[*PG631]DISPARATE IMPACT LAWSUITS UNDER TITLE VI, SECTION 602: CAN A LEGAL TOOL BUILD ENVIRONMENTAL JUSTICE?
Over the past decade, environmental justice commentators and advocates increasingly have focused on the role that Title VI of the Civil Rights Act of 1964 could play in remedying environmental problems in communities of color. Specifically, this attention recently has targeted the application of civil rights law to the processes employed by government actors in issuing industrial use facility siting permits and the disparate impacts that these practices have on minorities. Ironically, there is no controlling authority regarding whether such suits legitimately may be brought, or what their requirements and parameters might be. This article explores the development of such suits and probes their potential contours, ultimately suggesting how courts might address such issues as standing, burdens of proof, the elements of the prima facie case, and remedies.
We feel that they are here because we’re black. And we are being viewed as powerless, even though we may not be. We’re being viewed as being vulnerable. We’re being viewed as being politically insignificant. And that’s why we believe they are here. We believe that it is environmental racism.1
—Zulene Mayfield, Chairperson of Chester Residents Concerned for Quality of Living
For almost twenty years, environmental justice advocates have been exposing and opposing the fact that communities of color bear [*PG632]a disproportionately high burden of environmental hazards.2 Community groups and environmental and civil rights attorneys involved in the environmental justice movement have used a number of legal tools in their fight for recognition and eradication of the problem, including a variety of environmental laws,3 civil rights laws,4 common law property claims,5 and constitutional challenges.6 In the early to mid-1990s, environmental justice advocates began to pay heightened attention to the role that Title VI of the Civil Rights Act of 1964 could play in remedying perceived environmental problems.7 Over the past two years, this effort has focused on the application of civil rights law to the processes employed by states and local municipalities in issuing industrial use facility siting permits and the potentially disparate impacts these processes impose on minorities.
This article seeks to explore the ongoing debate over private claims brought under Title VI against local agencies for issuing permits to industrial facilities that disproportionately impact minority populations. As awareness of racial disparity in the distribution of locally undesirable land uses (LULUs) grows, and other legal and regulatory actions fail to secure equity, disparate impact litigation under Title VI has become a lightning rod. Environmental advocates both praise and critique it, the United States Department of Justice supports it, and business and local governmental concerns roundly condemn it. But, ironically, there is no controlling authority regarding whether disparate impact lawsuits may even be legitimately brought under Title VI, and, if so, what their requirements and parameters might be. Today, the central open question is this: will Title VI be an effective tool to address environmental racism adequately? Section I of this article briefly summarizes the background of the environ[*PG633]mental justice movement and the legal tactics that the movement has used in its attempt to end disparate siting of LULUs. Section II discusses Title VI of the Civil Rights Act of 1964, explaining both its regulatory nature and its potential as a private right of action. Section III explores the contours of private litigation under Title VI and asks whether it can be an effective tool for environmental justice plaintiffs. This article concludes by: (1) acknowledging that, as a civil rights issue, discriminatory siting of objectionable facilities is in its infancy; and (2) posing a series of questions, the answers to which will greatly determine the vitality of Title VI as a tool for environmental justice.
United States Environmental Protection Agency (EPA) Administrator Carol Browner reflected in 1998 that “[t]hirty-four years ago, when the Civil Rights Act was adopted, no one fully appreciated that pollution could also be a means for effecting [sic] some communities more than others.”8 Today, the concept that minorities bear a disproportionate percentage of environmental burdens is at the core of the environmental justice movement.
The modern environmental justice movement traces its roots variously back to either a Texas environmental rights suit filed in 1979,9 or a North Carolina citizens’ protest in 1982.10 In the Texas case, attorney Linda McKeever Bullard, on behalf of the residents of Houston’s Northwood Manor, brought the nation’s first lawsuit that challenged the siting of a waste facility based on violations of the civil rights laws.11 In moving for a preliminary injunction, Ms. Bullard argued that locating a garbage dump in the plaintiffs’ mostly African-American community was an act of racial discrimination in violation of Section 1983 of the Civil Rights Act of 1871.12 Although the court found that the siting decision “seem[ed] to have been insensitive and [*PG634]illogical” and would itself have denied the challenged permit had it been the permitting authority, the court conceded that its role was solely to determine whether the plaintiffs had “established a substantial likelihood of proving that [the Texas Department of Health’s] decision to issue the permit was motivated by purposeful discrimination . . . .”13 Unable to find a substantial likelihood of purposeful discrimination, the court denied the plaintiffs’ motion for preliminary injunction, but also denied the defendant’s motion to dismiss the suit on grounds of abstention, laches, and absence of state action.14 While the plaintiffs did not pursue their equal protection claim after the court’s denial of the plaintiffs’ motion for preliminary injunction, the lawsuit served as a catalyst for the legal arm of the environmental justice movement.
