[*PG143]THE FORM AND SUBSTANCE OF ENVIRONMENTAL JUSTICE: THE CHALLENGE OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR ENVIRONMENTAL REGULATION

Tseming Yang*

Abstract:  EPA’s Title VI disparate impact regulations have become a key component of its efforts to address environmental justice issues. However, EPA’s proposed implementation of these regulations through its Draft Title VI Guidance raises serious difficulties. Its attempt to combine civil rights and environmental law doctrines in a whole-sale fashion exposes significant tensions in the regulatory premises between these areas of law. The tensions are evident in how the Guidance approaches issues of minority protections, incommensurable values, and the limits of regulatory intervention. However, there are also important parallels that substantive understandings of discrimination and environmental degradation share. In particular, the role of ration-ally self-interested actions in shaping discriminatory and environment-ally degrading behavior suggests that EPA must not only change how it regulates but also what its regulations focus on. EPA’s Title VI regulation can serve an important function within such efforts to adjust both the form of its regulatory approaches as well as the substantive focus of regulatory solutions.

Introduction

In the 1950s and early 1960s, African-American and Caucasian “Freedom riders” traveled through the South to test state segregation laws, only to be met with violence.1 Peaceful protestors, including [*PG144]women and children, marched against discrimination and were attacked by police and mauled by dogs.2 And Governor George Wallace stood in the “schoolhouse door” to block African-American students from enrolling at the University of Alabama.3 When newspapers and television brought pictures of bigotry, officially condoned violence, and defiance of federal laws into our homes, the President sent federal marshals, and Congress enacted new and sweeping federal civil rights protections.4

During those same times, smog made the air in our cities unbreathable.5 Toxic chemicals and pesticides poisoned humans, animals, and plant life.6 Our streams and lakes became so polluted that the Cuyahoga River burned.7 When environmentalists and citizens cried out to the federal government for help, Congress enacted a series of revolutionary environmental statutes, and the President created the Environmental Protection Agency (EPA).8

In the 1980s and early 1990s, a new movement began. Protestors engaged in non-violent acts of civil disobedience to prevent the dumping of toxic wastes in an African-American community in South Carolina.9 The United Church of Christ published a study documenting racial disparities in the siting of hazardous waste facilities.10 Racial minority plaintiffs brought federal law suits alleging discrimination in the siting of waste facilities and uniformly lost.11 Only with the First People of Color Environmental Summit did Congress, the President, and environmental regulators begin to pay attention to disparate pol[*PG145]lution and toxic burdens visited on racial minority communities and the poor and the questions of equity and fairness in environmental regulation.12

In response to this movement, however, Congress did nothing. President Clinton issued an unenforceable Executive Order on environmental justice.13 And EPA created a federal advisory committee as well as an internal office with no substantive authority but charged with coordinating the integration of environmental justice into agency policies and activities.14

As the confluence of the two great social movements of the twentieth century, the environmental justice movement’s failure to have its concerns addressed as seriously as its predecessors is striking. As an explanation of why government has not provided remedies to environmental justice claims, scholars have pointed to a lack of political power of communities of color and the poor.15 Others have also argued that civil rights laws, and in particular the equal protection doctrine, have been largely unable to respond to the discrimination and distributional inequity claims of the environmental justice movement because of the significant obstacle that the doctrine’s discriminatory intent requirement creates.16

The focus of the most recent efforts to overcome these difficulties has been EPA’s guidance on the investigation of administrative complaints alleging disparate discriminatory impacts under its [*PG146]regulations implementing the Civil Rights Act of 1964.17 These regulations apply to all recipients of EPA financial assistance.18 Since the vast majority of state and local governments implementing EPA regulatory programs receive some form of federal financial assistance and since many allegations of discrimination have involved permits issued by such state and local government agencies, EPA’s Title VI Guidance has held out great promise for change.19 Yet the Guidance has been severely criticized by environmental justice advocates as being seriously deficient.20

Such criticisms have become more important in light of the Supreme Court’s recent decision in Alexander v. Sandoval,21 finding that individual plaintiffs have no private right of action to enforce EPA’s disparate impact regulations directly in court. With doctrinal developments that make it more difficult for private citizens to directly enforce EPA’s Title VI disparate impact regulations, those wronged will have to place more reliance on administrative remedies to vindicate their interests.22 But more significantly, EPA’s Title VI Guidance is one of the few attempts to articulate substantive decision-making criteria [*PG147]for government officials (and industry) interested in acting responsibly with regard to the concerns of the environmental justice movement.23 To the extent that such substantive criteria fail to advance or protect the very interests of racial minorities, as well as communities raising environmental justice issues more generally, such failings must be taken very seriously.

Many of the difficulties that regulators have encountered in addressing environmental justice issues can be traced to the vastly different regulatory paradigms that environmental regulators and environmental justice activists bring to their understanding of the role of government intervention in solving environmental justice problems.24 These difficulties have not been resolved in EPA’s Title VI Guidance and raise questions about the effectiveness of the Guidance in solving environmental justice problems.

Yet, in formulating its Title VI Guidance, EPA has also sought to rely on approaches that other agencies have used in their implementation and enforcement of Title VI regulations.25 As a result, the application of Title VI to environmental issues also raises larger issues with regard to the ability of traditional civil rights mechanisms to solve race and equity problems in environmental regulation. These difficulties suggest that EPA needs to examine more closely the substance of the problems raised by activists. It needs to tailor its interventions specifically to the issues raised rather than routinely adapting approaches used elsewhere. To address environmental justice issues effectively, EPA must reshape its regulatory approaches, including its approach to Title VI, in both form and substance.26

Part I of this Article provides background on the environmental justice movement and the problems that it has encountered in seeking remedies under the civil rights and environmental laws.27 Part I also presents an overview of the Title VI Draft Revised Investigation Guidance.28

Part II details the regulatory frameworks of civil rights law and environmental law that the environmental justice movement has [*PG148]brought together.29 These frameworks are based on fundamentally different regulatory premises with regard to minority protection concerns, the role of incommensurable values in regulatory decision-making, and the limits of appropriate regulation. Unfortunately, in implementing its Title VI Guidance, EPA has not resolved many of the tensions that have made it difficult to address environmental justice problems in the first place.

Part III examines the respective underlying substantive social problems that environmental law and civil rights law seek to address.30 Modern understandings of race discrimination and environmental degradation view those underlying social problems as resulting in large part from rationally self-interested actions. These views underscore that discrimination and environmental degradation occur regardless of evil motivations and that an important role of civil rights and environmental law in redressing these problems is to change the incentives that prompt them in the first place. In the end, effective regulation to redress problems of environmental justice must look past the traditional conceptions of racial animus and prejudice and focus on the incentives and disincentives that lead to discriminatory actions.

Part IV suggests changes that EPA will need to make to incorporate this understanding of discrimination and environmental justice into its regulatory framework.31 Because of broad delegation to agencies of regulatory authority over discrimination in federally funded programs, Title VI provides unique opportunities in this regard.32 In particular, EPA needs to alter the form of its regulatory decision-making process, for instance by incorporating adjudicative processes into its Title VI process. It will also need to change the substantive focus of its regulatory efforts by addressing the incentives and biases that encourage actions with discriminatory outcomes or that perpetuate pre-existing inequities and discrimination. In this regard, its role within the National Environmental Policy Act33 can provide a useful precedent for an enhanced role within Title VI as well as its activities under other environmental statutes.

[*PG149]I.  Environmental Protection and Environmental Justice

A.  Race, Equity, and the Environment

The environmental justice movement has been one of the most important influences on environmentalism in recent years.34 Concerns about race, equity, and fairness in environmental protection, however, have long predated the recent rise of the environmental justice movement in the United States.35

In the late 1960s and early 1970s, civil rights activists and scholars commented that the federal government’s newfound focus on environmental problems might draw resources and attention away from the lingering effects of a century of state sanctioned segregation and discrimination.36 At the same time, activists and scholars were also concerned that regulatory efforts themselves would not be focused on the distributional impacts of environmental regulations on racial minorities.37 These concerns fell on deaf ears.38

In 1982, protests about the siting of a hazardous waste facility among predominately African-American and poor communities in Warren County, North Carolina, raised race and equity issues in one of their most concrete forms.39 Frequently pointed to as the visible beginnings of the environmental justice movement, the incident en[*PG150]gaged African-American and poor individuals in civil rights-style acts of civil disobedience against the establishment of a polychlorinated biphenyl (PCB) waste disposal site within the county.40 Protestors alleged racist motivations in the disposal of highly hazardous PCB wastes in a predominately African-American rural community, yet regulators refused to intervene.41 In the end, the community residents were unable to stop the establishment of the facility.42 But its graphic images of protestors lying in the roads to block trucks carrying hazardous waste and the disturbing claims of regulatory discrimination galvanized others into action.43

As a result of this incident, a number of studies, including one by the General Accounting Office (GAO) and another by the Commission for Racial Justice of the United Church of Christ, inquired into racial disparities in the correlation between hazardous waste facility siting and the racial make-up of host communities.44 The GAO study found that of four off-site hazardous waste landfills located within the eight-state jurisdiction of EPA’s Region IV, three were located in predominately African-American communities45 even though they only made up twenty percent of the region’s population.46 The Commission for Racial Justice study found that three of every five African and Hispanic-Americans lived in communities with uncontrolled toxic waste sites, and that race proved to be the most significant among the variables tested in association with the location of commercial hazardous waste facilities.47

A 1992 study by the National Law Journal, examining government enforcement of environmental laws at 1177 Superfund toxic waste sites concluded that “[p]enalties under hazardous waste laws at [*PG151]sites having the greatest white population were about 500% higher than penalties at sites with the greatest minority population.”48 The same study also found that for “all the federal environmental laws aimed at protecting citizens from air, water and waste pollution, penalties in white communities were 46% higher than in minority communities.”49 Many other studies, focusing on other aspects of environmental regulation, resulted in similar findings.50

Yet, environmental regulators have not been the only actors connected to discrimination in environmental protection. In earlier times, in keeping with prevailing attitudes, racist attitudes among environmentalists and environmental organizations such as the Sierra Club were also quite common.51 More recently, such issues have focused on the lack of racial minorities on the staffs of such organizations.52 But there have also been complaints about the discriminatory implications of their substantive work, which is directed primarily at issues, such as wilderness preservation, that have had little relevance to minority and poor communities.53 As an extreme example, recent [*PG152]referenda within the Sierra Club have sought adoption of official Club positions that would support curbs on legal immigration, with the publicly asserted rationale of protecting the United States environment from the burdens of additional residents.54 The strong nativist and racist overtones of such efforts were apparent.55 While such “life-boat” attitudes56 might be explained by self-interested concern for the environment over other people,57 the ties of anti-immigration policy supporters to well-known racist groups and the primary focus on immigrants of color showed how disingenuous the environmental justifications were in deflecting claims of racial bigotry.58

Grass roots organizing and growth of the movement around such issues eventually culminated in 1991 in the First National People of Color Environmental Summit and much greater national awareness about the problems of race and equity in environmental protection.59 Since then, the movement has been successful in prompting federal responses at a number of levels. In government, the Clinton Administration issued a Presidential Executive Order directing federal agen[*PG153]cies to consider the environmental justice implications of their decision-making.60 Additionally, EPA established internally the Office of Environmental Justice and created the National Environmental Justice Advisory Council as an outside advisory body.61 Mainstream environmental organizations have also stepped forward by creating projects and offices to address environmental justice concerns.62 Moreover, academic attention to environmental justice issues has mushroomed.63

Of course, concerns about racism and distributional equity have naturally not been confined to domestic environmental issues alone.64 Within international environmental protection efforts, such concerns have been labeled as developing country/developed country equity issues and environmental human rights concerns. These issues have been raised in the context of environmental devastation due to destructive natural resource extraction processes65 or nuclear weapons testing,66 as well as past dispossession of land for the benefit of expatriate settlers during colonial times.67 While these issues fundamen[*PG154]tally involve the same concerns of participation, fairness, and distribution that have been raised by environmental justice activists in the U.S., they have commanded far more attention.68

This raises a puzzling question. Given the greater significance of equity issues in international environmental treaties and other regulatory efforts, why has the domestic environmental justice movement been comparatively unsuccessful in achieving substantive solutions to its complaints? One obvious reason may be attributable to the realities of state sovereignty and global environmental politics. The moral force of equity and fairness arguments by developing countries are backed up by the leverage that sovereign nations may exercise through their ability to withhold their consent and cooperation with international efforts to address environmental problems or other actions desired by developed nations. Thus, resolution of equity and fairness issues have become top priorities for achieving effective broad-based solutions to important global environmental problems, such as climate change. No such leverage is available to domestic en[*PG155]vironmental justice activists as they cannot unilaterally exempt themselves from the applicability of federal environmental regulations.

