* Executive Editor, Boston College Environmental Affairs Law Review, 2002–03.
1 See infra Part II.B. Following the completion of this Note, Millennium Pipeline Co. and the City of Mount Vernon entered into a settlement rerouting the proposed pipeline through a commercial district, instead of a residential district. See Millennium Pipeline Co., 100 F.E.R.C.  61,277 (2002) (order issuing certificate), 2002 FERC LEXIS 1903, at *9. The terms of the settlement are confidential. Telephone Interview with Michael Zarin, Zarin & Steinmetz (Jan. 22, 2003). Interestingly, although failing to discuss environmental justice issues, FERC approved the variation in part because it moved the location of the pipeline “away from sensitive resources such as residential neighborhoods, apartment buildings, a school, health center, hospital, churches, and fire stations.” Millennium Pipeline, 100 F.E.R.C.  61,277, 2002 FERC LEXIS 1903, at *24. FERC, however, still has not promulgated an environmental justice policy or agreed to incorporate such principles into their decisionmaking process.
2 The U.S. Environmental Protection Agency defines environmental justice as:
[T]he fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.
Office of Enforcement & Compliance Assurance, U.S. Envtl. Prot. Agency, Environmental Justice, at http://www.epa.gov/compliance/environmentaljustice/index. html (last updated Sept. 26, 2002).
3 See discussion infra Part III.C.2.
4 The first environmental justice arguments were made by residents of Houston, Texas in Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673, 674–77 (S.D. Tex. 1979). Plaintiffs charged that the defendants had discriminated against them in the operation of a solid waste management facility in a predominantly minority community. Id. The judge, however, dismissed their novel claim for failing to prove intentional discrimination. Id. at 681; see discussion infra Part IV.C.2.
5 In both 1992 and 1993, Congress considered and rejected proposed environmental justice legislation. See Environmental Justice Act of 1993, H.R. 2105, 103d Cong. (1993); Environmental Justice Act of 1992, H.R. 5326, 102d Cong. (1992). The purpose of the legislation was “to assure nondiscriminatory compliance with all environmental, health and safety laws and to assure equal protection of the public health.” H.R. 2105.
6 The phrase “environmental racism,” often used synonymously with environmental justice, is widely attributed to Dr. Benjamin Chavis, former executive director of the United Church of Christ Commission for Racial Justice. See Michele L. Knorr, Environmental Injustice: Inequities Between Empirical Data and Federal, State Legislative and Judicial Responses, 6 U. Balt. J. Envtl. L. 71, 72 n.9, 73 (1997); James H. Colopy, Note, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act, 13 Stan. Envtl. L.J. 125, 129 n.7 (1994).
7 See Robert D. Bullard, Dumping in Dixie 118 (2d ed. 1994) (stating that the environmental justice issues were brought to the forefront by academics and activists); Dorceta E. Taylor, Environmentalism and the Politics of Inclusion, in Confronting Environmental Racism: Voices from the Grassroots 53, 53–55 (Robert D. Bullard ed., 1993) (discussing the influx of minority participation in environmental groups).
8 See Taylor, supra note 7, at 54.
9 See Robert D. Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement, in Confronting Environmental Racism: Voices from the Grassroots, supra note 7, at 24–26.
10 See Taylor, supra note 7, at 53–54.
11 See Robert D. Bullard, Introduction to Unequal Protection: Environmental Justice and Communities of Color at i, xv(xvi (Robert D. Bullard ed., 1994).
12 Compare Robert D. Bullard, Environmental Justice for All, in Unequal Protection: Environmental Justice and Communities of Color, supra note 11, at 3–5 (linking a 1967 student revolt at Texas Southern University with environmental justice), with Daniel Faber, The Struggle for Ecological Democracy and Environmental Justice, in The Struggle for Ecological Democracy 7 (Daniel Faber ed., 1998) (citing the 1978 protest over New York’s Love Canal as the birth of the environmental justice movement).
13 See Stephen Sandweiss, The Social Construction of Environmental Justice, in Environmental Injustices, Political Struggles: Race, Class, and the Environment 31 (David E. Camacho ed., 1998); Samantha P. Fairchild, Environmental Justice: An Overview, 18 Temp. Envtl. L. & Tech. J. 111, 112 (2000); Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 Ecology L.Q. 1, 9 (1995).
14 Ken Geiser & Gerry Waneck, PCBs and Warren County, in Unequal Protection: Environmental Justice and Communities of Color, supra note 11, at 43.
15 See id. at 44, 46.
16 Id. at 43–44.
17 See id. at 51.
18 See id. at 50 (citing one protestor who proclaimed: “The trend is very clear. They would rather experiment with poor black people, [and] poor white people, than to experiment with the middle and upper classes . . . . The regulations are such that [they] allow landfills to be placed in environmentally unsafe, but politically powerless areas.”).
19 Id. at 50.
20 See Geiser & Waneck, supra note 14, at 48–49.
21 See id. at 50, 52.
22 See Bullard, supra note 12, at 5.
23 See id. at 5–6.
24 See David E. Newton, Environmental Justice: A Reference Handbook 2–3 (1996).
25 See Bullard, supra note 12, at 6.
26 See Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 801 n.49 (1993).
27 On its Web site, the General Accounting Office claims: “The General Accounting Office (GAO) is the investigative arm of Congress. GAO exists to support Congress in meeting its Constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government for the American people.” See U.S. Gen. Accounting Office, at http://www.gao.gov (last visited Nov. 4, 2002).
28 See Christopher H. Foreman, Jr., The Promise and Peril of Environmental Justice 18 (1998).
29 See U.S. Gen. Accounting Office, Pub. No. RCED-83–168, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities 1 (1983) [hereinafter GAO Study].
30 An off-site landfill is a landfill not connected to an industrial facility. See id.
31 Id.
32 Id.
33 The GAO report and other environmental justice studies have been criticized. E.g., Thomas Lambert et al., Nat. Legal Center for the Pub. Interest, A Critique of “Environmental Justice,” 3–7 (Jan. 1996) (a White Paper).
34 See Lazarus, supra note 26, at 802–03.
35 See id. at 801 (identifying the UCC study as one of the most widely acknowledged in connecting race with environmental risk).
