985)); see also id. at 313–14 (Stevens, J., dissenting) (stating that the consideration of race in decisions regarding jury service, use of public services, marriage, and child custody is “‘utterly irrational’ because it is completely unrelated to any valid public purpose”); Allport, supra note 364, at 3–28 (discussing the unwarranted categorizations and beliefs that make up prejudice); Myrdal, supra note 366, at 97–101; Lawrence, supra note 75, at 331–39 (discussing psychoanalytic and cognitive explanations for the irrationality of prejudice).
377 City of Richmond v. Croson, 488 U.S. 489, 526–28 (1989) (Scalia, J., concurring).
378 See, e.g., James A. Henderson, Jr. & Richard N. Pearson, Implementing Federal Environmental Policies: The Limits of Aspirational Commands, 78 COLUM. L. REV. 1429, 1433 n.16 (1978) (stating that “civil rights matters do not ordinarily involve ‘the tragedy of the commons,’ which operates to lead persons to maximize their own short run self-interest at the expense of their long run welfare”).
379 Hardin, supra note 57.
380 See Becker, supra note 371, at 16–17; Myrdal, supra note 366, at 100.
381 See Becker, supra note 371, at 16–17; Myrdal, supra note 366, at 100.
382 Myrdal, supra note 366, at 100.
383 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315 (1986) (Stevens, J. dissenting).
384 See Becker, supra note 371, at 16-17.
385 Myrdal, supra note 366, at 100.
386 Cass Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 753 (1991). In recent years, increasing attention has also been focused on prejudice and discrimination as forms of cognitive errors—errors of association and categorization. See infra note 395.
387 See id. at 754.
388 Id.
389 See Bell v. Maryland, 378 U.S. 226, 245 (1964) (Douglas, J., concurring) (stating that a restaurant may have refused service to African–Americans where “‘it’ thought ‘it’ could make more money by running a segregated restaurant”); see also Becker, supra note 371, at 75-77; Richard A. Epstein, The Case Against Employment Discrimination Law (1992) (arguing that employment discrimination can be a rational response by a firm to increase productivity by reducing inter-group conflicts); Sunstein, supra note 386, at 754–55.
390 Becker, supra note 371, at 93–95. Housing segregation, lower home values, and “white flight” from neighborhoods that slowly become inhabited by racial minorities, especially African-Americans, is one of the most salient expressions of third party discrimination.
391 Sunstein, supra note 386, at 755.
392 Id. at 755–57 (discussing use of statistical information as predictor in employment decisions). In many respects, these racial profiles are little more than racial stereotypes, albeit generated through more sophisticated methods.
393 See, e.g., Developments in the Law—Race and the Criminal Process: III. Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct, 101 Harv. L. Rev. 1494, 1503 (1988); Randall Kennedy, Suspect Policy, New Republic, Sept. 13, 1999, at 30–31. See generally Randall Kennedy, Race, Crime and the Law 136–67 (1997).
394 See generally Angela J. Davis, Race, Cops and Traffic Stops, 51 U. Miami L. Rev. 425 (1997); David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev. 265 (1999).
395 In fact, the deliberate use of generalizations about racial groups in decision-making is only the explicit use of cognitive categories that both Charles Lawrence and Linda Krieger have argued are important causes for discrimination. Lawrence, supra note 75; Krieger, supra note 366. Categorization allows us to simplify the task of making sense of our daily experiences by filtering them through these categories. At the same time, categories also simplify decision-making by allowing missing information to be inferred, thus facilitating action under conditions of uncertainty or imperfect information. Lawrence, supra note 75, at 324 (stating that “categorization” is a process by which “humans . . . make sense of experience. Too many events occur daily for us to deal successfully with each one on an individual basis; we must categorize in order to cope.”); see also Krieger, supra note 366, at 1188–90.