The recurrent failure of ordinary political processes to provide adequate relief for grievances raising discrimination, distributional equity, and fairness issues, however, has been well understood by the law. Various sources of recourse exist under both statutory and constitutional law.69 The larger question that this raises is why existing domestic remedies to claims of discrimination and distributional inequities have been inadequate.

B.  The Obstacles to Environmental Justice

1.  The Failure of the Existing Law for Environmental Justice

In the past, the courts frequently were venues of last resort for environmentalists and civil rights activists alike. When political and regulatory processes failed them, courts often lent a sympathetic ear. But that has largely not been the case for environmental justice plaintiffs.70

For example, simple application of traditional civil rights tools, such as equal protection claims, have met with very limited success when raised in environmental discrimination suits.71 The primary reason for this failure has been located in the discriminatory intent requirement and the formidable obstacles it presents to succeeding in many civil rights claims.72

[*PG156] In environmental litigation, the difficulties that this requirement presents are readily apparent. A myriad of factors are important in environmental decision-making, ranging from scientific/technical considerations to economic ones.73 Because none alone is dispositive, it is easy to hide discrimination behind a host of technical information. But even more importantly, the discriminatory intent requirement is premised on the existence of a particular, identifiable bigoted actor or a bigoted act that can be blamed for the discriminatory result.74 The requirement purposefully ignores the fact that discriminatory outcomes are frequently the result of processes that cannot be traced to any specific actor or act, but are instead the result of institutions and processes that are biased against racial minorities.75 Such discriminatory biases are naturally submerged by complex regulatory processes.

Administrative agency regulations under Title VI of the Civil Rights Act, extending the prohibition of discrimination by recipients of federal assistance to discriminatory impacts, represent an important exception to the discriminatory intent requirement.76 Yet, even though the promise of such approaches is great, as discussed below, current implementation efforts by EPA raise troubling questions as to the efficacy of such administrative processes.77

Creative tailoring of traditional environmental legal claims to the needs and particular circumstances of environmental justice communities has met with somewhat greater success.78 Their overall effectiveness for the movement, however, has been less than clear.79 For [*PG157]example, even though environmental citizen-suits have allowed private individuals to bring enforcement actions against polluters or against the federal government itself, they have been inadequate for environmental justice communities.80 Citizen-suit provisions do not provide for private damages and thus create no fund out of which litigation costs may be paid by poor plaintiffs.81 Attorney fees may be awarded if the suit is successful.82 As has been pointed out by Eileen Gauna, however, both the delay in the payment of such fees, as well as the inherent litigation risk, significantly reduces the incentives that such fee-shifting provisions provide to attorneys to take on environmental justice claims.83

Provisions requiring compliance with particular decision-making processes, including public participation, have also been identified as potentially useful for environmental justice activists because they provide important opportunities for judicial intervention.84 Because such requirements are typically part of most permitting processes, they hold the promise of meeting widespread complaints that environmental decision-making processes fail to consider local community [*PG158]concerns adequately.85 Increased participation of local communities should theoretically address such concerns and arguably result in a final decision that takes better account of such interests.86 The failing of such processes, however, is that they do not require specific substantive outcomes that courts can enforce. Procedural requirements, while capable of influencing the outcome, can rarely prevent substantively adverse regulatory decisions.

Finally, environmental provisions that require gathering or disclosure of information, such as the Toxic Release Inventory87 or the National Environmental Policy Act,88 have proven useful to environmentalists in responding to regulatory violations or in identifying more general problems of pollution at a facility.89 Such provisions can also be useful by providing evidence supportive of discrimination claims.90 In the end, however, merely facilitating the assembly of proof of environmental injustice cannot change the underlying substantive legal requirements necessary for making out a claim.91 Substantive standards, such as the difficult-to-prove discriminatory intent requirement of most civil rights claims, inherently disfavor environmental justice activists.

2.  The Meaning of Environmental Justice

Apart from pointing to the inadequacy of environmental and civil rights law for the vindication of environmental justice complaints, there have also been less sympathetic views of why the movement has found it so difficult to succeed in substantively changing how regulators address environmental justice issues. These views suggest that environmental justice is about “political opportunism,” jobs, or narrow disputes about discrimination in waste facility siting.92 At their base, [*PG159]such criticisms of the movement assert that it lacks real substantive content.

Of course, environmental justice activists would disagree. While in its early stages environmental justice was understood as a term synonymous with “environmental racism,” suggesting its primary focus on race discrimination issues,93 it has become clear that its focus is much broader than that. Since then it has reached out to poor Caucasian communities and others concerned with environmental degradation. In many respects it is as much a social justice movement focused on environmental matters as the civil rights movement was with respect to the racial subordination of African-Americans. Its concerns have included socio-economic disparities, the exclusion of minorities and the poor from decision-making processes, and the current effects of past discrimination and other past wrongs.94 Implicit is a more general interest in ensuring an environment that promotes the economic health and quality of life needs and desires of racial minorities and the poor.95

These conflicting views should not be surprising. They spring from disagreements about what the environmental justice movement stands for and what its goals are. After all, “justice” is a term that is [*PG160]used in a variety of contexts, ranging from notions of procedural justice to substantive ones, which has different meanings to different people. The concept of environmental justice is no different.96

Still, there are limits to an appropriate understanding of the concept of environmental justice. Because it is a term that has described the goals of environmental justice activists, attempting to study an abstract meaning runs the risk of changing the concept into one divorced from what these activists intended it to capture and what they hoped to achieve. It should be apparent that a conception of “environmental justice” that is different from that of the movement will be significantly less useful, or of no use, in understanding the difficulties of integrating the movement’s concerns into the existing environmental regulatory framework.

But there has been an aspect of the criticisms of the social justice understanding of environmental justice that is more difficult to address. Seeing environmental justice as a symptom of a larger struggle about political disenfranchisement has led activists to pursue a broad strategy of seeking political empowerment and increased participation by the poor and racial minorities in environmental decisions.97 This strategy’s clarity and simplicity has provided the movement with a powerful organizing tool and appears to have been responsible for much of its successes to date. Yet, the simplicity of this process-based focus arguably has provided little guidance to industry and regulators interested in acting responsibly with regard to environmental justice issues and concerned with usable substantive decision-making criteria.

Unsympathetic criticisms in this regard have focused on the perception that environmental justice is an amorphous concept with no clear substantive contours and no clear regulatory goals.98 Most gen[*PG161]erally stated, the argument asserts that, the failure to articulate the contours of environmental justice clearly and specifically is a fatal defect that destroys any basis for reasoned government action by regulators.99 Some critics have maintained that the environmental justice movement has only been able to maintain public support for its goals by dealing in vague generalities, buzz words, and slogans100—that the movement is nothing but rhetorical flair. If forced to articulate more specifics than mere platitudes, ambiguities, and abstract concepts, the movement would simply collapse under its own contradictions and internal inconsistencies.101 In the eyes of these critics, the movement has contributed little to advancing solutions, and may arguably be an impediment to real progress on environmental protection issues for people of color.102

While there may be some truth to some of these concerns, such criticisms prove too much. After all, the faults that such critiques find with the movement also apply to the idea of racial and class justice more generally. Such arguments in essence deny that the civil rights movement and other social justice movements have accomplished significant social change. They ignore the successes of such movements in furthering the ideals of justice. The critics posit, in the end, that our present conceptions of justice are imperfect and that the make-shift tools used to pursue them have undesirable side-effects. That is, of course, a characteristic of ongoing philosophical and legal discourse about the meaning of social justice and its translation into concrete public policy measures.

Perfection and logical consistency remain in the realm of mathematics and other spheres of logical thought, but are unlikely to be achieved in the messy world of real life that the law is designed to handle.103 In that sense, attempts to engage in exercises of logic with [*PG162]regard to environmental justice and its implementation in the law, in the vein of nineteenth century Langdellian legal views,104 demand a degree of articulation, consistency, and perfection of the movement that is not present in any other area of law and public policy. To accept environmental justice as an evolving concept means that any evaluation of it must consider that the imperfections of existing jurisprudential and philosophical frameworks also limit the full articulation of the movement’s ideas. In determining the movement’s success in accomplishing its goals, we must take into account real-world constraints.105

Yet, even given such limitations, it is possible to provide a more specific articulation of the substantive concerns of the environmental justice movement as they relate to environmental regulation. As discussed below, such an understanding focuses on the market failure parallels between discrimination and environmental degradation and the rationality of discriminatory actions.

C.  EPA’s Title VI Guidance

As a remedy to the inadequacies of the existing civil rights and environmental laws in addressing environmental justice concerns, activists have looked to Title VI of the Civil Rights Act of 1964.106 Title VI prohibits discrimination by recipients of federal financial assistance.107 While the Supreme Court has held that Title VI itself only directly reaches constitutionally prohibited, intentional forms of discrimination, it has also acknowledged that Title VI allows federal agencies to promulgate implementing regulations that prohibit actions with unjustifiably disparate impacts.108

[*PG163] The vast majority of states and local governments receive some form of federal financial assistance from EPA for their environmental programs and are, accordingly, subject to the mandates of Title VI. Because EPA’s Title VI implementing regulations109 incorporate the disparate impact standard, they were originally expected to make it significantly easier for environmental justice activists to vindicate their claims.110 Moreover, as a more informal administrative process, this mechanism was thought to be able to provide substantial assistance in investigating and gathering proof.111 The reality has not borne out such hopes.112

[*PG164] EPA originally issued its Title VI implementing regulations in 1973 and revised them in 1984.113 Beginning in the early 1990s, environmental justice groups began to press EPA to make more effective use of its Title VI regulations.114 EPA, however, did not react substantively to these calls until 1998.115 Then, in order to facilitate its handling of administrative Title VI complaints, EPA issued an Interim Guidance setting out a number of procedural and substantive requirements governing its investigations of discriminatory impact complaints.116 At its core, it created a five-step process by which disparate impact allegations were to be analyzed.117 Yet, with all the delay and expectations, only one administrative Title VI complaint was decided on the merits—with an outcome adverse to the complainants.118

On June 27, 2000, EPA issued draft guidance documents to clarify for agencies and citizens the compliance requirements of Title VI of the Civil Rights Act of 1964.119 Set out in two parts, the first directs itself to recipients of EPA financial assistance.120 This “Draft Recipient Guidance” seeks to aid federal fund recipients to avoid Title VI complaints through “a framework designed to improve . . . existing programs or activities and reduce the likelihood or necessity for persons to file Title VI administrative complaints.”121 Its recommendations to recipients include measures regarding staff training, public participation and outreach, disparate impact analyses, intergovernmental in[*PG165]volvement, alternative dispute resolution, mitigation measures, and internal evaluations of Title VI activities.122