36 See Bullard, supra note 12, at 17.
37 See Comm’n for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States: A National Report on the Socio-Economic Characteristics of Communities with Hazardous Waste Sites 15–16 (1987).
38 See id. at 13.
39 See generally Paul Mohai & Bunyan Bryant, Environmental Racism: Reviewing the Evidence, in Race and the Incidence of Environmental Hazards 163 (Bunyan Bryant & Paul Mohai eds., 1992) (examining fifteen environmental justice studies undertaken between 1971 and 1992).
40 See Karl Grossman, The People of Color Environmental Summit, in Unequal Protection: Environmental Justice and Communities of Color, supra note 11, at 272.
41 Id.
42 See id. at 272–75.
43 See Giovanna Di Chiro, Environmental Justice from the Grassroots: Reflections on History, Gender, and Expertise, in The Struggle for Ecological Democracy, supra note 12, at 113.
44 See id. at 113–16.
45 See Robert D. Bullard, Decision Making, in Faces of Environmental Racism 5 (Laura Westra & Peter S. Wenz eds., 1995).
46 See id.
47 Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.  9611 (2000) (creating a fund, known as the “Superfund,” for use by EPA to clean up hazardous waste sites listed on the National Priorities List).
48 Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law: A Special Investigation, Nat’l L.J., Sept. 21, 1992, at S1.
49 See Bullard, supra note 45, at 6.
50 Lavelle & Coyle, supra note 48, at S1 (“This racial imbalance [in the enforcement of environmental laws] . . . often occurs whether the community is wealthy or poor.”).
51 See Bullard, supra note 45, at 6.
52 See Bunyan Bryant & Paul Mohai, Introduction to Race and the Incident of Environmental Hazards, supra note 39, at 3.
53 E.g., Mohai & Bryant, supra note 39, at 163–76 (providing a detailed discussion of additional studies).
54 See Bryant & Mohai, supra note 52, at 4.
55 See id. at 5 (noting that EPA’s first public recognition of environmental justice issues was in reference to the coalition’s meeting at the University of Michigan).
56 See Clarice E. Gaylord & Elizabeth Bell, Environmental Justice: A National Priority, in Faces of Environmental Racism, supra note 45, at 31–32.
57 See generally U.S. Envtl. Prot. Agency, Pub. No. EPA-230-R-92–008A, Environmental Equity: Reducing Risk for All Communities (1992) (uncovering “clear differences between racial groups in terms of disease and death rates” and concluding that “great opportunities exist for EPA and other government agencies to improve communication about environmental problems with members of low-income and racial minority groups”).
58 See Gaylord & Bell, supra note 56, at 32.
59 See, e.g., Environmental Justice Act of 1993, S. 1161, 103d Cong. (1993); Environmental Justice Act of 1993, H.R. 2105, 103d Cong. (1993); The Environmental Equal Rights Act of 1993, H.R. 1924, 103d Cong. (1993); Department of the Environment Act of 1993, H.R. 109, 103d Cong. (1993).
60 See Knorr, supra note 6, at 85–90.
61 See Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement 161–62 & n.25 (2001).
62 Exec. Order No. 12,898  1–101 to 6–609, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994).
63 Id.  1–101, 59 Fed. Reg. at 7629.
64 Id.  2–2, 59 Fed. Reg. at 7630–31.
65 See Newton, supra note 24, at 22–23.
66 See, e.g., Cole & Foster, supra note 61, at 10; Newton, supra note 24, at 23 (calling the order “arguably the most important step to occur in the environmental justice movement in its short history”); Bradford C. Mank, Executive Order 12,898, in The Law of Environmental Justice 103 (Michael B. Gerrard ed., 1999).
67 Mank, supra note 66, at 114–31. The included agencies and departments in the order are Agriculture, Commerce, Defense, Energy, Health and Human Services, Housing and Urban Development, Interior, Justice, Labor, National Aeronautics and Space Administration, Nuclear Regulatory Commission, and Transportation. Id. at 114.
68 See Cole & Foster, supra note 61, at 162–63; Denis Binder et al., A Survey of Federal Agency Response to President Clinton’s Executive Order No. 12898 on Environmental Justice, [2001 News & Analysis] 31 Envtl. L. Rep. (Envtl. L. Inst.) 11,133, 11,140–42 (Oct. 2001).
69 Exec. Order No. 12,898  1–102(a)–(b), 59 Fed. Reg. at 7629. Dubbed the “Interagency Working Group on Environmental Justice,” the group is composed of representatives from various federal agencies. Id.  1–102(a), 59 Fed. Reg. at 7629. The group is assigned the task of identifying environmental justice issues, developing strategies to prevent disparate impacts, and conducting research. Id.  1–102(b), 59 Fed. Reg. at 7629; see also Interagency Working Group on Envtl. Justice, U.S. Envtl. Prot. Agency, at http:// www.epa.gov/compliance/environmentaljustice/interagency/index.html (last visited Nov. 7, 2002).
70 See generally Nat’l Envtl. Justice Advisory Council, U.S. Envtl. Prot. Agency, at http://www.epa.gov/compliance/environmentaljustice/nejac/index.html (last visited Nov. 7, 2002). “The National Environmental Justice Advisory Council (NEJAC) is a federal advisory committee that was established . . . to provide independent advice, consultation, and recommendations to the Administrator of the . . . [EPA] on matters related to environmental justice.” Id.
71 See generally Office of Envtl. Justice, U.S. Envtl. Prot. Agency, at http://www. epa.gov/Compliance/resources/faqs/ej/index.html#faq1 (last visited Nov. 12, 2002) [hereinafter Office of Environmental Justice Web site]. “The Office oversees the integration of environmental justice into EPA’s policies, programs, and activities throughout the Agency.” Id.
72 Id. The EPA Office of Environmental Justice’s Web site describes the Committee as follows:
The Environmental Justice Executive Steering Committee is made up of senior managers representing each of the Headquarters offices and representatives from the regions. It provides leadership and direction on strategic planning, cross-media policy development, and ensures that coordination is implemented at all levels to ensure that environmental justice is incorporated into Agency operations.
Id.