Yet, while categorization is a fact of life, it is not an entirely self-contained and independent process, nor does it proceed in an objective and exact fashion. Category formation can be influenced by outside factors, including the stereotypes and categories of others as well as those of prevailing culture and society. Krieger, supra note 366, at 1195–98. Likewise, category formation can be affected by “‘illusory correlations’—the subjective perception of a strong correlation that objectively does not exist.” Id. at 1195. In the race context, these categorization defects explain how racial stereotypes are created and how they are perpetuated from generation to generation. It also explains how the underlying process, just like in the utilization of statistical information about race and crime, is essentially a rational process—it is an attempt, even if flawed, of rationally processing and using information in the face of real world constraints on available resources, time, and information itself. See Lawrence, supra note 75, at 336.
396 See generally Derrick Bell, Race, Racism, and American Law 63–68 (1900); Michael Omi & Howard Winant, Racial Formation in the United States: from the 1960s to the 1990s (2d ed. 1994).
397 See generally Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1709, 1762 (1993).
398 See id. at 1791.
399 See Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003, 1084 (1995).
400 W.E.B. Du Bois, Black Reconstruction in America 700 (1935).
401 Psychological experiments have, in fact, provided confirmation that explicit delineations of group-membership, even ones based on random criteria, create a significant bias of group members against non-members regardless of fairness and maximum mutual gain considerations. Krieger, supra note 366, at 1192–93. Within the race context, this explains much of why discrimination arose in the first place, why it is so difficult to correct prejudicial beliefs with facts to the contrary, and why remedial approaches to discrimination have been so elusive. See generally Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111 (1997).
402 E.g., Derrick Bell, And We Are Not Saved 26–50 (1987).
403 See McAdams, supra note 399, at 1074–78.
404 See id. at 1066.
405 Id. at 1014–16.
406 See id.
407 Of course, unregulated access does not only suggest lack of legal regulation, but also suggests a lack of customary and other informal communal regulations, since such informal regulations can ameliorate the tragedy of the commons. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 742 (1986).
408 See McAdams, supra note 399, at 1029–33.
409 The perpetuation of racial privileges and discrimination can usually be rationalized through racial stereotypes and race-neutral norms, including institutional processes that are historically biased against racial minorities. See McAdams, supra note 399, at 1072–74; see generally Lopez, supra note 74. For example, the call for color-blindness and claims of reverse discrimination arguably justify opposition to race-based remedial measures for past discrimination, such as affirmation action.
410 Unlike environmental degradation, discrimination must be pursued in cooperation with other members of the same racial group in order to successfully achieve its purpose. By definition, the benefits of discrimination are not within the capacity of individuals to achieve by themselves, because they depend inherently on interactions and relationships with others—the preferential treatment or higher social status that is accorded to the discriminator by others.
In fact, as McAdams has pointed out, social exclusion mechanisms, such as segregation, serve important purposes in maintaining group cohesion and ameliorating group-internal prisoner dilemma-type problems that the occasional economic benefit of defection (i.e., the failure to discriminate) would present. See McAdams, supra note 399, at 1013–17.
411 See generally Omi & Winant, supra note 396, at 9–47.
412 See, e.g., id.; Krieger, supra note 366; Lawrence, supra note 75.
413 See Elliott et al., supra note 355, at 325 (raising the irrelevance of the prosecutor’s role and acumen in the prisoner’s dilemma). This understanding suggests that this form of discrimination is arguably not as morally reprehensible as others—after all, the discriminator does not harbor ill will per se toward the individual discriminated against. Instead, the harm results as a necessary by-product of the pursuit of self-interest. In contrast, one could also argue that the foreseeable and deliberate harm to racial minorities imposed for purposes of furthering one’s self-interest is in fact more morally reprehensible than an unexplainable and innate racial hatred.
414 See e.g., Jerry Kang, Cyber-Race, 113 Harv. L. Rev. 1130 (2000).
415 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,680–81.
416 Id.
417 Id.
418 See id. at 39,683.
419 Id.
420 See id.
421 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,683.
422 See id. at 39,657.
423 Id.
424 Id.
425 Letter from Lawyers’ Committee, supra note 248, at 16–17.
426 See Hardin, supra note 57.
427 See discussion supra Introduction.
428 See discussion supra Part II.
429 These descriptive and normative questions are closely related because, arguably, if the competency exists, then it should be utilized. Conversely, if there is an appropriate role and mandate to address such issues, EPA should acquire the competency.