The second part, the “Draft Revised Investigation Guidance,” describes and elaborates upon the investigative process EPA is to follow in pursuing complaints alleging disparate impacts from the issuance of a permit by a federal fund recipient.123 The Draft Revised Investigation Guidance includes a detailed procedural time-line setting out deadlines and other timeliness requirements for filing a complaint,124 intermediate decisions on acceptance or rejection of complaints, preliminary findings of non-compliance, voluntary compliance opportunities by the recipient, and appeals.125 In addition, it also sets out various substantive criteria and guidelines it plans to use in reviewing the merits of disparate impact complaints.126 At its heart is the adverse disparate impacts analysis, which is used to decide whether the environmental permit at issue creates an adverse disparate impact cognizable under its Title VI regulations and warrants further administrative action.127

This analytical framework consists of a six-step process that retains all of the elements elaborated upon in the Interim Guidance:128 (1) An assessment of the applicability of the Title VI regulations; (2) a determination of the appropriate scope of the investigation; (3) an evaluation of the actual impacts; (4) a determination of whether the impact is in fact adverse; (5) a demographic characterization of the affected population; and (6) a decision on whether the adverse disparate impact is sufficiently significant.129

[*PG166] The Draft Revised Guidance’s first step seeks to limit the set of applicable permit actions where EPA will pursue the substantive allegations of the complaint.130 For instance, EPA is likely to find its Title VI regulations inapplicable to permit actions that do not involve issues related to stressors identified in the complaint, such as changes of name or mailing addresses.131 EPA is also unlikely to act on complaints involving permits covered by area-specific agreements already determined by EPA to satisfy Title VI requirements, which lead to significant decreases of overall pollution emissions, or that involve permit actions that in fact significantly reduce the pollutants of concern to the complainant, are unlikely to pass this hurdle in the analysis.132

The second step defines the scope of the investigation by focusing on which stressors, sources of stressors, and/or impacts have been appropriately raised by the complaint as implicating EPA’s Title VI regulations.133

The third step then seeks to establish a causal link or association between the alleged discriminatory act and the alleged discriminatory impacts.134 Such a determination is to include an inquiry into plausible mechanisms and exposure routes between the impacts and the source of stressors as well as attempts to quantify such potential impacts.135 In doing so, EPA expects to examine the various causal links to the impacts, the risks that various exposures and stressors create, and the toxicity and concentration levels of particular stressors.136

The fourth step of EPA’s Draft Investigation Guidance calls for an assessment of whether the impacts are in fact adverse as an environmental or human health matter.137 Such a determination is made by [*PG167]reference to various benchmark values provided by statutes, EPA regulations, or EPA policy.138 In general, exposures must exceed an established human health or environmental threshold value in order to satisfy this criterion.139 While EPA refers to this determination as an assessment of whether the impact is significantly adverse, the significance referred to here is not the same as the statistical or legal significance raised in step six.140

The fifth step calls for the identification and characterization of the population affected by the permit action in terms of race, color, and national origin.141 It also requires a determination of whether a disparity exists between the affected population and appropriate comparison populations.142 Because of differing exposure routes, various affected populations may be identified depending on the particular impacts raised in the complaint.143 Assessments that are made include comparisons between the impacts borne by these demographic populations and others, the demographic make-up of the affected population, and the average impacts and range of impacts.144

The sixth and final step examines whether the disparity is legally significant.145 While this step appears to focus primarily on statistical measures of significance, it also evaluates associated demographics and types of impacts.146 For example, demographic information that EPA examines here includes affected population size, overall demographic composition, and the proportion of the jurisdiction’s population in the affected population.147 Considerations related to the impacts and stressors themselves include the extent to which adverse impacts exceed significance thresholds, the severity of impacts, and the frequency of their occurrence.148

[*PG168] In proceeding through this analysis, EPA is to accord “due weight” to information submitted by recipients related to the disparate impact analysis.149 Such information could provide demographic information, analyses of environmental impacts, and other related evidence.150 In essence, “due weight” constitutes a means by which EPA extends some deference to the regulatory efforts of state and local government recipients similar to the deference EPA extends in other environmental regulatory programs.151 To ensure the reliability of the information submitted by states and local government recipients, however, such deference is conditioned on the relevance of the evidence, the validity of the methodology, the completeness of the information, the consistency of the methodology and the findings, and uncertainties in the input data and results.152 In the context of area-specific agreements, which may show reductions or elimination of disparate impacts or provide for a plan to do so, this deference could lead to a closure of EPA’s Title VI investigation.153

A finding of a significantly adverse disparate impact, however, does not mean that the complainant has prevailed.154 Upon such a finding, recipients have the opportunity to provide rebuttal evidence.155 If the rebuttal evidence does not change the finding, recipients may also justify their permit action notwithstanding the adverse disparate impact.156 Thus, significant adverse disparate impacts may be permissible if they are “reasonably necessary to meet a goal that is legitimate, important, and integral to the recipient’s institutional mission.”157 This can include interests in economic development arising out of a permit action “if the benefits are delivered directly to the affected population.”158 Yet, if a less discriminatory alternative to the permit action exists, such an alternative would rebut the justification itself.159 After all, a less discriminatory alternative that still meets the [*PG169]needs addressed by the discriminatory action, such as practical mitigation measures, would make the challenged action unnecessary.

It is only at this point that EPA’s Title VI process moves into the remedies phase.160 EPA may seek the recipient’s acquiescence to the finding and its voluntary compliance with its proposed remedial measures.161 If voluntary compliance is not possible, however, EPA may also pursue more coercive measures, such as commencing formal proceedings “to deny, annul, suspend, or terminate EPA assistance.”162 In such an event, the recipient may seek review and appeal of the decision through EPA’s administrative adjudicative process.163

By providing a detailed framework, the two-part Draft Revised Guidance, EPA has sought to clarify many ambiguities found in the Interim Guidance.164 Yet, in spite of the increased detail, the Draft Revised Guidance has not resolved many of the uncertainties in how EPA will address future Title VI complaints.165 These uncertainties have left EPA with considerable flexibility and discretion.166 They also make it somewhat difficult to predict how helpful the Draft Revised Guidance will be in facilitating the resolution of Title VI complaints in a fashion more favorable to environmental justice groups. Nevertheless, a critical evaluation, based on the approaches and methodologies used in the Draft Revised Guidance, is possible and provides important insight into its prospects.

II.  EPA’s Title VI Guidance and the Tensions Between the
Regulatory Premises of Environmental Law and Civil
Rights Law: The Form of Environmental Justice

Similar to the controversy surrounding EPA’s Interim Guidance, serious criticisms were again raised by the environmental justice [*PG170]community with respect to the Title VI Draft Revised Guidance.167 That should not have been surprising. Many of the difficulties that EPA has faced in addressing environmental justice more generally are traceable to the different premises about the role of government intervention in solving environmental justice problems—environmental regulators bringing with them understandings based on the traditional environmental regulatory system, and environmental justice activists viewing the issues based on perspectives shaped by civil rights law.168 In the Title VI context, these unresolved differences are especially pronounced since EPA is explicitly seeking to merge the mandates of a civil rights statute into its environmental regulatory framework.169

Viewing the difficulties in this fashion may seem odd for many since it calls for a comparative examination between environmental law and civil rights law. After all, the two systems appear to address fundamentally different subject matters—the management and preservation of the quality of the human environment as opposed to racial equality and individual rights. Moreover, when one thinks of civil rights law in action, one thinks of judicial intervention, which is primarily associated with the ad hoc resolution of particular disputes among private individuals or entities. Environmental law appears instead to be primarily concerned with the administration of public programs that affect many or all of the citizenry beyond the immediate parties to the dispute.170 Important congressional statutes exist with regard to civil rights and environmental protection.171 However, the interstices of civil rights law are filled primarily by courts through case-by-case adjudication, rather than by administrative regulation. The predominance of courts and common law adjudication has thus [*PG171]characterized much of civil rights law.172 Thus, comparing environmental law to civil rights law might seem like comparing apples to oranges.

Some scholars, such as Cass Sunstein, however, have drawn the parallels with little hesitation.173 In fact, the environmental protection system’s common law roots in trespass and nuisance doctrines should give some indication that dismissing the common law as a regulatory regime would be overly simplistic.174 Thus, judicial adjudication and the common law have been systems for the creation of public policy just as administrative agencies and, more generally, the legislature have been.175 When congressional legislation sets broad policy objectives and few specific standards and rules, common law adjudication is more similar to the tasks of administrative agencies: filling in the interstices and ambiguities of congressional statutes.176 Judicial law-making is then confined within those broad policy and legal mandates.

The true distinction between courts and legislatures “is not that courts interpreting statutes do not ‘legislate’ at all, but that, in comparison with legislative assemblies, [courts] perform their function within a different institutional framework, by different procedures, and with a different kind of participation accorded to those who are affected by their decisions.”177 In the end, even though the operational modes of judicial adjudication and administrative decision-[*PG172]making may be different, their overall function is the same: to serve as mechanisms for social ordering among people, and between their government.178

Considered in this light, an examination of the different institutional frameworks can provide much insight into serious problems raised by EPA’s Title VI Draft Revised Guidance and its ability to address environmental justice complaints.179 In particular, it shows how different premises about minority protection, the significance of incommensurable values, and the scope of regulation have created tensions that threaten to undermine the effectiveness of EPA’s efforts with regard to environmental justice.

A.  The Primary Beneficiary of Regulation: Protecting Minorities and the Larger Collective

1.  Protecting the Larger Collective from Environmentally Harmful Individual Actions

One characteristic of environmental law has been its distinctly majoritarian orientation.180 In large part, this orientation can be attributed directly to the market failure understanding of environmental degradation.181 Under Garrett Hardin’s explication of the Tragedy of the Commons, the quintessential concern of environmental regulation has been with actions by individuals that, while advantageous and beneficial to that particular individual, are harmful to the [*PG173]community as a whole.182 Because everybody has access to and use of the commons, the failure of government to intervene with regulations results in the overuse and degradation of the commons.183 The regulatory consequence has been that environmental law is primarily directed at protecting the collective from the irresponsible or selfish actions of individuals or small groups.184

Modern environmental statutes reinforce the majoritarian focus forcefully through their design.185 Virtually none provides for recovery of benefits accruing to any individual.186 Awards of private damages are not permitted.187 Even the citizen-suit provisions of the environmental statutes follow in this mold.188 They create an important role for private actors in the environmental regulatory scheme by allowing individuals to step into the enforcement shoes of the government.189 As private attorneys general, citizens may in this fashion enforce the environmental laws against violators, sometimes even against the government itself.190 Any penalty monies that are paid by a defendant, unlike punitive damages, must be remitted to the Federal [*PG174]Treasury.191 Furthermore, any judicial consent decrees that are entered into in settling citizen-suits are reviewed by the federal government to ensure that the decree is in the public interest and not the result of self-dealing by the litigants.192

The underlying majoritarian premise is also apparent in other important statutory tools that have sought to protect environmental interests. Thus, approaches to environmental regulation that have sought to provide for open decision-making and explicit consideration of environmental interests,193 as well as information dissemination about pollution and toxics,194 rest on the assumption that regulators and polluters will be more responsive to and take better care of environmental interests if they can be held accountable by political processes. Utilizing and enhancing political processes, of course, promotes majoritarian decision-making.195

Finally, there have also been institutional aspects that have contributed to this majoritarian focus.196 Chief among them is the reliance on administrative agencies to address environmental problems rather than courts.197 The greater prominence of agencies over courts is a consequence of the general necessities of dealing with modern social problems as well as the specific technical expertise requirements of managing environmental problems.198 Administrative agencies are able to develop the necessary technical skills and expertise and, at the same time, integrate many other non-legal considerations, such as social and economic factors, into their decision-making.199 [*PG175]And since they are unhampered by the straight-jacket of ad hoc, formal judicial process, they can approach problems with a persistence and a focus that is necessary to develop rules on a systematic basis. As a result, the outcomes are best for all of society, rather than just the litigants.200 Thus, administrative processes promote the interests of the entire society rather than particular individuals or small groups.