73 See generally Office of Civil Rights, U.S. Entvl. Prot. Agency, at http://www. epa.gov/ocrpage1/aboutocr.htm (last visited Nov. 7, 2002). “The Office of Civil Rights (OCR) . . . serves as the principal adviser to the Administrator with respect to EPA’s nationwide internal and external equal opportunity and civil rights programs and policies. OCR also investigates and resolves complaints of unlawful discrimination either by EPA or its financial assistance recipients.” Id.
74 Cf. Cole & Foster, supra note 61, at 163 (discussing how the National Environmental Justice Advisory Committee “raised the stature of the Environmental Justice Movement to new heights”); Mank, supra note 66, at 107–09 (describing the efforts undertaken by the sub-agencies to alleviate environmental injustice).
75 Robert Bullard is a leading environmental justice activist and scholar. See Newton, supra note 24, at 69; Lazarus, supra note 26, at 803 n.61.
76 Benjamin Chavis was the head of the United Church of Christ and another prominent leader in the movement. See Cole & Foster, supra note 61, at 20 n.5; Newton, supra note 24, at 71–72.
77 Cole & Foster, supra note 61, at 32.
78 See S. 2806, 102d Cong. (1992).
79 See Office of Environmental Justice Web Site, supra note 71. The government Web site notes:
Because of the Agency’s strong belief that all Americans regardless of race, color, national origin, or economic circumstance are important to the future of our nation and should be able to live in a clean, healthy environment, EPA Administrator Browner made environmental justice one of EPA’s highest priorities and established environmental justice as one of the seven guiding principles in the Agency’s strategic plan in 1993.
Id.
80 See generally Margaret Kriz, Coloring Justice Green, Nat’l J., July 28, 2001, available at 2001 WL 25925949.
81 Memorandum from Christine Todd Whitman, EPA Administrator, to EPA Officials on Environmental Justice Policy (Aug. 9, 2001), at http://www.epa. gov/swerosps/ej/html-doc/ejmemo.htm.
82 See, e.g., Cole & Foster, supra note 61, at 164–65; David Schlosberg, Environmental Justice and the New Pluralism 192–94 (1999).
83 See Leading Environmental Justice, Climate Justice, Religious, Policy Organizations Unite To Call for Action on Climate Change, U.S. Newswire, Jan. 28, 2002, available at 2002 WL 4573681.
84 See Cole & Foster, supra note 61, at 165.
85 See id. at 20.
86 Id.
87 See id.
88 See id.
89 Department of Energy Organization Act,  401, 42 U.S.C.  7171(a) (1977).
90 Id.
91 Id.  7111(1).
92 Id.  7111(2).
93 Id.  7112(2)–(5).
94 See Federal Water Power Act of 1920, Pub. L. No. 66–289, 41 Stat. 1063 (current version at 16 U.S.C.  791a, 792, 793, 796–818, 820–823, 823a–823c, 824, 824a–824m, 825, 825a–825o, 825o-1, 825p, 825q, 825q-1, 825r (2000)). The current version is known as the Federal Power Act. 16 U.S.C.  791a.
95 See 16 U.S.C.  797(a)–(g).
96 See Michael C. Blumm & Viki A. Nadol, The Decline of the Hydropower Czar and the Rise of Agency Pluralism in Hydroelectric Relicensing, 26 Colum. J. Envtl. L. 81, 86 (2001).
97 16 U.S.C.  797(e).
98 Department of Energy Organization Act, 42 U.S.C.  7172(a)(1). Essentially, FERC took over for FPC, and began overseeing waterpower along with the sale of electricity and gas. See id.  7172(a)(1)(A)–(F).
99 Natural Gas Act, ch. 556, 52 Stat. 821 (1938) (current version at 15 U.S.C.  717, 717a–717w (2000)).
100 Natural Gas Policy Act of 1978, Pub.L. 95–621, Nov. 9, 1978, 92 Stat. 3350 (current version at 15 U.S.C.  3301, 3361–3364, 3371–3375, 3391–3394, 3411, 3412, 3414–3416, 3418, 3431, 3432 (2000)).
101 Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95–617, 92 Stat. 3117 (1978) (codified as amended in scattered sections of 15 U.S.C., 16 U.S.C. & 43 U.S.C.)).
102 Office of Federal Procurement Policy Act, 41 U.S.C.  401–402 (1974) (repealed 1996).
103 64 Am. Jur. 2D Public Utilities  207 (2001); see also FERC, About FERC, at http://www.ferc.fed.us/About/about.htm (last visited Nov. 7, 2002) [hereinafter About FERC]. FERC’s primary responsibilities include: (1) regulating “the transmission and sale of natural gas for resale in interstate commerce”; (2) regulating “the transmission of oil by pipeline in interstate commerce”; (3) regulating “the transmission and wholesale sales of electricity in interstate commerce”; (4) licensing and inspecting “private, municipal and state hydroelectric projects”; (5) oversight of “environmental matters related to natural gas, oil, electricity and hydroelectric projects”; (6) administering “accounting and financial reporting regulations on the conduct of jurisdictional companies”; and (7) approving “site choices as well as abandonment of interstate pipeline facilities.” About FERC supra.
104 Department of Energy Organization Act, 42 U.S.C.  7131 (2000).
105 Id.  7171(a).
106 Geoffrey P. Miller, Introduction: The Debate of Independent Agencies in Light of Empirical Evidence, 1988 Duke L.J. 215, 217.
107 Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 472 (D.C. Cir. 1982), aff’d mem. sub nom. Process Gas Consumers Group v. Consumer Energy Council of Am., 463 U.S. 1216 (1983).
108 See generally H.R. Conf. Rep. No. 95–539 (1978), reprinted in 1977 U.S.C.C.A.N. 925 (discussing the creation of FERC as an independent regulatory agency to prevent abuse in the power trading industry). Power trading involves the sale of wholesale electric power. FERC, What FERC Does, at http://www.ferc.fed.us/home/whatfercdoes.asp. FERC approves the pricing for such transactions. Id.
109 See Synar v. United States, 626 F. Supp. 1374, 1398 (D.D.C. 1986), aff’d on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986). The court also commented, “It is not as obvious today as it seemed in the 1930’s that there can be such things as genuinely ‘independent’ regulatory agencies . . . .” Id.