430 See discussion supra Part I.C.
431 See supra note 203.
432 See Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,651; see also Exec. Order No. 12,250, 45 Fed. Reg. 72,995, 72,995–97 (Nov. 2, 1980).
433 See generally supra Part II.C.1.
434 But see Yang, supra note 24.
435 In fact, the Executive Order on Environmental Justice established such an inter-agency working group to address environmental justice issues as a government-wide matter. Exec. Order No. 12,898, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994); see also An Integrated Federal Interagency Environmental Justice Action Agenda, at http://es.epa.gov/oeca/ main/ej/iwg/actionagenda.pdf (last visited Jan. 12, 2002).
436 See 42 U.S.C. §§ 2000d-1 (2000).
437 President Kennedy, in his statement accompaying his proposal for the Civil Rights Act, stated to Congress that “[s]imple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” See H.R. Doc. No. 124 (1963), reprinted in 1963 U.S.C.C.A.N. 1534.
438 More importantly, the types of discrimination and equity issues implicated by EPA’s regulatory activities are quite different from those dealt with by agencies such as the EEOC or HUD. Rather than attempting to balance the specific interests of individuals and the impacts on inter-personal relationships, the vast bulk of the discrimination and fairness issues raised by EPA’s regulatory activities relates to the impact of governmental regulatory decisions and business activities on individuals or small communities. In that sense, EPA’s task in addressing discrimination and equity issues is much like the traditional regulatory actions it takes in other areas and is much less politically and socially sensitive than that of other agencies.
439 Title VI ensures that its anti-discrimination concerns are not elevated over EPA’s environmental priorities. See 42 U.S.C. § 2000d-1.
440 See id.
441 Of course, such control may be limited by Congress. See, e.g., Morrison v. Olson, 487 U.S. 654, 664 (1988); Humphrey’s Executor v. United States, 295 U.S. 602, 626 (1935). See generally Mashaw et al., supra note 200, at 169–280.
442 See 42 U.S.C. § 2000d-1; see also Charles F. Abernathy, Title VI and the Constitution: A Regulatory Model for Defining “Discrimination, 70 Geo. L.J. 1, 29, 31 (1981).
443 See Abernathy, supra note 442, at 31.
444 See discussion supra Part I.B.
445 See discussion supra Part I.B.
446 See discussion supra Part I.C.
447 In such an environment, it seems inevitable that the “regulatory capture” of EPA by such interests will occur. See Stewart, supra note 208, at 1682–88, 1713–15. One would not expect the “capture” of the Title VI process to be obvious in the sense that most meritorious claims will be denied outright. Rather, it can be expected that review of Title VI claims will be perfunctory and technical in nature, and that claims that are not obviously meritorious will not receive the serious consideration they deserve. Arguably, this already happened in the context of EPA’s handling of the Select Steel matter. See Select Steel Complaint Letter, supra note 118.
448 Draft Title VI Recipient and Revised Investigation Guidance, supra note 17, at 39,672.
449 Id.
450 Id.
451 Id.
452 Id.
453 See 121 S. Ct. 1511 (2001) (foreclosing a private right of action for individual plaintiffs to enforce Title VI disparate impact regulations directly in federal court).
454 See Mank, supra note 165.
455 Id. But see South Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771 (3d Cir. 2001).
456 Moreover, deferential review of agency actions by courts may largely insulate agency implementation of Title VI regulations from further challenge. See 42 U.S.C. § 2000d-2; see also Abernathy, supra note 442, at 39; Letter from Lawyers’ Committee, supra note 248, at 5.
457 See Letter from Lawyers’ Committee, supra note 248, at 5.
458 See generally id. at 5–7.
459 See generally Mashaw et al., supra note 200, at 286–438.
460 Federal judges are selected by political processes in the first place, and as a matter of practical reality, are not entirely free from political pressures. See, e.g., Chayes, supra note 172, at 1307–08.
461 See, e.g., 40 C.F.R. § 22.8 (2001) (limiting ex parte communications by administrative law judges and other agency officials connected to administrative proceedings during pendency of process). See generally id. § 22.