2.  Protecting Racial Minorities from Discrimination and Exclusion by the Majority

Environmental law’s focus on protecting the larger collective is entirely reversed in civil rights law. Its institutional focus on racial minorities has led it to promote protections of minorities against discrimination, exclusion, and other unfair treatment by the majority. By its nature, civil rights law is largely counter-majoritarian in character.201

Its institutional structure is also supportive of this focus. Civil rights law has not seen the whole-sale technocratic regulatory transformation that has occurred in environmental regulation. To be sure, Congress has enacted a series of important federal statutes that have sought to federalize much of this area of the law.202 It has not, however, engaged in the large-scale delegation of congressional authority to modern expert agencies as it has in the environmental context.203 Instead, regulation in the civil rights context and the elaboration and interpretation of statutory rules continues to occur primarily through case-by-case adjudication by courts—law making and regulation in the [*PG176]traditional common law mold.204 Judges, of course, by virtue of their professional traditions and life tenure in the case of the federal judiciary, have much greater insulation from normal political pressures than administrative agencies. Given that the purpose of the civil rights laws is to protect minority groups from majority oppression, counter-majoritarian institutions, such as the courts, are more appropriate guardians of minority interests than institutions that are subject to political control, such as administrative agencies.205

3.  The Title VI Draft Revised Guidance’s Reliance on Majoritarian Administrative Agency Processes to Protect Racial Minorities

Given these antithetical approaches, it is not surprising that environmental justice activists have blamed the operation of environmental laws themselves as the cause of environmental injustice.206 To the extent that environmental decision-making is designed to advance the interests of the majority, it is natural for the minority to lose out when its interests come into conflict.207

It should be noted that the problem of minority protections, while similar, is not the same as the problem of under-representation of broadly-held, unorganized, and diffuse interests within the administrative agency processes.208 As Richard Stewart once described it, modern administrative agency processes are more responsive to organized interests, and frequently also biased in favor of regulated interests because of their constant interactions and relationship with [*PG177]agency staff.209 At its most extreme, capture of an agency by its regulated interests may result.210 The agency becomes more concerned with protecting the interests of the entities that it is to police and regulate under its legislative mandate than with protecting the public interest.211

The difficulties that agency decision-making raises for minority groups appear to parallel such agency process failures.212 Yet, the parallel is misplaced. The premise of under-representation of broadly-held and diffuse interests is that agency decision-makers do not adequately take such interests into account and thus undervalue the weight of such interests in their decision-making.213 The administrative process has failed to achieve the correct balancing of interests that provides the greatest benefit to all; in other words, the agency has made an error.214

The opposite is actually being asserted by environmental justice advocates. They have claimed that EPA has done too good a job of maximizing social utility at the expense of minority interests, interests that by definition have a lesser weight within such regulatory analysis. Thus, process safeguards, such as in the spirit of procedural due process protection or improved representation of interests, are unlikely to address such problems significantly.215 Instead, effective remedial actions will likely require substantive change in environmental decision-making criteria.216

One need not doubt EPA’s sincerity with regard to environmental justice in order to be concerned about such systematic biases. As others have pointed out, scientific uncertainty remains in much of EPA’s work, and alternative analytical approaches can easily be used to justify greatly contrasting regulatory outcomes.217 Thus, environmental justice complaints against a project might easily be disposed of through technical analyses and investigative results skewed in one di[*PG178]rection or another. That may be especially true if the project involves a multi-million dollar industrial facility supported by the local congressional representative that is expected to bring much needed tax revenue, jobs, and economic development to the surrounding community.

This recognition points to a fundamental problem with regard to the majoritarian premise of EPA’s Title VI Draft Revised Guidance. As the Guidance states, the administrative process for addressing Title VI discrimination complaints is purely an exercise of EPA’s investigative and enforcement discretion.218 The Guidance itself is thus only an official description of how EPA plans to utilize that discretion:

It is important to note that EPA does not represent the complainants, but rather the interests of the Federal government, in ensuring nondiscrimination by [federal funding] recipients. The investigation of Title VI complaints . . . should be viewed as OCR [EPA’s Office of Civil Rights] following up on information that alleges EPA funds are being used inappropriately . . . . In addition, because the Title VI administrative process is not an adversarial one between the complainant and recipient, there are no appeal rights for the complainant built into EPA’s Title VI regulatory process.219

The significant disadvantages of such a scheme for complainants should be clear. For instance, the lack of a specific and assured role for complainants within the administrative process once it has commenced is remarkable, given that one of the main complaints of environmental justice communities has been that they have traditionally been excluded from environmental decision-making processes.220 Complaining communities may of course provide EPA with information and help move the investigation along,221 but there is no recourse if EPA makes an adverse decision.222 In contrast, federal fund recipi[*PG179]ents under investigation have the full panoply of administrative appeal and judicial review remedies available.223

The troubling preference for majoritarian processes also arises with respect to EPA’s attempts to shunt complaints to informal and alternative dispute resolution processes.224 While such processes have been heralded as promoting less costly and speedier settlements of disputes, they also lack the protections that judicial and formal adjudicative proceedings provide a weaker party against the stronger one.225 Such informal proceedings perpetuate the unequal bargaining positions that minority communities and the poor find themselves in, which lead them to bring Title VI complaints in the first place.226 Utilizing a process that is plainly subject to political control and political pressure by industry interests is simply insufficient for interests that require counter-majoritarian protections.227

4.  The Role of States in EPA’s Title VI Draft Revised Guidance

The majoritarian premises of environmental law also point to the problematic role of state and local governments within the Title VI Guidance. Federal environmental statutes have created strong cooperative relationships between federal agencies and state and local governments. Oftentimes referred to as environmental federalism, [*PG180]federal regulations cede significant control over environmental protection, via cooperative arrangements, to states and local governments.228 For example, both the Clean Air Act and the Clean Water Act look to states as the primary entities to set standards, administer, and enforce specific regulatory programs appropriate to the characteristics of their jurisdictions.229

This close cooperative relationship has historical roots. Traditionally, regulation of the environment, including pollution and natural resources, was a matter almost exclusively the subject of state common law.230 It was only through a gradual evolution of increased federal intervention, beginning with federal funding and other assistance for state and local government regulatory efforts and culminating in direct federal regulation, that the modern environmental regulatory system arose.

But there are also important functional and practical considerations for continued reliance on state and local governments in addressing environmental degradation problems. With an enormous range of activities that contribute to pollution and environmental regulation, the federal government simply does not have the resources to supervise and take responsibility for all of the regulatory actions needed to protect the environment.231 Since many environmental problems have primarily local effects, local and state government entities will often have faster and better access to information about pollution problems than the federal regulators.232 Cooperation with state and local governments in protecting the environment is simply necessary to achieve an effective system.233

[*PG181] The relationship of the federal government to states and local government with regard to civil rights has been fundamentally different. Civil rights law has been based on the premise that the federal government must be suspicious of state and local government actions in regard to race.234 After all, adoption of the Reconstruction Amendments to the Constitution and passage of federal civil rights legislation occurred in response to state-sanctioned or state-mandated discrimination against racial minorities.235

That is not to say that states have been entirely missing from the implementation and enforcement of federal anti-discrimination laws.236 In fact, states may and frequently do, as in the environmental context, provide greater protections under their own legislative authority.237 It seems hardly appropriate, however, for the federal government to vest trust in entities that it is also obligated to strictly police. The result has been that the cooperative scheme, such as “delegation” of substantive regulatory authority, and the deference that is accorded to state regulatory actions in the federal environmental scheme, is largely missing in the federal civil rights scheme.

Increasing historical distance to segregation and other governmentally-sanctioned forms of discrimination does raise the question whether such distrust is still warranted. Especially in a context where [*PG182]cooperation by the federal government with state and local entities has occurred successfully for quite some time, one might ask whether such cooperation might also occur successfully with regard to civil rights. However, even conservatives, such as Justice Scalia, have emphasized that distrust of states and local governments continues to be justified not only as a matter of Fourteenth Amendment history, however, but also as a matter of social reality and governmental theory.

[T]he record shows . . . that racial discrimination against any group finds a more ready expression at the state and local than at the federal level . . . . The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.238

It is this tension that underlies the problem of state and local government participation in the Title VI administrative complaint process of EPA. State and local governments have sought some amount of deference or protection from EPA Title VI administrative complaints if appropriate state environmental justice programs are in place.239 While initially indicating that it would not extend any deference to states as part of its Title VI process,240 its Draft Revised Guid[*PG183]ance accords “due weight” to analysis and data provided by states related to a disparate impact analysis as well as area-specific agreements that are designed to eliminate or reduce adverse disparate impacts in those areas.241 That is, of course, problematic if the state and local government is the target of a Title VI disparate impact claim.

EPA’s scope of inquiry with regard to disparate impacts242 is equally problematic. The Guidance largely limits the scope of considered impacts and stressors to those that “are within the recipient’s authority to consider, as defined by the applicable laws and regulations.”243 This seems to imply that Title VI imposes no independent anti-discrimination requirements outside of the recipient’s legal authority, a proposition that seems to run counter to most civil rights law.244

Of course, there is considerable ambiguity as to whether “applicable laws and regulations” only means state laws or also includes other federal laws, such as Title VI itself.245 The statement is, at best, a tautology that recipients will have to consider all impacts and stressors that Title VI requires them to consider—essentially that recipients must comply with all laws that apply.246 In the overall context of the Guidance, however, it is difficult to interpret this language as anything other than EPA’s intent to focus on state laws and regulations alone.247 As such, relying on state law to define the scope of federal civil rights protection would amount to an abdication of EPA’s federal responsibilities under Title VI. After all, such reliance would leave decisions about what impacts to consider within the discretion and the manipulation of the states. At its worst, it could result in narrowly defined en[*PG184]vironmental decision-making criteria that effectively foreclose any successful assertion of disparate impact claims.248

B.  The Role of Quantifiable and Intangible Values in Regulation

The inadequate consideration of incommensurables within environmental regulation has presented another obstacle to better incorporation of environmental justice concerns.

1.  Incommensurables in Civil Rights Law

Intangibles and incommensurable values have broadly pervaded civil rights law. That is in part because of the broad role that courts have played in this area of the law. Their institutional limitations, including limited resources and narrow jurisdiction, have made them dependent on litigants to bring matters before them and to present the issues.249 As institutions operating in a context of ideals, simplified facts, and limited issues, their decision-making processes have focused on principles and the analysis of rights.250 Naturally, these institutional limitations have made courts less able to deal with the quantifiable values and considerations of scientific and technical issues than with incommensurables.251 Their competence in rights, principles, and other incommensurables seems almost useless in an area where empirical study is crucial, and the decisions themselves are practically judged by the quality of the outcomes as opposed to the quality of the process.252 While courts may be empowered to appoint scientific experts to evaluate technical issues,253 that is a poor substitute for the [*PG185]institutionalized technical expertise and resources of administrative agencies.254

Yet, there are also considerations specific to civil rights law itself. For instance, the blameworthiness that anti-discrimination law assigns is not dependent on any particular harmful outcome.255 Rather, it is the act itself that is morally tainted by the discriminatory motive and that is therefore wrong.256 In contrast, actions that have discriminatory effects, but are not the direct result of discriminatory motives, generally do not violate anti-discrimination principles.257

That is not to say that quantifiable economic impacts and other consequences of discrimination are of no consequence for racial minorities. After all, economic, educational, housing, and other opportunities arguably affect vital and basic interests in survival and shelter, which discrimination significantly impairs.258 It would be difficult to argue that these concerns were not also important to civil rights laws.259 Nevertheless, the primary focus on equality and other incommensurables has pervaded civil rights law at least since Brown v. Board of Education.260

2.  Scientific and Economic Analysis in Environmental Regulation

In contrast, the federal environmental regulatory framework has relied heavily on quantifiable considerations in agency decision-making.261 Technical/scientific standards ensure that pollution emissions are limited262 or that the harmful environmental effects of [*PG186]chemicals such as pesticides stay within acceptable limits.263 More importantly, scientific and technical analysis have allowed the environmental regulatory system to adapt to changing scientific knowledge and understanding of the environment as well as to anticipate unknown risks and harms.264

At the same time, the persuasive influence of market failure explanations for environmental problems and the utilitarian focus on economic efficiency considerations have compounded the influence of quantifiable considerations.decision-making265 These economic concerns have shaped modern environmental statutes through a diversity of regulatory mechanisms, with approaches ranging from the use of market mechanisms,266 to command-and-control regulations,267 to environmental quality standards.268 The result has been that no particular value can be identified as uniformly pervading environmental regulation other than the importance of compliance and environmental improvement itself. The main question is, “How well does a regulatory approach protect the environment and at what cost?” Little is vested in either the particular regulation itself or the process of arriving at the desired goal.269

[*PG187] In a sense, reliance on science and economics has thus facilitated environmental protection and regulation not only by making it easier to prove the need for regulatory action, but also by providing a tool to limit the necessary remedial action so that it does not impose too great a burden on industrial development and other economic activities.