110 See Jeffrey H. Bowman, The Constitutionality of Independent Regulatory Agencies Under the Necessary and Proper Clause: The Case of the Federal Election Commission, 4 Yale J. on Reg. 363, 366–68 (1987).
111 See Bowsher, 478 U.S. at 723–28.
112 Humphrey’s Executor v. United States, 295 U.S. 602, 632 (1935) (holding that independent agencies are constitutional).
113 Id. at 625–26 (discussing the creation of the Federal Trade Commission, another independent agency).
114 See, e.g., Blumm & Nadol, supra note 96, at 88 (“Unfortunately, FERC historically has resisted not only [the Electric Consumer Protection Act’s] requirements, but also other statutory measures protective of environmental interests.”); F. Lorraine Bodi, FERC’s Mid-Columbia Proceeding: Ten Years and Still Counting, 16 Envtl. L. 555, 580 (1986) (“The mid-Columbia proceeding is a prime example of FERC’s inability to deal promptly and effectively with requests to modify existing project licenses and protect fishery resources.”); Lydia T. Grimm, Fishery Protection and FERC Hydropower Relicensing Under EPCA: Maintaining a Deadly Status Quo, 20 Envtl. L. 929, 930 (1990) (“FERC sees itself as an energy agency making decisions that affect power needs and economics rather than an environmental agency making decisions that affect natural resources.”).
115 Harvey Wasserman, Power Struggle. (Economic Aspects of Utilities Deregulation), Multinat’l Monitor, June 1, 2001, at 9, available at 2001 WL 15520488.
116 See Department of Energy Organization Act, 42 U.S.C.  7172(a)(1)(A), (D) (2000).
117 See id.  7111(2).
118 See Kurt Stephenson, Taking Nature into Account: Observations About the Changing Role of Analysis and Negotiation in Hydropower Re-Licensing, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 473, 474 (2000). In addition, waterpower is “clean” in the sense that it does not produce the typical air pollution associated with the combustion of fossil fuels. See Beth C. Bryant, FERC’s Dam Decommissioning Authority Under the Federal Power Act, 74 Wash. L. Rev. 95, 97 (1999); Charles R. Sensiba, Comment, Who’s in Charge Here? The Shrinking Role of the Federal Energy Regulatory Commission in Hydropower Relicensing, 70 U. Colo. L. Rev. 603, 609–10 (1999).
119 See Stephenson, supra note 118, at 475. See generally Michael T. Pyle, Beyond Fish Ladders: Dam Removal as a Strategy for Restoring America’s Rivers, 14 Stan. Envtl. L.J. 97 (1995) (reviewing the environmental dangers posed by dams, including threats to fish, plant life, and rivers).
120 See Stephenson, supra note 118, at 477. But see Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law, and Society 36 (2d ed. 1998) (stating that the perceived choice between “progress” and environmental quality is, to most modern environmental analysts, simply a classic false tradeoff: “In the long term both goals are inseparable; in the short term they can and must be reconcilable.”).
121 See, e.g., Bryant supra note 118, at 96 (declaring that FERC “earned a reputation as a friend of the hydroelectricity industry and a nemesis of environmentalists”); Stephenson, supra note 118 at 487–88 (recognizing that FERC has been charged with placing too much emphasis on hydropower interests).
122 See Scenic Hudson Pres. Conference v. Fed. Power Comm’n, 354 F.2d 608, 613 (2d Cir. 1965) (“Congress gave the Federal Power Commission sweeping authority and a specific planning responsibility.”).
123 California v. FERC, 495 U.S. 490, 499 (1990).
124 See Stephenson, supra note 118, at 484–85.
125 See Michael C. Blumm, A Trilogy of Tribes v. FERC: Reforming the Federal Role in Hydropower Licensing, 10 Harv. Envtl. L. Rev. 1, 2–6 (1986). The author notes that thirty-four lawsuits were filed by 1984 in response to FERC’s hydroelectric decisions. Id. at 3.
126 Electric Consumers Protection Act of 1968, Pub. L. No. 99–495, 100 Stat. 1243 (1986) (codified in scattered sections of 16 U.S.C.  791a–825r (2000)).
127 16 U.S.C.  797(e) (2000).
128 See Grimm, supra note 114, at 943.
129 Energy Policy Act of 1992, Pub. L. No. 102–486, 106 Stat. 2776 (1992) (codified in scattered sections of 16 U.S.C., 25 U.S.C., 26 U.S.C., 30 U.S.C. & 42 U.S.C.).
130 See 16 U.S.C.  811 (2000) (directing FERC to protect fish and their natural migratory patterns by requiring dam licensees to construct a fishway so fish have safe passage around a river dam).
131 See Stephenson, supra note 118, at 488.
132 See, e.g., PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 701–02 (1994).
133 See id.
134 Id. at 713–14.
135 See Am. Rivers v. FERC, 201 F.3d 1186, 1206–11 (9th Cir. 2000).
136 See Blumm & Nadol, supra note 96, at 117.
137 See Sarah C. Richardson, The Changing Political Landscape of Hydropower Project Relicensing, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 499, 531 (2000).
138 See generally Donald H. Clarke, Relicensing Hydropower: The Many Faces of Competition, 11 Nat. Resources & Env’t 8 (1996) (discussing how FERC has increasingly taken non-developmental considerations into account when formulating policy).
139 See U.S. Dep’t of Energy, U.S. Department of Energy Environmental Justice Strategy Executive Order 12,898, Apr. 1995 (1995) (identifying five factors in regards to environmental justice by which “the Department of Energy will function in a leadership role”), available at http://www.em.doe.gov/stake/envjus.html (last visited Feb. 8, 2002).