462 See Chayes, supra note 172, at 1307–08 (asserting that judges have a “professional ideal of reflective and dispassionate analysis of the problem before [them] and [are] likely to have had some experience in putting this ideal into practice”).
463 See Richard Lazarus, Integrating Environmental Justice into EPA Permitting Authority, 26 Ecology L.Q. 617, 655–77 (1999).
464 See id.
465 In re Louisiana Energy Serv., 47 N.R.C. 77, 100–07 (1998) (finding that NEPA, 42 U.S.C. §§ 4321–4370e (2000), required the Nuclear Regulatory Commission to consider environmental justice impacts in the Commission’s licensing process, and remanding a nuclear material license for agency review to determine whether such concerns were adequately considered); see also Sheila Foster, Impact Assessment, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, supra note 34, at 272–82.
466 See 47 N.R.C. at 104–06.
467 See Foster, supra note 465, at 276–82.
468 Id.
469 Id.
470 Id.
471 Id.
472 See generally 42 U.S.C. § 2000d-1 (2000). Title VI was designed to prompt agency action because, as the Supreme Court recognized in the context of discrimination against the handicapped, much discrimination continues to be a present-day problem because of apathy, subconscious aversions, and the ease with which discrimination is perpetuated. See Alexander v. Choate, 469 U.S. 287, 295–96 (1985).
473 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994).
474 For example, Heidi Gorovitz Robertson has pointed out that grandfathering of pollution permits has a significant impact on minority communities. Heidi Gorovitz Robertson, If Your Grandfather Could Pollute, So Can You: Environmental “Grandfather Clauses” and Their Role in Environmental Inequity, 45 Cath. U. L. Rev. 131, 177–79 (1995).
475 Thus, the legislative history indicates that Congress intentionally left unclear what types of discrimination might be covered and subsequently prohibited within Title VI. See generally Abernathy, supra note 442, at 29–30. The rationale behind the discretion that was thus delegated to agencies was that different agency missions and regulatory structures called for different anti-discrimination protections. See id. (reviewing legislative history); see also Choate, 469 U.S. at 293–94.
The plain meaning of the text reveals Congress’ intent to provide the relevant agencies with sufficient authority to transform the statute’s broad aspiration into social reality. So too does a lengthy, consistent, and impassioned legislative history that strongly indicates that the Congress that adopted Title VI and the administration that proposed the statute both intended that agencies and departments would utilize the authority granted under § 602 to shape the substantive contours of § 601. For example, during the hearings that preceded the passage of the statute, Attorney General Robert Kennedy agreed that the administrators of the various agencies would have the power to define “what constitutes discrimination” under Title VI and “what acts or omissions are to be forbidden.” Civil Rights—The President’s Program, 1963: Hearings Before the Senate Committee on the Judiciary, 88th Cong. 399–400 (1963); see also Civil Rights: Hearings Before the House Committee on the Judiciary, 88th Cong. 2740 (1963) (including remarks of Attorney General Kennedy) (stating only after the agencies “establish the rules” will recipients “understand what they can and cannot do”). It was, in fact, concern for this broad delegation that inspired Congress to amend the pending bill to ensure that all regulations issued pursuant to Title VI would have to be approved by the President. See 42 U.S.C. § 2000d-1 (2000); Alexander v. Sandoval, 121 S. Ct. 1511, 1529–31, 1532 n.19 (2001) (Stevens, J., dissenting).
476 See, e.g., Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 642 n.12 (1983) (Stevens, J., dissenting) (“Congress expected most interstitial lawmaking [for Title VI] to be performed by administrative agencies, not courts.”); Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996). At the same time, making such regulations subject to the approval of the President also addressed concerns about political accountability and narrow institutional competencies with regard to the ability to consider discrimination issues. See Abernathy, supra note 442, at 31. The President delegated this approval authority to the Attorney General. Exec. Order No. 12,250, Leadership and Coordination of Implementation and Enforcement of Nondiscrimination Laws, 42 Fed. Reg. 72,995 (Nov. 2, 1980).
477 See also Guardians Ass’n, 463 U.S. at 622–23 (Marshall, J., dissenting); Adams v. Bell, 711 F.2d 161, 181–83 (D.C. Cir. 1983) (Wright, J., dissenting); Abernathy, supra note 442.