3.  The Failing of Technical Approaches for Environmental Justice

Even though the reliance on quantifiable data for decision-making has improved environmental regulation in many respects, it has also had a subversive influence. Because quantifiables tend to be impressive easy to grasp and identify, they overpower and dominate the unquantifiable aspects of the regulatory decision-making process. They obscure the role of the unknown and the uncertain,270 as well as [*PG188]the importance of those values, such as ethical and distributional considerations, that cannot be measured.271 The overall outcome is one that is frequently warped and suspect, but nevertheless possesses the mantle of precision and objectivity.272

Yet, public policy is shaped as much by public values and ideals as by quantifiable science and utilitarian considerations. That has been especially true outside of the environmental context.273 Just because the government might make millions of dollars by euthanizing severely retarded individuals and harvesting their organs for sale to transplant patients does not make such actions societally or legally acceptable. The argument is not enhanced by the assertion that this method would be an economically efficient way to conserve scarce health care resources for more economically productive citizens while, at the same time, saving the lives of others. The idealism expressed in the Supreme Court’s anti-discrimination jurisprudence and insistence on color-blindness provides ample illustration.274

This failing has been especially serious for environmental justice claims.275 Industrial plants or waste facilities might bring jobs, tax dollars, and much needed economic revitalization to depressed inner-city areas.276 Given the failure of economic analysis to capture many values relevant to community residents, it is not at all clear whether in any [*PG189]individual case such increased financial and economic benefits outweigh the increased health risks, odors, noise, traffic, and otherwise lower quality of life that usually accompany such facilities.277 While issues of equality, autonomy, and community preservation frequently do not enter into environmental decision-making, they are nevertheless important concerns for environmental justice communities. Attempting to put price tags on such values is simply nonsensical; their inclusion in traditional cost-benefit analysis is not possible in a meaningful fashion.278

This difficulty indicates that EPA’s decision to import more quantitative analysis, such as risk and exposure assessments, toxicity-weighting, statistical analysis, pollutant concentrations, and ambient air quality standards, into its Title VI adverse disparate impact analysis may not necessarily help Title VI claimants.279 While statistical studies have been helpful in establishing a link between race and the siting of waste facilities,280 statistical evidence has not been a panacea for activists.281

[*PG190] For example, just as general causation is only one important element of a toxic tort claim,282 statistical analysis is not the end of the judicial inquiry.283 A statistically significant correlation to race is only supporting evidence of discrimination.284 It generally does not in itself provide conclusive proof that discrimination occurred in any particular instance.285 As a result, statistical evidence is inadequate to make an environmental discrimination claim by itself.286

At the same time, statistical evidence can also prove too much. Even if there are no statistically significant disparities in the siting of hazardous waste facilities in racial minority and non-minority communities or other allocations of pollution or environmental burdens, that does not necessarily mean that discriminatory considerations did not enter into particular decisions.287

More disconcerting, statistical methods of proof provide a deceptive sense of definitiveness.288 In such analytical approaches, intangible and unquantifiable factors, such as aesthetics, odors, and other quality of life considerations, are “ignored or understated.”289 The result is that “entire problems tend to be reduced to terms that misstate their underlying structure and ignore the ‘global’ features that give them their total character.”290

EPA’s Draft Revised Guidance fully bears out these concerns.291 There, it states that:

[D]ata may not be readily available for many types of impacts, or where available, may not be relevant to the appropriate geographical area. In some situations, the data may be [*PG191]insufficient to perform an analysis. [EPA] expects to use available data in a hierarchical fashion depending on their completeness and reliability, placing greatest weight on the most reliable.292

Much of the data that might help Title VI complainants to prove their cases of disparate environmental burdens or overall adverse effects, isunlikely to be easily obtainable or even exist. The resulting reality will be EPA’s primary reliance on quantitative information that it already possesses.293

It is unlikely that a complaint process directed primarily at analyzing quantifiable factors will adequately and fairly judge the many intangible concerns, including aesthetic, dignity, and social impacts, complained of by environmental justice communities.294 After all, it is all too easy to think that “[i]f you can’t count it, it doesn’t exist.”295 The accustomed dependence of agency staff on hard, quantifiable evidence and its illusory authoritative power will prevent a deeper understanding of discrimination and the concerns of environmental justice.296

[*PG192]C.  The Limits of Regulation

Finally, failure to resolve the conflicting understandings about the appropriate limits of regulation have also affected EPA’s ability to address environmental justice issues.

1.  The Reach of Environmental Law and Civil Rights Law

Because of the interconnection within the environment and the pervasiveness of pollution sources throughout society, from personal trash and auto exhaust to industrial emissions, pollution abatement and prevention have required comprehensive approaches to environmental regulation.297 The federal environmental statutes, with all of their imperfections, represent an important step in the implementation of this approach at a national level.298 Extensions of such efforts have prompted international programs, such as treaties protecting the ozone layer,299 and attempts to change public awareness and moral attitudes about pollution, consumption, and resource conservation.300 The administrative regulatory structure of environmental law has reinforced this comprehensive approach.301

In contrast, reliance by civil rights law on judicial adjudication as the primary means of regulation has emphasized much narrower lim[*PG193]its to the exercise of governmental power.302 Case-by-case development of the law, the counter-majoritarian nature of judicial power, as well as the reliance on principles and process considerations as the criteria for decision-making, rather than particular empirical evidence and outcomes, have created a tendency in the courts to narrowly confine their interventions.303 Concerns about maintaining the distinctive role of the courts vis--vis the legislature has also led them to exercise their authority sparingly.304

But there have also been limitations that have arisen out of the substance of civil rights law itself.305 Under equal protection doctrine, most civil rights statutes have been construed to reach only intentionally discriminatory actions, thus imposing significant limitations on the ability of courts to remedy the effects of discrimination.306

Another important limitation has been the focus of much civil rights law on discrimination connected to government actions or other aspects of the public sphere.307 This distinction is not just an artifact of the Fourteenth Amendment’s state action language.308 It is also a significant feature of many congressionally enacted anti-discrimination statutes associated with varied non-governmental, private sector functions, such as employment, housing, or private pro[*PG194]grams receiving federal funds.309 The implicit corollary to this focus has been that discrimination in a private setting is not a major governmental concern.310

The reach of civil rights law has also been significantly limited by the requirement that race-based remedies be permissible only to the extent that they are directly co-extensive with the proven violation.311 Within the school desegregation cases, the extent of the legal viola[*PG195]tion became the relevant measure for the courts’ remedial authority.312 Antithetical to how environmental regulation approaches its problems, courts were not permitted to impose comprehensive solutions if doing so would exceed the scope of the proven prior constitutional violations.313 The result has been to drastically limit the ability of courts, and in the end also other parts of government, to redress the effects of past discrimination and on-going institutional or diffuse forms of discrimination.314

The fundamental difficulty with the limited reach of civil rights law is that it ignores the fact that discrimination, much like environmental degradation, is an aspect of life that is pervasive throughout society.315 It is the result of a web of interrelated public and private [*PG196]causes in which private prejudice and private discrimination can be just as important as discrimination in its public manifestation.316

For instance, even though federal and state government actions have actively contributed to racially segregated housing patterns in the past,317 the importance of private actions such as “white flight” cannot be denied.318 Furthermore, consistently lower property values in racial minority neighborhoods compared to Caucasian neighborhoods have been attributed to individually discriminatory desires not to live in racial minority neighborhoods.319 Such patterns of private and public contributions to discrimination appear in many other areas, ranging from government contracting to employment to consumer transactions.320 Limiting civil rights protections to the public sphere thus leaves important sources and manifestations of discrimination unaddressed.321

[*PG197]2.  The Limited Reach of EPA’s Title VI Draft Revised Guidance

EPA’s disparate impact regulations under Title VI were expected by environmental justice activists to circumvent the problem of the limited reach of most civil rights law by focusing on discriminatory effects rather than discriminatory motivations.322 Applying a comprehensive regulatory approach to such issues should ultimately help environmental justice complainants vindicate their claims.

Yet, in evaluating disparate impact allegations under its Draft Revised Guidance, EPA will focus narrowly only on sources, stressors,323 and impacts that the fund recipient may consider under its decision-making authority, presumably state law.324 Even the consideration of such stressors and impacts will be largely limited to those that are quantifiable in nature and that can be causally linked or otherwise directly associated to the discriminatory permit action.325

Such a limited approach to discrimination issues may be in keeping with civil rights law doctrines that have sought to limit remedies to proven violations.326 Here, that would arguably be some violation of state law.327 According to such reasoning, only if the recipient could have considered certain impacts and stressors under its state law [*PG198]authority could there be a violation, and also a remedy, under EPA’s Title VI regulations.328

The problem with such an approach is that Title VI is a civil rights statute that seeks to reach discrimination much more generally.329 After all, its goal is not only to ensure that racial minorities not “be subjected to discrimination under any program or activity receiving Federal financial assistance,” however narrow one might construe the notion of discrimination, but also that they not “be excluded from participation in [or] be denied the benefits of” such programs.330 Title VI is thus broadly concerned with inequality in the distribution of benefits of federally funded programs.331

Even if a fund recipient’s authority is broad enough to consider many concerns relevant to environmental justice activists, EPA’s actual analysis is still likely to prove disappointing. As discussed above, most of the Guidance relies on quantitative analysis, such as risk and exposure assessments, toxicity-weighting, statistical analysis, pollutant concentrations, and ambient air quality standards to determine whether a disparate impact exists.332 Given EPA’s intent to base its analysis mostly on complete and reliable data,333 most impacts and stressors for which little quantitative information is available would be given little weight.334 And since there are no benchmarks for community preservation, stigma, or even equality, considerations such as these will simply be ignored.335

Finally, and no less significantly, the Draft Revised Guidance seeks to analyze the discrimination claims by reducing them to their individual and discrete components—connecting particular impacts with particular causative factors so that a technical analysis can then quan[*PG199]titatively judge whether there is a disparity or inequality. Doing so might allow one to add up the individual disparities. Such reductionism, however, will not be able to capture the larger picture of inequality and discrimination that is made up of individually small and insignificant instances of unfairness and inequity.336

In the end, the analysis attempts to adopt a traditional model of common law tort causation within which particular effects can be directly linked to actors or actions that can then be described as the cause for these effects. This type of thinking is not surprising given that it characterizes much of civil rights law.337 But it is also the type of legal reasoning that has been abandoned by modern environmental regulation as unworkable in solving the problems of modern society.