140 See id. The Department of Energy anticipated that it could achieve its goals by: (1) Heightening its “sensitivity to identifying and addressing disproportionately high and adverse human health and environmental effects of . . . [its] programs, policies, and activities on minority communities and low-income communities”; (2) “[p]rotecting human health and restoring the quality of the environment and level of safety” for its workers’ communities; (3) “[e]nsuring full compliance with existing environmental, health, and safety laws, regulations, and statutes”; 4) “[e]nhancing procedures to detect and mitigate potential disproportionately high and adverse human health or environmental effects of . . . [its] planned programs, policies, and activities and to promote non-discrimination among various population segments”; and (5) “[f]ocusing on a ‘Partnership in Participation Approach’ with . . . [its] stakeholders including the general public, affected communities, Federal, Tribal, State, and local governments in the early stages of planning and implementing environmental justice procedures.” Id.
141 See id.
142 See generally About FERC, supra note 103.
143 See id.
144 See generally, Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 Fordham Urb. L.J. 523 (1994) (discussing traditional methods of challenging environmental injustice).
145 Exec. Order No. 12,898,  1–101, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994).
146 See Mank, supra note 66, at 132.
147 See id. These strategies include enhanced public participation, research gathering, protection of natural resources, and enforcement measures related to environmental justice. Id.
148 Exec. Order No. 12,898,  1–101, 59 Fed. Reg. at 7629.
149 Id.  6–604, 59 Fed. Reg. at 7629.
150 Discussed supra notes 69–76 and accompanying text.
151 Exec. Order No. 12,898,  1–102(a), 59 Fed. Reg. at 7629. Other agencies include the Department of Defense, Department of Health and Human Services, Department of Housing and Urban Development, Department of Labor, Department of Agriculture, Department of Transportation, Department of Justice, Department of Interior, Department of Commerce, Environmental Protection Agency, Office of Management and Budget, Office of Science and Technology Policy, Office of the Deputy Assistant to the President for Environmental Policy, Office of the Assistant to the President for Domestic Policy, National Economic Council, and Council of Economic Advisors. Id.
152 See id.
153 Id.  6–604, 59 Fed. Reg. at 7632.
154 Department of Energy Organization Act, 42 U.S.C.  7171(a) (2000); infra Part III.B.
155 See Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 472 (D.C. Cir. 1982) (noting in regard to independent and executive agencies that “[t]here has been a general breakdown in any distinction between the functions of the two types of agenc[ies]”), aff’d mem. sub nom. Process Gas Consumers Group v. Consumer Energy Council of Am., 463 U.S. 1216 (1983).
156 See, e.g., City of Tacoma, Washington, 86 F.E.R.C.  61,311 (1999) (recognizing that FERC is an independent agency and, as such, Executive Order 12,898 does not apply), 1999 WL 177637, at *2.
157 Exec. Order No. 12,898,  6–609, 59 Fed. Reg. at 7632–33.
158 See Sandweiss, supra note 13, at 44 (noting that “[t]he order does not compel any particular substantive result, it only mandates consideration of environmental justice criteria”); cf. Plater et al., supra note 120, at 615 (comparing the National Environmental Policy Act of 1969 (NEPA) to a “paper tiger”). The authors comment that NEPA “contains a great deal of poetic language and precious little that is mandatory.” Id.
159 See, e.g., City of Tacoma, 86 F.E.R.C.  61,311 (1999) (finding that the Order “is intended to improve the internal management of the Executive Branch, [and] does not create any legally enforceable rights”), 1999 WL 177637, at *2. Still, for the agencies that have adopted the Order’s principles, it has become a valuable tool for fighting environmental injustice. See Mank, supra note 66, at 133 (noting that administrative law judges for EPA, NRC, and the Department of the Interior have upheld the order in administrative proceedings).
160 See Civil Rights Act of 1964,  601, 42 U.S.C.  2001d (2000).
161 See, e.g., Michael Fisher, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 Envtl. L. 285, 287 (1995) (arguing that Title VI provides an effective means for presenting environmental justice claims); Bradford C. Mank, Title VI, in The Law of Environmental Justice, supra note 66, at 23 (finding that Title VI offers “the best opportunity” for bringing environmental inequity challenges). But see Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1, 47–49 (1996) (questioning the efficacy of Title VI and cautioning environmental justice proponents against overreliance).
162 Unlike Executive Order No. 12,898, Title VI does not apply to low-income communities. See Civil Rights Act of 1964,  601, 42 U.S.C.  2001d.
163 See id.  601, 602, 42 U.S.C.  2000d, 2000d-1.
164 See infra Part III.B.2.
165 Civil Rights Act of 1964,  601, 42 U.S.C.  2000d.
166 See Julia B. Latham Worsham, Disparate Impact Lawsuits Under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. Envtl. Aff. L. Rev. 631, 644–45 (2000).
167 See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 610–11 (1983) (Powell, J., concurring); Julie H. Hurwitz & E. Quita Sullivan, Using Civil Rights Laws to Challenge Environmental Racism: From Bean to Guardians to Chester to Sandoval, 2 J.L. Soc’y 5, 23–24 (2001).
168 See Hurwitz & Sullivan, supra note 167, at 24–25; Latham Worsham, supra note 166, at 646.
169 See Latham Worsham, supra note 166, at 645. Section 602 reads: “Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity . . . is authorized and directed to effectuate the provisions of section 2000d of this title.” Civil Rights Act of 1964,  602, 42 U.S.C.  2000d-1.
170 See Lazarus, supra note 26, at 834.
171 See id.
172 See, e.g., Lau v. Nichols, 414 U.S. 563, 568 (1974) (allowing plaintiff to proceed under disparate impact theory); Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 937 (3d Cir. 1997) (holding that parties may proceed under section 602 on a showing of discriminatory effect alone), vacated, 524 U.S. 974 (1998).
173 See 532 U.S. 275, 293 (2001); Lisa S. Core, Note, Alexander v. Sandoval: Why a Supreme Court Case About Driver’s Licenses Matters to Environmental Justice Advocates, 30 B.C. Envtl. Aff. L. Rev. 191, 193–213, 224–28 (2002). In a five-to-four decision the majority declared, “Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under  602. We therefore hold that no such right of action exists.” 532 U.S. at 293.
174 Id.
175 Adele P. Kimmel et al., The Sandoval Decision and Its Implications for Future Civil Rights Enforcement, 76 Fla. B.J. 24, 24 (Jan. 2002).