478 Choate, 469 U.S. at 293–94 (stating that Title VI “delegated to the agencies . . . the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and were readily enough remediable, to warrant altering the practices of federal grantees that had produced those impacts”); Guardians Ass’n, 463 U.S. at 592.
479 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844–45 (1984).
480 See Alexander v. Sandoval, 121 S. Ct. 1511, 1532 (2001) (Stevens, J., dissenting).
481 In this respect, EPA’s traditional focus on utilitarian outcomes, and less on process values, can actually help it address this underlying contribution to discrimination. See generally Tseming Yang, Balancing Interests and Maximizing Rights in Environmental Justice, 23 Vt. L. Rev. 529 (1999).
482 See Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994).
483 Pub. L. 91-190, 83 Stat. 852 (codified at 42 U.S.C. § 4321 (Jan. 1, 1970)).
484 See generally Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law, and Society 612–19 (2d ed. 1998).
485 Id.
486 42 U.S.C. § 4332 (2000).
487 See Calvert’s Cliffs’ Coordinating Comm. v. United States Atomic Energy Agency, 449 F.2d 1109, 1112–13 (D.C. Cir. 1971).
488 42 U.S.C. § 4332(A).
489 Of course, Title VI appears to provide EPA with broad regulatory discretion in how to implement this goal. See Alexander v. Choate, 469 U.S. 293–94 (1985). But the exercise of such discretion, and what appropriate anti-discrimination requirements ought to be, would arguably be significantly affected by different premises about the role of anti-discrimination within environmental protection. Such premises are at issue here.
490 As the agency empowered to review and comment on the adequacy of environmental impact statements “from the standpoint of public health or welfare or environmental quality,” EPA was essentially charged with ensuring that human health and environmental quality concerns became issues of primary concern not only to EPA and a few other agencies with environmental missions, but also to the federal government as a whole. Clean Air Act § 309, 42 U.S.C. § 7509; see also 40 C.F.R. § 1504.1(b) (2001). Within the NEPA scheme, EPA is specifically charged with reviewing and commenting on environmental impact statements. See 42 U.S.C. § 4321. Ultimately, the Council on Environmental Quality is the entity charged with judging the adequacy of agency implementation of NEPA. 42 U.S.C. § 4344; 40 C.F.R. §§ 1500–1517; see Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
491 See, e.g., Envtl. Def. Fund v. EPA, 489 F.2d 1247, 1256 (D.C. Cir. 1973); Wyoming v. Hathaway, 525 F.2d 66 (10th Cir. 1975).
492 See Lazarus, supra note 463; see also Envtl. Law Inst., Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities (2001); EPA ‘Buried’ 1994 Plans for Major Environmental Justice Roadmap, Inside E.P.A. Weekly Rep., Special Report, Mar. 3, 2000.
493 See Lazarus, supra note 463, at 636–37, 641.
494 42 U.S.C. § 7413(e)(1); see also Clean Water Act § 309(g), 33 U.S.C. § 1319(g) (2000); Safe Drinking Water Act § 3008, 42 U.S.C. § 6928(a)(3) (referencing the “seriousness of violation”).
495 It took EPA almost six years to provide a partial analysis of existing legal authorities to address environmental justice issues within its regulatory activities.
496 For example, the incorporation of environmental justice considerations into its NEPA process is another important step forward in this regard. See National Environmental Justice Advisory Council Workgroup on Waste Transfer Stations, Notice of Public Hearing, 63 Fed. Reg. 58,045 (Oct. 29, 1998); see also Council on Environmental Quality, Environmental Justice Guidance Under the National Environmental Policy Act (1997), at http://es.epa.gov/oeca/main/ej/docs/epafin.pdf (last visited Jan. 16, 2002); U.S. Envtl. Protection Agency, Final Guidance For Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analyses (1994), at http://es. epa.gov/oeca/ofa/ejepa.html (last visited Jan. 16, 2002). Yet, few of EPA’s environmental regulatory processes are subject to NEPA. See discussion supra Part IV.C.
497 See discussion supra Part II.
498 See discussion supra Part III.