Even though regulation of environmental harms was historically rooted in common law tort doctrines such as negligence, nuisance, and trespass,338 the failure of the common law in dealing with modern environmental degradation problems led Congress to enact the modern environmental regulatory framework.339 But if the common law system was unsuccessful in solving modern industrial pollution problems, then it should come as no surprise that the traditional common law methodologies embodied in the civil rights laws have failed the environmental justice movement in vindicating its concerns. Environmental justice activists’ interests in race and equity may be “new” [*PG200]to environmental regulators; however, the obstacles encountered in the vindication of environmental justice claims are not.340

Thus, EPA’s Title VI Guidance leaves regulators with a compartmentalized view of the causes and effects of the problem rather than an understanding that sees them as interconnected in nature and as manifestations of larger societal problems.341 For instance, the failure to identify the cause of discrimination with particularity leads to a finding that there is no redressable discrimination—in effect that there is no discrimination or inequality at all.342

In many respects, this recognition shows why EPA’s Title VI Guidance, without even considering its specific content, is unlikely to succeed. Ultimately, the Guidance sets up a mechanism for EPA to respond to specific complaints of disparate impacts connected to a specific permit.343 Its understanding of the problem is derived through the lens of the permit criteria and limited by the specific permit.344 It is an approach that does not easily accommodate larger contexts of inequities and historical discrimination.345 Yet, perni[*PG201]ciously, it effectively allows discrimination and inequities to be blamed on such larger patterns of historical and societal discrimination while avoiding the tough actions that would need to be taken to solve them.346

III.  Finding Common Ground: The Substance of
Environmental Justice

The problem of the pervasiveness of the presence and effects of discrimination and its contribution to environmental inequities also suggests how EPA might make more effective use of Title VI to address environmental justice claims. Rather than focusing only on efforts to adjust the form of the regulatory mechanisms, a closer examination of the substance of the problems that EPA is charged with addressing would prove fruitful. Such a substantive approach to Title VI’s role in addressing discrimination has found only limited practical implementation in modern civil rights law.347 It is uniquely suited for EPA, however, in light of its role within the National Environmental Policy Act (NEPA) and its pervasive regulatory approaches.348

A.  The Rationality of Environmental Degradation and
Discriminatory Behavior

Considering the regulatory frameworks that govern environmental protection and civil rights provides important insight into how government officials and others having to work within these systems have understood these problems. Yet, precisely because of that perspective, this analysis also offers an incomplete understanding of the problems of discrimination and environmental degradation.349 These perspectives are shaped as much by the realities of the social problems they are charged with solving as they are by larger political and legal ideologies.350 At closer examination, both types of social problems share important similarities with regard to the rational impulses that result in discrimination and environmental degradation.351

[*PG202]1.  The Market Failure Basis of Environmental Degradation

Garrett Hardin’s Tragedy of the Commons understands environmental degradation as a form of market failure—the result of rationally self-interested actions by individuals which ultimately cause harm to the community as a whole.352 Because of the importance of rational behavior in contributing to environmental degradation, the generally accepted conclusion is that simple education or moral exhortation about the harm to the general community is insufficient to induce individuals or companies to change their polluting behavior.353 In the end, rational self-interest usually prevails.354

The prisoner’s dilemma problem, of which the tragedy of the commons is one specific instance, demonstrates this easily. In this dilemma:

[T]wo prisoners . . . are separately interrogated about a crime. The two were the only witnesses, so if they both refuse to testify, the worst that can happen to them is a one-year conviction for illegal possession of firearms. However, a clever prosecutor approaches each prisoner and offers him a proposition: “If you confess and testify against your partner, he’ll get life but you’ll go free; the only hitch is that if you both confess, you’ll both get a sentence of 6 years for armed robbery. I should tell you that I’m offering the same deal to your partner.”355

Assuming that the game is played only a single time, and assuming further that the prisoners are rational and motivated only by self-interest, they will both confess—and get six years in jail, rather than keep quiet and get off with only a year. The paradox, of course, is that by pursuing their individual self-interest, the prisoners behave in a [*PG203]way that is contrary to their shared collective interest in shorter sentences.356

The prisoner’s dilemma has been used to illustrate many varying points about the obstacles to collective action.357 Here, it illustrates not only the power of self-interest in defeating any sense of moral obligation to advance the common good, but also the ability of free-riders to undermine or even destroy the benefits of communally conscious actions.358 After all, as it is within the nature of the prisoner’s dilemma and the tragedy of the commons, there are no tools available by which the co-prisoners can stop each other from choosing the selfish course of action, even if that results in a less than optimal outcome for the community as a whole.359

As a result, government intervention into environmental problems has come in the form of coercive regulatory action.360 While education regarding harms of pollution and environmental degradation can be helpful and important in the same way that it can help the prisoners understand the benefits of cooperation in order to appreciate the full scope of the dilemma, such measures cannot by themselves solve the collective action problem presented.361 To achieve the optimum beneficial outcome for both prisoners, coercive action designed to ensure that neither prisoner confesses is necessary. In the environmental context, this has meant that government regulations must impose coercive restrictions on activities that degrade the environment.362

2.  The Conventional Understanding of Discrimination as Irrational Behavior

Within civil rights scholarship, a similar understanding about the underlying causes of discrimination has become increasingly ac[*PG204]cepted.363 The conventional wisdom about discrimination, however, has been quite different.364

Since the earlier part of the twentieth century, the conventional wisdom has been that “racism . . . is irrational,”365 because it is based on well-known and persistent errors of judgment about others based on racial group membership.366 The negative attributes ascribed by racist beliefs to a racial group are either simply false or constitute unjustifiably over-broad generalizations.367 Yet, these notions have exerted a peculiar power.368 Unlike factual misconceptions or generalizations, beliefs rooted in prejudice and racism “are not reversible when exposed to new knowledge.”369 They persist in spite of facts to the contrary.370

Some, such as Gary Becker, have sought to provide explanations by locating discrimination not necessarily in irrational actions based on faulty reasoning but rather in pre-rational thoughts.371 Thus, discrimination is not the result of a “mistaken” belief about a particular racial minority group but rather because the individual has a “taste for [*PG205]discrimination.”372 According to Becker’s seminal 1957 treatment of this issue, discrimination can be a response to an inherent desire by an individual to avoid associating with members of particular racial minority groups.373 Such desires have the status of inherent likes and dislikes or values, similar to individual preferences for vanilla ice cream over chocolate ice cream.374 Accordingly, prejudice and discrimination are only symptoms and implementation mechanisms of desires and values that cannot be explained or justified by, and in fact precede, rational thought or logic.375

To be sure, even this kind of reliance on race in governmental decision-making is considered “‘utterly irrational,’ and repugnant to the principles of a free and democratic society” because it “rests on the false premise that differences in race, or in the color of a person’s skin, reflect real differences that are relevant to a person’s right to share in the blessings of a free society.”376 At bottom, the use of race is considered an illegitimate and inappropriate criterion for distributing the benefits of membership in our society.377

The conventional view of discrimination thus understands it as behavior that is quite different from the type of behavior that results in environmental degradation problems.378 Rather than being an unintended byproduct of individual pursuit of self-interest and personal gain, as in the tragedy of the commons model379 and the prisoner’s dilemma, discrimination and racism are instead seen as either ends in themselves, as a manifestation of a fundamental dislike of members of other racial groups, or as “mistakes”—incorrect evaluations and [*PG206]judgments about racial minorities.380 Discrimination, unlike environmental degradation, is thus an unnatural phenomenon and the result of the breakdown of ordinary and legitimate individual decision-making processes.381

This understanding indicates that education about the “mistake” of racism and prejudice will not be sufficient as a remedy to overcome discrimination.382 Rather, because of its roots in pre-rational preferences against members of other racial groups, such preferences can only be changed or eliminated by deeper personal changes in values and attitudes toward other races—processes that depend as much and maybe even more on personal relationships and interactions than on governmental coercion and regulation. The power of this understanding of discrimination is demonstrated by the significant success that integration and diversity efforts in public education, the work place, and housing have had in changing people’s attitudes and behavior toward racial minorities.

3.  The Rationality of Discriminatory Behavior

Yet, in spite of the widespread acceptance of this understanding,383 it is too simplistic. Explaining racism and prejudice only as the result of pre-rational affinities and irrational judgments forecloses any further analytical inquiries into the nature of discrimination and its causes. After all, how can one analyze a phenomenon when it precedes (as pre-rational preference)384 or exists outside of (as a mistake)385 any analytical framework?

In the end, this conventional understanding of discrimination provides an incomplete view of the problem. It ignores the concept that discrimination is a phenomenon, like environmental degradation, that is either an instrumental means for achieving other benefits and advantages or is the by-product of normal, self-interested, rational action.386

[*PG207] For instance, in third-party discrimination,387 a restaurant owner might engage in racial discrimination not because of his or her own prejudice, but rather in response to traditional market forces.388 Thus, in spite of having no “taste for discrimination” of his or her own, a business owner might exclude prospective racial minority employees or patrons from an establishment in order to cater to other patrons who do harbor racial prejudices.389 The result is the familiar exclusion of racial minorities from market transactions because of decreased commercial opportunities.390

A second form of racial discrimination that is the result of rational behavior arises out of the use of statistical evidence that appears to document differences between racial groups.391 Statistically based discrimination is premised on the notion that generalizations about racial minorities can serve as a predictor about particular members of minority groups.392 For example, statistical evidence about the model criminal suspect, including the suspects’ most frequently recurring race (the racial profile), could arguably serve as a useful predictor by “lower[ing] the cost of obtaining and processing information, [and thus] . . . the overall cost of doing the business of policing.”393 There has, of course, been much criticism of racial profiling.394 But when time and resource availability impose real constraints on the ability to [*PG208]gather information, the perceived utility to any particular law enforcement officer of using a racial profile with regard to reducing decision-making time and costs might still make the use of such a generalization nevertheless rational and possibly even efficient.395

The third form of discrimination that is associated with rational behavior exists as a manifestation of ordinary cooperative behavior designed to advance the discriminator’s interests. Like other forms of group cooperation, racism and prejudice can serve as a means for members of one racial group to cooperate with each other in order to create or preserve advantages over non-members.396 Racism can thus serve as a means of advantaging members of the more powerful racial group over others.

At their most concrete, prejudice and racism have created a system of racial privilege of Caucasians over racial minorities. Individuals participate in the maintenance of such a system because of the preferential employment or educational opportunities as well as other economic and social advantages that being Caucasian affords.397 Yet, this system need not provide only specific and concrete economic [*PG209]benefits. For example, even individuals of poor Caucasian working class backgrounds, who have received little in terms of concrete benefits from racism, are accorded, at a minimum, a higher social status than racial minorities.398 The resulting form of psychic satisfaction can be seen as contributing to an individual’s sense of well-being or utility in the same sense that increased consumption of material goods can.399 W.E.B. Du Bois observed as early as the 1930s that “the white group of laborers, while they received a low wage, were compensated in part by a sort of public and psychological wage” based on the lower social status of racial minorities.400

Of course, the days of segregation and other forms of officially sanctioned discrimination aimed at preserving and perpetuating white supremacy are over. Equal opportunity and racial equality are now the idealized norms of the country. Yet, the truth of the recognition that members of the same group will tend to favor each other over non-group members remains valid.401 That recognition is not surprising to many who have argued for some time that self-interest has perpetuated racism and discrimination against racial minorities, albeit in different forms.402

B.  The Substantive Failing of EPA’s Title VI Regulatory Approach

Considered in this fashion, then, discrimination is little different from the profit-maximizing behavior that leads to overuse of communal resources—it is, as Richard McAdams has characterized it, also a form of market failure.403 Prejudice and discrimination are analogous manifestations of efforts to achieve or preserve individual gain and advantage.404 Rather than an individual imposing harm on the entire community, the harm is imposed by members of the “in-group” on [*PG210]those of the “out-group.”405 The ultimate motivation that gives rise to the harm is the same.406 Individuals overuse commons resources not because of evil intent or ill will, but rather because it is in their interest to do so—because the individual reaps the full benefit of his or her overuse of the commons, while only bearing a fraction of the burden.407 Similarly, discrimination can be seen as resulting from underlying economic and personal incentive structures that promote racism and prejudice.408