176 Cf. Core, supra note 173, at 236–42 (arguing that Sandoval also “signaled the impossibility of using 42 U.S.C.  1983 as an enforcement mechanism” for disparate impact regulations enacted pursuant to section 602 of Title VI). But see Kimmel et al., supra note 175, at 27 (noting that the Sandoval decision “leaves open the question of whether Title VI’s disparate impact regulations may be enforced against public recipients of federal funds under 42 U.S.C.  1983”).
177 Civil Rights Act of 1964, 42 U.S.C.  2000d (2000).
178 Id.  2000d-4a(1)(A).
179 Id.  2000d-4a(2)(A).
180 Id.  2000d-4a(3)(A).
181 Soberal-Perez v. Heckler, 717 F.2d 36, 38 (2d Cir. 1983).
182 See Williams v. Glickman, 936 F. Supp. 1, 6 (D.D.C. 1996). The court stated:
The plaintiffs claim that it would be “inconceivable” that Title VI should not apply to discrimination by federal agencies. However, the language of the statute and the cases addressing the issue support just that conclusion. The Court does not have the authority to redraft an unambiguous statute and ignore established case authority. Therefore, the Court will also dismiss the plaintiffs’ Title VI claims.
Id.
183 However, environmental justice advocates could bring suit against a state or local agency that received federal funding from FERC and subsequently discriminated in its decisionmaking process. See Heckler, 717 F.2d at 38.
184 See, e.g., Cole, supra note 144, at 540–41 (suggesting that the equal protection doctrine is the worst option for plaintiffs looking to challenge environmental discrimination); Donna Gareis-Smith, Environmental Racism: The Failure of Equal Protection to Provide a Judicial Remedy and the Potential of Title VI of the 1964 Civil Rights Act, 13 Temp. Envtl. L. & Tech. J. 57, 58 (1994) (finding that the requirements of the Equal Protection Clause have presented the most significant hurdle for plaintiffs); Lazarus, supra note 26, at 829–35 (stating that the equal protection doctrine has not been hospitable to environmental justice arguments).
185 See Cole, supra note 144, at 541.
186 See Cole & Foster, supra note 61, at 126.
187 See discussion infra Part III.C.
188 U.S. Const. amend. V.
189 U.S. Const. amend. XIV,  1.
190 See Philip Weinberg, Equal Protection, in The Law of Environmental Justice, supra note 66, at 3.
191 See id.
192 426 U.S. 229, 242–44 (1976).
193 Id. at 240 (holding that “the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose”).
194 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”).
195 See id. at 266.
196 Id.
197 Id. For an example of the type of evidence needed to overcome this hurdle, see Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886), where the Supreme Court found that the only possible conclusion for the disparate impact shown by the plaintiff was hostility to the plaintiff’s race.
198 See Fisher, supra note 161, at 306.
199 See Jill E. Evans, Challenging the Racism in Environmental Racism: Redefining the Concept of Intent, 40 Ariz. L. Rev. 1219, 1280–88 (1998).
200 482 F. Supp. 673, 677–79 (S.D. Tex. 1979).
201 See id. at 678–79.
202 Id. at 679.
203 See id. at 677.
204 706 F. Supp. 880, 881–84 (M.D. Ga. 1989), aff’d, 888 F.2d 1573 (11th Cir. 1989), amended by 896 F.2d 1264 (11th Cir. 1989).
205 Id. at 884.
206 Id.
207 768 F. Supp. 1144, 1150 (E.D. Va. 1991), aff’d, 977 F.2d 573 (4th Cir. 1992).
208 Id. at 1148.
209 Id. at 1150.
210 Cf. K.G. Jan Pillai, Neutrality of the Equal Protection Clause, 27 Hastings Const. L.Q. 89, 97–98 (1999) (stating that “the Supreme Court has made the task of proving intentional discrimination—in the absence of some so-called ‘smoking gun’ evidence—ex-tremely difficult”).
211 See Weinberg, supra note 190, at 6–7.
212 See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (requiring proof of racially discriminatory intent or purpose to show a violation of the Equal Protection Clause).
213 See, e.g., Sheila Foster, Race(ial) Matters: The Quest for Environmental Justice, 20 Ecology L.Q. 721, 729 (1993) (“Often no visible smoking gun exists behind the decision to place a toxic facility in a neighborhood composed primarily of racial minorities.”); Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. Kan. L. Rev. 271, 306–12 (1992) (finding that injuries such as disparate waste siting are not usually accompanied by evidence of motive); Gerald Torres, Environmental Burdens and Democratic Justice, 21 Fordham Urb. L.J. 431, 442 n.73 (1994) (concluding that “in this day and age, few would be so obtuse as to admit, on the record, that he or she made a particular decision based upon purely racial considerations. There are few ‘smoking guns’ when it comes to racial discrimination.”).
214 Id.
215 An advanced search of FERC’s online database of administrative decisions revealed only a limited treatment of the issue. See About FERC, supra note 103 (last searched Mar. 14, 2002).
216 Maritimes & Northeast Pipeline, L.L.C., 81 F.E.R.C.  61,166 (1997), 1997 WL 812154, at *13.
217 City of Tacoma, Washington, 86 F.E.R.C.  61,311 (1999), 1999 WL 177637, at *2–3.
218 See, e.g., Millennium Pipeline Co., 97 F.E.R.C.  61,292 (2001) (interim order), 2001 WL 1631910, at *46.
219 See id. (including only four paragraphs of discussion on environmental justice out of 199 total pages).
220 See, e.g., Georgia Power Co., 98 F.E.R.C.  61,105 (2002), 2002 WL 127090, at *4.
221 See supra Part II.B.
222 Department of Energy Organization Act, 42 U.S.C.  7171(a) (2000); see discussion supra note 115.
223 Synar v. United States, 626 F. Supp. 1374, 1398 (D.D.C. 1986), aff’d on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).
224 See A. Michael Froomkin, In Defense of Administrative Agency Autonomy, 96 Yale L.J. 787, 787–89 (1987).
225 See id.
226 See 44 U.S.C.  3502(5) (2001) (repealed 2002). Independent agencies include the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Housing Finance Board, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Rate Commission, and the Securities and Exchange Commission. Id.