There is no need for an individual to harbor specific ill will or racial hatred toward racial minorities in order to engage in actions or contribute to the perpetuation of structures that discriminate against racial minorities. Pursuit of individual self-interest is sufficient motivation. Nor is it necessary that an individual consciously seeks to disadvantage racial minorities specifically for personal gain.409 Usually, the perpetuation of existing institutions and structures that preserve the unequal status quo—advantaging the majority at the expense of minorities—is all that is needed.410

Certainly, other explanations for discrimination and racial disparities exist.411 But to the extent that discrimination finds its roots in rational behavior, narrowly limited governmental intervention will be [*PG211]insufficient to remedy the effects of discrimination. Government actions and anti-discrimination protections that focus on individual attitudes and conduct about race alone and ignore the systemic and structural aspects of it will not lead to real solutions. If discrimination problems are not primarily problems of individual wrongdoing, but rather a larger social pathology that shares similarities with larger scale social problems, systematic and comprehensive government intervention is necessary.412

This conclusion hearkens back to what some scholars and others have emphasized for a long time—that the economic and structural underpinnings of racial inequality must be addressed just as much as individual attitudes in order to achieve true racial equality. Discrimination raises the same prisoner’s dilemma issues that environmental degradation raises, except that in discrimination, the pay-off matrix for a discriminator provides the greatest benefit when he or she chooses discrimination. Education, good will, and changing individual attitudes alone are unable to end discrimination and social inequities.413 Just as environmental regulation has sought to reduce the economic incentives for environmental degradation, to effectively address discrimination, government may have to consider more explicitly the racial and distributional implications of decision-making and institutional structures, and take more race-conscious actions.414

The inability to fully understand this has been one of the main failings of EPA’s current approach to environmental justice under the Title VI guidance. The Draft Revised Guidance, for example, requires an adverse environmental human health impact to be cognizable.415 As a practical matter, this is likely to mean that impacts must exceed established human health or environmental benchmark values provided by statutes, EPA regulations, or EPA policy.416 But the imposition of such absolute thresholds fails to recognize that much behavior and [*PG212]action that impose a greater burden on minority and poor communities may not rise to such thresholds. By focusing the Draft Revised Guidance on only the most serious incidents,417 such objectionable behavior or activities will persist. Thus, rather than addressing the substance of the problem—the incentives leading to such behavior—it only addresses some of the symptoms.

A related problem arises with regard to the role of justification in the Draft Revised Guidance.418 While the Draft Revised Guidance indicates that “a goal that is legitimate, important, and integral to the recipient’s institutional mission” justifies a discriminatory impact, “broader interests, such as economic development” may also justify discriminatory impact “if the benefits are delivered directly to the affected population.”419

The intent behind this interpretation of justification might have been noble, seeking to address the lack of economic development and job opportunities in many poor and minority communities. But it is likely to exacerbate the siting of undesirable facilities in such communities. After all, it immunizes environmental decisions against challenges under Title VI420 and, as a result, is likely to attract more undesirable facilities that cannot be sited anywhere else because of community opposition. Thus, when the environmental justice community will need the protections of Title VI the most, such protections may not be available because the economic development justification permits significantly adverse disparate impacts.421

Finally, the lack of specificity with regard to prohibited practices or considerations is also significant.422 The Draft Revised Guidance does suggest a variety of approaches to compliance, ranging from the comprehensive to the case-specific.423 Its primary focus, however, is on process issues, omitting more specific directions about the substantive obligations that the disparate impact regulations impose.424 For example, details with regard to prohibited practices, methods of enforcement, and suggested remedial actions are missing.425 Without [*PG213]such detail, recipients will find it difficult to ensure that their actions are not influenced by corrupting discriminatory biases and to conform their conduct to the disparate impact prohibitions of Title VI.

In the end, EPA’s ad hoc, case-by-case approach to resolving environmental justice complaints that the Title VI process sets out is inadequate for addressing the systemic and structural incentives that will continue to disadvantage racial minority and poor communities. Instead of reacting to problems raised by administrative complaints, EPA must proceed to understand the biases against environmental justice communities within its existing regulatory systems and pro-actively seek out regulatory solutions.

IV.  Re-evaluating the Role of Title VI and Environmental Justice in Environmental Regulation

Presently, no person would find acceptable the proposition that industrial pollution should occur unregulated, precisely because of the market failure problems described by Garrett Hardin’s Tragedy of the Commons.426 Yet, that has not always been so, as the severe pollution problems of the 1950s and 60s and the lack of comprehensive controls on polluting activities during those times demonstrate. Likewise, public and open expressions of racial hatred and bigotry are socially unacceptable today. But in the 50s and 60s, discrimination and segregation were part of the social fabric of communities, and change required the radical intervention of the federal government.427 In both contexts, change required people and businesses to fundamentally alter what was previously socially accepted behavior or common practice; but that did not stop reformers.

The same is true for environmental justice. What will be necessary is analogous structural reform. Yet, government has failed to take the problem sufficiently seriously as a structural and systemic matter. After all, any effective regulatory approach to environmental justice issues must not only address the tensions between the regulatory premises of civil rights law and environmental law; it must also focus on the real life incentives that lead to discrimination and distributional inequities in the same way that environmental regulation has focused on those real life incentives that lead to environmental degradation.

[*PG214] The application of such an understanding raises some important questions. In spite of this recognition, is there nevertheless an issue as to the competency of EPA in addressing discrimination issues? How can the majoritarian tendencies of a politically controlled administrative agency428 be tempered so as to provide effective minority protections? And what ought a constructive role for Title VI be within EPA’s efforts to achieve environmental justice?

A.  Incorporating Civil Rights into Environmental Regulation: Assessing EPA’s Institutional Competence

Even if one can improve consideration of civil rights concerns through environmental regulatory processes, the ultimate question of competence remains. This conundrum is embodied in two closely related questions that appear to have made environmental regulators reluctant to address civil rights issues in their work: (1) Can environmental regulators adequately consider and implement civil rights values?; and (2) Should bureaucrats be involved in administering civil rights values and norms?429

As discussed above, many of the difficulties that EPA has encountered in addressing the civil rights and equity issues of environmental justice are embedded in the regulatory and institutional framework of environmental protection.430 Its decision-making processes and institutions seem unsuited to the types of judgments that must be made in the civil rights context. Given that an adequate understanding of and ability to deal with civil rights and discrimination concerns requires knowledge of the history of race relations, the sociology and psychology of inter-personal and institutional racial dynamics, and the counter-majoritarian protection needs of racial minorities, a cadre of technically and quantitatively inclined agency employees seems entirely unequipped to the task. Delicate social value and political judgments are arguably not within the competence of such a technical expert agency. In fact, the use of administrative and technical decision-making processes pre-supposes that a significant amount of consensus must exist about the methodology, such as race-blind versus race-conscious approaches, and values upon which a decision is to be [*PG215]based. Such a consensus largely does not exist, or at a minimum is fiercely contested in the civil rights context. Congress can supply some of these methodologies or values through specific statutory mandates. But it has largely not done so.

Federal agencies have been involved in the administration of civil rights laws.The roles of agencies such as the Equal Employment Opportunity Commission (EEOC) and the Departments of Education and Housing and Urban Development (HUD) in advancing civil rights demonstrate the functions that agencies can fulfill in this regard.431 However, unlike some other agencies, EPA also does not have an agency-specific congressional statutory mandate to consider civil rights and equity issues within its regulatory functions.

But even if it has an impoverished institutional experience in dealing with such issues, why can it not acquire such experience through its own efforts to address environmental justice issues? After all, agencies such as the EEOC and the Departments of Education and Housing and Urban Development were not created fully-formed with all of the experience necessary to fulfill their statutory missions. Like all agencies, their institutional expertise evolved with the acquisition of institutional experience over time.

As a practical matter, since EPA is a member of the family of federal agencies in the executive branch, it can draw on the civil rights knowledge and experiences of other agencies, including ones such as the Departments of Justice, Education, and Housing and Urban Development. For example, with regard to its formulation of the Title VI Draft Revised Guidance, EPA closely cooperated with and was subject to the supervision of the Department of Justice.432 Ultimately, supervision by the President and assistance by other agencies should alleviate competency concerns. Objections that such efforts will not be easy because they will require significant changes to how EPA conducts its business are merely excuses for avoiding the substantive calls for environmental justice rather than reasons why EPA cannot change.

A broader issue is raised by the relationship of environmental discrimination and inequity with larger patterns of discrimination and inequity within society. Many of the difficulties encountered by EPA in addressing the deeper structural and systemic aspects of discrimination and inequity in environmental justice are arguably symptomatic [*PG216]of the inadequacies of more generally prevailing legal understandings and approaches to race issues.433 Thus, one might argue that the problem is with the existing legal system as a whole rather than just the environmental regulatory system.434 Accordingly, the difficulties should be addressed by the government as a whole, through some inter-agency effort directed by the Executive Branch, rather than EPA specifically.435 EPA’s efforts arguably should be secondary to inter-agency, government-wide efforts.

It would be an abdication, however, of EPA’s larger societal responsibilities as well as its specific statutory obligations under Title VI, if it failed to pro-actively engage civil rights and equity issues within its regulatory jurisdiction. As an agency of the federal government, EPA has an independent responsibility, under the Constitution as well as the various federal civil rights statutes, including Title VI, to redress discrimination issues within its regulatory programs.

Civil rights statutes such as Title VI were, by design, addressed to all federal agencies rather than a few specific ones.436 Title VI recognizes the pervasive nature of racial discrimination and the special responsibility of the federal government to ensure that it does not become complicit in such discrimination through its funding assistance.437 By seeking to prevent racial discrimination in the activities of recipients of federal funds, Title VI, by necessity, cannot speak only to a few select federal agencies but must direct itself to all agencies dispensing federal funds.438 Even if EPA is less experienced in [*PG217]dealing with civil rights issues than agencies such as the EEOC, EPA’s role is no less important within larger efforts to promote racial equality. And while EPA’s statutory mission is focused on issues other than civil rights, the civil rights laws elevate its obligations to address civil rights concerns to a level no less important than its environmental priorities.439

By making each individual agency responsible for ensuring non-discrimination in the federal funds that it administers, Title VI recognizes that discrimination comes in different forms and shapes.440 Regulatory solutions that might apply to the discrimination issues faced by one agency might not be applicable to those faced by another.

Finally, and most importantly, as a federal agency, EPA does not act independent of the remaining federal government. It is, within the executive branch, subject to the control of the President and accountable in that fashion.441 With regard to the mandates of Title VI, Congress made such accountability explicit.442 EPA’s actions are ultimately attributable to the President as head of the executive branch.443 As an entity accountable to the President, whose responsibilities reach much further than the environmental mission of EPA to include the safe-guarding of civil rights, EPA’s actions should be equally mindful of such broader responsibilities.

The crucial question in considering EPA’s role in addressing civil rights and larger issues of fairness and equity is not whether EPA is competent to do so, or whether it should take the necessary yet difficult steps of achieving effective solutions to issues of environmental justice, but rather, what steps need to be taken to make its regulatory framework become more responsive to such issues.

[*PG218]B.  Taking Minority Protection Seriously in Administrative Proceedings: The Place of Administrative Adjudicative Processes

As discussed above, one of EPA’s principal difficulties has not been a failure to act on environmental justice issues, but rather a failure to confront the institutional and structural biases against the interests advanced by the environmental justice movement.444 The environmental laws’ majoritarian orientation and their methodological bias toward quantifiable considerations have made incorporating civil rights concerns inherently difficult.445 An effective approach to environmental justice issues must include a process that resolutely protects the interests of those raising minority concerns and takes environmental justice concerns seriously.