227 See generally In re La. Energy Servs., L.P., 45 N.R.C. 367 (1997).
228 Id.
229 Id. at 385.
230 Id.
231 Id. at 381–87.
232 See id.
233 See La. Energy Servs., 45 N.R.C. at 381–87.
234 See supra Part III.
235 See Under Pressure from Hillary Clinton and Others, FERC Schedules September 4 Meeting in Mount Vernon, New York on Millennium Pipeline, Foster Nat. Gas Rep., Aug. 16, 2001, at 11 [hereinafter Under Pressure], available at 2001 WL 7697383.
236 Id.
237 See Millennium Pipeline Co., 97 F.E.R.C.  61,292 (2001) (interim order), 2001 WL 1631910, at *2.
238 Id.
239 See Under Pressure, supra note 235, at 11.
240 See generally Millennium Pipeline, 97 F.E.R.C.  61,292, 2001 WL 1631910.
241 See id. at *46.
242 See Under Pressure, supra note 235, at 11.
243 Id. Initially, even Senator Clinton’s request for an additional public hearing on the project was denied by FERC. Id.
244 See Millennium Meets New Struggle in Charge of Environmental Racism, Nat. Gas. Wk., Jan. 14, 2002, at P1 [hereinafter Millennium Meets New Struggle], available at 2002 WL 8297039.
245 See Under Pressure, supra note 235, at 11.
246 See Millennium Meets New Struggle, supra note 244, at P1.
247 See Kate Stone Lombardi, Under Whose Backyard?, N.Y. Times, Feb. 3, 2002,  14WC.
248 See Motion of the City of Mount Vernon for Rehearing of the Interim Order and for Reopening of the Record on the Proposed Millennium Pipeline Project at 6, Millennium Pipeline Co., 97 F.E.R.C.  61,292 (2001) (No. CP98–150–003).
249 Id.
250 Telephone Interview with Michael Zarin, Zarin & Steinmetz (Mar. 14, 2002).
251 E.g., Cole, supra note 144, at 526 (ranking environmental statutes ahead of civil rights and constitutional challenges as the best vehicles for pursuing environmental justice claims); Sheila R. Foster, Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decision Making, [2000 News & Analysis] 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,992, 10,994 (Nov. 2000) (discussing the problems with civil rights challenges in the environmental justice context, and claiming that “the most successful legal challenges are based on environmental law”); Torres, supra note 213, at 437 (stating that environmental justice claims under statute have enjoyed more success than anti-discrimination causes of action); see also Barry E. Hill & Nicholas Targ, The Link Between Protecting Natural Resources and The Issue of Environmental Justice, 28 B.C. Envtl. Aff. L. Rev. 1, 36–37 (2000) (discussing environmental justice principles embedded within environmental statutes); Nicholas Targ, Environmental Justice Issues Under Existing Statutory Authority, in Environmental Law 529, 538–39 (A.L.I.-A.B.A. Course of Study, Feb. 7, 2001) (noting that existing environmental law provides many opportunities for advancement of environmental justice) [hereinafter Targ, Environmental Justice Issues], available in Westlaw, SF56 ALI-ABA 529.
252 See Cole, supra note 144, at 527 (“Environmental law challenges in the context of environmental justice struggles have a proven track record of success.”).
253 See Targ, Environmental Justice Issues, supra note 251, at 531–32 (discussing the ability of EPA to address environmental justice concerns under statutory authority).
254 See Cole, supra note 144, at 528. The author, a prolific environmental justice commentator, concludes that traditional environmental law is perhaps the most valuable tool for proponents of environmental justice. See id. at 526–28. “Th[e] nuts-and-bolts knowledge of arcane statutes is the least sexy part of environmental justice law, to be sure, but perhaps the most important.” Id. at 528.
255 Id. at 526–28.
256 See Torres, supra note 213, at 437.
257 See discussion supra Parts III.B, .C.
258 See Sheila Foster, Public Participation, in The Law of Environmental Justice, supra note 66, at 185.
259 See id.
260 See id. at 185(86.
261 See id. at 185(89.
262 See Robert R. Kuehn, Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic, 4 Wash. U. J.L. & Pol’y 33, 48(50 (2000). Kuehn details how EPA granted, for the first time, a citizens petition filed under the Clean Air Act. See id. at 50.
263 See, e.g., El Pueblo Para el Aire y Agua Limpio v. County of Kings, [1992] 22 Envtl. L. Rep. (Envtl. L. Inst.) 20,357, 20,358 (Cal. Sup. Dec. 30, 1991) (finding a permitting decision regarding a hazardous waste incinerator to be invalid, in part, because authorities failed to include the predominantly Latino community in the decisionmaking process).
264 See generally Luke W. Cole, Macho Law Brains, Public Citizens, and Grassroots Activists: Three Models of Environmental Advocacy, 14 Va. Envtl. L.J. 687 (1995) (discussing the benefits of statutory public participation requirements in the environmental justice context); Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 Stan. Envtl. L.J. 3 (1998) (same).
265 See Lazarus, supra note 26, at 856–57.
266 See Torres, supra note 213, at 450. Torres states that “few statutes—state or federal—require agency officials to consider the racial or distributional effects of an environmental decision or action. Therefore . . . a claim that relies upon a traditional environmental statute often does not necessarily affect the . . . process through which environmental benefits and burdens are distributed.” Id.
267 President’s Memorandum on Environmental Justice, 30 Weekly Comp. Pres. Doc. 279 (Feb. 11, 1994).
268 Id.
269 See id.
270 See infra Part IV.C.2.
271 See infra Part IV.C.4.
272 National Environmental Policy Act of 1969  2, 42 U.S.C.  4321 (2000).
273 See Plater et al., supra note 120, at 611.
274 Id.
275 Id.
276 See 42 U.S.C.  4332(2)(C).
277 Id.  4332(2)(C)(i).
278 Id.  4332(2)(C)(iii).
279 See 40 C.F.R.  1502.19 (2002).
280 See Plater et al., supra note 120, app. at 57.
281 See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).
282 See id. at 97.
283 See Plater et al., supra note 120, app. at 57.
284 40 C.F.R.  1500.3 (2002).
285 40 C.F.R.  1508.12 (2002).
286 Cf. The National Historic Preservation Act, 16 U.S.C.  470f (2002) (demonstrating that independent agencies have been expressly included in some other provisions). The provision reads:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.
Id. (emphasis added).
287 See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 99 n.12 (1983). The Court clarified the scope of its decision: “[W]e do not decide whether [CEQ’s NEPA regulations] have binding effect on an independent agency.” Id.
288 See, e.g., Sierra Club v. United States Nuclear Regulatory Comm’n, 862 F.2d 222, 229 (9th Cir. 1989); Steamboaters v. FERC, 759 F.2d 1382, 1393 n.4 (9th Cir. 1985).
289 See 18 C.F.R.  380.1–.3 (2002).
290 President’s Memorandum on Environmental Justice, 30 Weekly Comp. Pres. Doc. 279 (Feb. 11, 1994).
291 See id.
292 Council on Envtl. Quality, Environmental Justice, Guidance Under the National Environmental Policy Act 1 (1997) [hereinafter CEQ Guidance], at http:// ceq.eh.doe.gov/nepa/regs/ej/justice.pdf (last visited Nov. 18, 2002). This guidance does not create any judicially enforceable right. Id. at 23.
293 See id. at 8.
294 See id. at 9. The principles are: (1) area composition; (2) public health data; (3) cultural and economic factors; (4) public participation; (5) community representation; and (6) tribal representation. Id.
295 40 C.F.R.  1508.8 (2002); see also id.  1508.14.
296 Id.  1508.8.
297 See CEQ Guidance, supra note 292, at 8.
298 Council on Envtl. Quality, Considering Cumulative Effects Under the National Environmental Policy Act, 2, 8 tbl.1–2 (1997) at http://ceq.eh.doe.gov/nepa/ ccenepa/sec1.pdf (last visited Nov. 9, 2002).
299 See, e.g., Sierra Club v. Marsh, 714 F. Supp. 539, 559, 582 (D. Me. 1989), amended by 744 F. Supp. 352 (D. Me. 1989), aff’d, 976 F.2d 763 (1st Cir. 1992); Colo. River Indian Tribes v. Marsh, 605 F. Supp. 1425, 1441 (C.D. Cal. 1985).
300 See, e.g., In re La. Energy Servs., 47 N.R.C. 77 (1988); S. Utah Wilderness Alliance, 150 I.B.L.A. 158 (1999).
301 Clean Air Act, 42 U.S.C.  7401–7671q (2000).
302 Clean Air Amendments of 1970, Pub. L. No. 91–604, 84 Stat. 1675 (codified as amended at 42 U.S.C.  7407–7414, 7525, 7541, 7571–7574, 7603–7609, 7641–7642 (2000)).
303 Clean Air Act Amendments of 1977, Pub. L. No. 95–95, 91 Stat. 685, amended by Pub. L. No. 95–190 (codified as amended at 42 U.S.C.  4362, 7419–7428, 7470–7479, 7491, 7501–7508, 7548–7551, 7616–7626 (2000)).
304 Clean Air Act Amendments of 1990, Pub. L. No. 101–549, 104 Stat. 2399 (codified as amended at 42 U.S.C.  7429–7431, 7492, 7505a, 7506a, 7509–7515, 7552–7554, 7581–7590, 7651, 7661, 7671 (2000)).
305 See 42 U.S.C.  7401(a)(2).
306 Id.  7401(b)(1).
307 See Plater et al., supra note 120, at 441–49.
308 Id.
309 See President’s Memorandum on Environmental Justice, 30 Weekly Comp. Pres. Doc. 279 (Feb. 11, 1994).
310 Id.
311 Clean Air Act, 42 U.S.C.  7609(a) (2000).
312 See National Environmental Policy Act of 1969, 42 U.S.C.  4332(2)(C) (2000).
313 Office of Fed. Activities, U.S. Envtl. Prot. Agency, Pub. No. 2252A, Final Guidance for Consideration of Environmental Justice in Clean Air Act 309 Reviews  2.1, at 10 (July 1999) [hereinafter EPA Guidance], at http://www.epa.gov/compliance/resources/policies/nepa/enviro_justice_309review.pdf.
314 42 U.S.C.  7609(b).
315 40 C.F.R.  1504.2 (2002).
316 See Envtl. L. Inst., Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities 81 (Nov. 2001).
317 See id.
318 See generally EPA Guidance, supra note 313. Like the NEPA guidance, this guidance does not create any judicially enforceable right. Id. at 1 (disclaimer).
319 Id.  2.1, at 10.
320 Id.  2.3, at 11.
321 See id.  2.4.1–.4.3, at 16.
322 See id.  3, at 16–22.
323 Id.
324 See id.  2.4.1, at 16.
325 See EPA Guidance, supra note 313,  2.4.2, at 16.
326 See id.  2.4.1–.4.2., at 16.
327 See id.
328 Order Responding to Referral to Council on Environmental Quality, 75 F.E.R.C.  61,208, 1996 WL 280826, at *6 (1996).
329 Id.
330 Id.
331 Id.
332 See 18 C.F.R.  380.1 (2002).
333 See 40 C.F.R.  1504.1–.3 (2002).
334 See 18 C.F.R.  380.1.
335 See Clean Air Act, 42 U.S.C.  7609 (2000).
336 See 40 C.F.R.  1504.3(f)(3), (5).
337 See id.  1504.3(f)(7).
338 This relative lack of case law may be due to the fact that many problems are worked out in the negotiation process between CEQ, EPA, and the offending agency.
339 See generally, e.g., Sylvester v. United States Army Corps of Eng’rs, 884 F.2d 394 (9th Cir. 1989); Nat’l Wildlife Fed’n v. Goldschmidt, 677 F.2d 259 (2d Cir. 1982).
340 884 F.2d 394, 398.
341 Id. at 399.
342 Id.
343 Id. at 398.
344 Id. at 399.
345 Id.
346 884 F.2d at 399.
347 Id. at 398–99.
348 See 677 F.2d 259, 261–62 (2d Cir. 1982).
349 Id. at 262.
350 See id.
351 See supra Parts I.C (EPA), IV.C.2 (CEQ).