This recognition re-emphasizes the inadequacy of EPA’s Title VI Guidance. As noted previously, the entire process of investigating and deciding Title VI complaints is based on a process that is subject to political, and thus majoritarian, control.446 This orientation is exacerbated by the historically and institutionally close relationship that EPA has had with state and local governments—the primary targets of administrative Title VI complaints—and the attempts by the Guidance to extend some form of deference to state and local government.447

The lack of real concern by the Guidance with minority protection issues and the interests of Title VI complainants is especially clear in EPA’s statement regarding who ultimately controls the Title VI process: EPA and the federal fund recipient.448 Thus, “EPA does not represent the complainants, but rather the interests of the federal government, in ensuring nondiscrimination by its recipients.”449 The complainant may provide relevant information about the discrimination allegations, but he or she has no right of participation within the [*PG219]administrative process.450 And most importantly, the complainant has no right of appeal of an adverse determination on the complaint.451 In contrast, the federal fund recipient has the full panoply of participatory rights, including the right to administratively appeal any adverse decision.452

The Supreme Court’s recent decision in Alexander v. Sandoval has done little to alleviate this disparity.453 While alternative avenues, such as suits under Section 1983, may keep open a significant avenue for private plaintiffs to pursue Title VI disparate impact claims in court,454 there remains a patent disparity in legal rights and remedies that individuals and communities complaining about the Title VI violations have in comparison to the targets of such complaints.455 After all, the administrative process was designed largely to allow complainants to avoid the expense, delay, and other burdens of litigation because of the enormous obstacles that such issues present to Title VI complainants seeking to vindicate their claims.456 Therefore, it proves that EPA’s administration of laws protecting minority groups and the poor is subject to political control.457

A change in this key failing of EPA’s Title VI Guidance could significantly improve the consideration of minority interests in regulatory processes.458 As noted above, judicial decision-making is more solicitous of minority rights and incommensurable values than agency processes. Incorporating the attributes of the judicial process more closely into agency structures would improve minority protections within EPA’s administrative decision-making.

The availability of administrative adjudicative processes under Title VI could significantly address these concerns.459 Of course, administrative law judges are not entirely independent of political control and do not have the broad public policy perspectives of Article III [*PG220]federal judges.460 Nevertheless, they are more insulated from political pressures than other agency employees461 and can thus be expected to implement some politically unpopular demands more readily than might be possible through other agency processes.462 Therefore, if minority protections suffer because of political pressure, administrative law judges can be expected to resist such pressures more easily than other agency employees.

Shifting decision-making control over environmental justice complaints to adjudicative processes without more reform, however, would only partially address problems of administrative decision-making. To improve the consideration of the incommensurables of environmental justice, administrative law judges would have to become more educated and cognizant of the history and concerns of civil rights law and the role of distributional equity and procedural fairness in public policy.463 The mixed outcomes of past EPA administrative decisions addressing environmental justice issues appear to confirm a lack of familiarity with and commitment to racial equality and social equity concerns.464 Without a greater appreciation of these issues, adjudicative processes are unlikely to significantly improve the consideration of environmental justice concerns. But more importantly, failure to change in this regard might simply return decision-making to the rote application of traditional civil rights jurisprudence without careful consideration of how the administrative agency mechanisms impact the application of this jurisprudence.

A recent decision by the Atomic Safety and Licensing Board of the Nuclear Regulatory Commission suggests that adjudicative processes can produce more searching inquiries with regard to the regulatory significance of racial and socio-economic disparate impacts.465 In [*PG221]that decision, the Board found that in light of the requirements of the Executive Order on Environmental Justice, the siting of a uranium enrichment facility in predominately poor and African-American communities raised potential racial discrimination issues.466 The decision itself has not been a panacea for environmental justice advocates because, on appeal to the politically appointed Commission members, the reach of the administrative decision was significantly curtailed.467 And ultimately, every administrative adjudicative decision is subject to review by politically appointed and accountable agency heads.468

Nevertheless, administrative adjudicative processes arguably provide at least a starting point for taking a more serious look at changing the framework that so ill-serves environmental justice interests.469 They hold out the potential for far more principled and transparent decision-making with regard to minority concerns.470 And to the extent that environmental justice groups raise specific claims of discrimination and inequity, the characteristics of adjudicatory processes make them more suitable as mechanisms that will fairly address their concerns than other established agency processes.471

C.  The Scope of Regulatory Discretion Under Title VI and Environmental Statutes: Following the Path of NEPA

Incorporation of adjudicative processes cannot be the sole answer to the improved consideration of environmental justice concerns because most agency decision-making processes cannot be adjudicatory. After all, the primary policy rationale for the creation of administrative agencies was to avoid the strictures of adjudicative processes that the common law posed for the technical and complex problems of environmental protection. Moreover, such process changes do not alter the substantive regulatory requirements that govern such decisions in the first place. To the extent that such regulatory requirements are hostile to or do not allow the consideration of discrimina[*PG222]tion or equity concerns, changing the process of decision-making will ultimately accomplish little. These limitations point out that another key step that EPA must take is to make more substantive changes within its regulatory processes.

Title VI potentially offers one important opportunity to achieve this goal. To realize the utility of Title VI, however, EPA will have to move beyond the use of its Title VI regulations purely as an enforcement tool of narrow conceptions of discrimination against federal fund recipients, as it has within its Title VI Guidance. Instead, EPA will need to utilize them more substantively as a source of authority for defining what types of actions lead to unacceptable discriminatory outcomes.472 At the same time, EPA must also heed more carefully the implicit call in Title VI to incorporate environmental justice considerations into all of its regulatory activities, a call that has been raised in the past with regard to the mandates of the Executive Order on Environmental Justice.473 In essence, these tasks require EPA to address discrimination as a concern that shares much in common with issues of environmental degradation—a pervasive problem that is structural in nature.474

The value of Title VI to these tasks is in its delegation of significant congressional authority to federal agencies to determine the prohibited forms of discrimination.475 In the past, this delegation [*PG223]of authority was used by agencies to promulgate regulations that prohibit discriminatory impacts as well as intentional discrimination.476 As Charles Abernathy argued two decades ago, however, this delegation of authority also calls on agencies such as EPA to adopt an understanding of Title VI based on a regulatory model of law making with broadly delegated powers and regulatory discretion to pursue anti-discrimination objectives.477 The Supreme Court has largely agreed with this understanding of Title VI.478

This model of federal law making is all too familiar to EPA. Federal environmental statutes delegate a significant amount of authority to EPA so that it may promulgate regulations that implement broad congressional mandates.479 Title VI is little different in this respect.480 EPA’s regulatory experience with the pervasive nature of polluting activities and the incentives that affect activities leading to environmental degradation has given it a regulatory perspective and experi[*PG224]ence uniquely situated to address the pervasive nature and structural aspects of discrimination through Title VI.481

Arguably, since Title VI does not apply to EPA’s activities itself, there could be inconsistent treatment—EPA might hold federal fund recipients to a higher or different standard than it holds its own regulatory activities. Yet, rather than holding itself to a lower standard, EPA should do more within its own activities to address the pervasive discrimination within American society. It must put into substantive practice what the Executive Order on Environmental Justice called on agencies to do in 1994—to incorporate environmental justice into all of their regulatory activities.482

In considering the expansive concern with unintentional discrimination by federal fund recipients and agency discretion under Title VI to address such discrimination, EPA has taken few substantive steps within its own programmatic activities. The recognition of the pervasiveness of discrimination and the authority delegated to EPA with respect to discrimination by federal fund recipients indicates that it must do much more to address the structural issues that cause and contribute to discrimination and inequity in environmental regulation. Further, EPA must take environmental justice concerns seriously as a substantive and programmatic matter, not just as a matter of public relations.

In many respects, these criticisms should be familiar to EPA. In 1969, Congress passed NEPA in order to force all federal agencies to consider the environmental consequences of their actions before making decisions.483 This principle has become most visibly embodied in NEPA’s requirement that agencies prepare environmental impact statements that inform agency decisionmakers about the potential environmental consequences of particular agency decisions.484 While NEPA has had no substantive core, imposing only procedural requirements that must be satisfied before an administrative agency action can be finalized, it was also designed by Congress to change the very fabric of administrative decision-making.485 By forcing agencies to [*PG225]interpret and administer all “policies, regulations, and public laws of the United States . . . in accordance with the policies set forth” under NEPA,486 it was designed to make them more aware of such consequences and ultimately to prompt agencies to alter their actions so as to minimize environmental harm.487

The parallels to the broad mandate of Title VI to ensure non-discrimination by federal fund recipients should be apparent. In a sense, what Title VI calls on agencies to do—incorporate anti-discrimination protections into the programs receiving federal funding—is quite similar to NEPA’s mandate to incorporate environmental considerations into agency decision-making.488 The implicit purpose of Title VI, however, is significantly more substantive in nature: full incorporation and implementation of Title VI’s discrimination prohibitions in all of EPA’s regulatory decision-making processes.489

From this perspective, the failure of EPA to heed Title VI’s larger purpose of incorporating civil rights is particularly ironic. After all, EPA is the primary agency charged by Congress with monitoring agency compliance with NEPA.490 Of course, EPA itself has largely been exempted by the courts from the very application of NEPA because it is considered to perform functionally equivalent environmental analyses in those exempted programmatic activities.491 The exemption underscores not only that EPA has an appropriate role in [*PG226]ensuring the compliance with broad statutes such as NEPA and Title VI by other governmental actors, but also that it has a legitimate role in doing so even if it itself is not subject to those regulatory requirements.

There is yet another implication that the functional equivalent exemption raises—the need for EPA to make much more serious efforts within its programmatic activities to achieve the substantive goals of Title VI, even if it is not subject to Title VI. EPA must make more purposeful efforts in exploring and applying the various legal authorities it already possesses under its federal environmental statutes to address discrimination and equity issues. As Richard Lazarus has pointed out, and as acknowledged by EPA itself, such authority does exist within EPA’s various regulatory statutes.492 EPA must now actually use this statutory authority to improve the incorporation of environmental justice issues into its own regulatory activities.

One step that has been suggested is the incorporation of environmental justice considerations into the enforcement process, and in particular the assessment of penalties for regulatory violations.493 For instance, section 113(e)(1) of the Clean Air Act allows EPA to consider “such other factors as justice may require” in determining the penalty that is to be assessed.494 Increasing penalties based on discriminatory impacts could serve as a deterrent, and thus a disincentive, to greater pollution burdens imposed on environmental justice communities. Such increased penalties could outweigh the benefits a polluter might gain from the decreased likelihood of detection of violations and lower enforcement rates in environmental justice communities.

EPA’s efforts, including its recently issued Title VI Guidance, may be the beginning of a long-term strategy to address and incorporate harms to environmental justice communities comprehensively into environmental regulation. And EPA’s attempts to change its culture to listen more carefully to the complaints of environmental justice advocates are commendable.

[*PG227] As noted above, however, EPA has yet to confront some key obstacles inherent in its institutional structure and methodological approaches. In particular, EPA’s long delay in identifying appropriate statutory authority, without even beginning the process of acting on such authority, does not speak well to EPA’s commitment to accomplishing the ultimate goal.495 Moreover, little has been done to begin incorporating such authorities into its regulatory decision-making processes.496 Such steps are crucial for any regulatory approach that takes the anti-discrimination and equity needs of the environmental justice movement as seriously as EPA’s traditional environmental protection mission.

Conclusion

EPA’s attempts to address environmental justice issues by importing civil rights approaches into environmental regulatory schemes have largely been unsatisfactory and have given rise to serious criticisms.497 Much of this can be traced back to a failure to create appropriate regulatory approaches to environmental justice as well as the lack of a substantive understanding of environmental justice concerns.498 In creating a more effective process for dealing with environmental justice complaints, EPA will have to adjust both the form and substance of its regulatory mechanisms by considering more specifically minority protection concerns and incommensurable values . It must also adopt a more comprehensive regulatory approach that focuses on the structural incentives of discrimination.

In a way, the analysis reemphasizes the important lesson of the last several decades for environmental protection: a healthy and livable environment cannot be preserved or restored without proactive [*PG228]efforts that challenge the status quo and seek changes to existing structures and institutions. The same is true for efforts aimed at achieving the ideals of equality and a just society.

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