The North Carolina event in 1982 is noted not only for its legal action,15 but also for the predominately African-American community’s protest, modeled after the civil rights protests of the 1960s, against a polychlorinated biphenyl (PCB) landfill.16 This protest brought national attention to the citizens’ cause in Warren County, North Carolina, and resulted in a United States General Accounting Office (GAO) investigation of the demographics of southeastern communities that contained significant landfills.17
The 1983 GAO study, Siting Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities, was among the first studies to focus on the distribution of environmental risks.18 The GAO study confirmed a central allegation of the environmental justice movement—the proposition that racial minorities are burdened by a disproportionate amount of these risks.19 Four [*PG635]years later, the United Church of Christ (UC) Commission for Racial Justice conducted a broader study that examined hazardous waste sites across the country and controlled for factors such as urbanization and regional differences.20 The UC study reported that “[a]lthough socio-economic status appeared to play an important role in the location of commercial hazardous waste facilities, race still proved to be more significant.”21 In fact, “race was consistently a more prominent factor in the location of commercial hazardous waste facilities than any other factor examined.”22
The GAO and UC findings received significant publicity and generated a great deal of both support and criticism.23 In response to growing pressure from academics and government officials, President Bush’s EPA Administrator William K. Reilly eventually established the “Environmental Equity” working group in 1990 to study environmental justice issues.24 EPA’s 1992 Environmental Equity Report confirmed the earlier studies, finding that members of minority populations have “disproportionately greater ‘observed and potential exposure’ to environmental pollutants,”25 and this disproportionality could not be explained by income alone. “[A] comparison between poor, African American, and Hispanic percentages shows that these minority groups are more concentrated in [substandard air quality regions] than the poor population in general.”26
Studies such as those conducted by the GAO, UC, and EPA, and the controversy they engendered, led Dr. Benjamin Chavis, head of [*PG636]the UC’s Commission of Racial Justice, to coin the phrase “environmental racism”27 in 1993 to describe this disproportionate environmental impact on racial minorities. Dr. Chavis defined the term:
Environmental Racism is . . . racial discrimination in environmental policy making and the unequal enforcement of environmental laws and regulations. It is the deliberate targeting of people of color communities for toxic waste facilities and the official sanctioning of life-threatening presence of poisons and pollutants in people of color communities.28
Professor Robert Bullard, Director of the Environmental Justice Resource Center at Clark Atlanta University and a prolific commentator on environmental justice issues, proffered a less intent-focused definition of environmental racism and emphasized the unequal results of the practice:29
[A]ny policy, practice, or directive that, intentionally or unintentionally, differentially impacts or disadvantages individuals, groups, or communities based on race or color; [as well as the] exclusionary and restrictive practices that limit participation by people of color in decision-making boards, commissions, and staffs.30
Although the environmental justice movement has been building momentum over the last decade, it is not without challengers.31 Those who question the assumptions of the movement cite studies that have [*PG637]found that race is not an independent predictor of adverse environmental impacts,32 and both critics and advocates alike have questioned the methodology of some studies frequently cited by environmental justice advocates.33 Critics have also challenged the underlying assumption that disparity is necessarily indicative of racial prejudice, and stress that factors other than racism can account for distributional imbalances in the siting of facilities.34 Any legal approach that seeks to remedy environmental racism will need to confront these arguments.
Environmental justice critics, activists, and scholars alike have offered a variety of theories to explain why the nation’s minorities are disproportionately burdened with environmental pollutants and wastes.35 The primary focus of the environmental justice movement has been on the disparate burdening of minority communities by the initial siting of industrial facilities.36 To address perceived discriminative effects in siting, minority community groups and environmental justice organizations have employed a wide variety of legal strategies including federal and state environmental laws,37 common law tort claims,38 constitutional challenges,39 and civil rights laws.40 This section briefly explores those strategies, highlighting their strengths and limitations, and explains why some advocates have focused on Title VI as a powerful tool for environmental justice.
Luke Cole, Staff Attorney for the California Rural Legal Assistance Foundation and General Counsel for the Center on Race, Pov[*PG639]erty and the Environment, believes environmental laws present the best opportunity for groups to block a disfavored facility.41 His reasons are simple: judges are now comfortable with challenges made under environmental laws, and such laws are reasonably clear and are largely friendly to “credible challenges to improperly permitted facilities.”42 These challenges focus on statutory interpretation and procedure, since many state and federal environmental laws emphasize compliance with the proper procedure for granting siting permits.43 A successful plaintiff can win an order forcing the offending error in the permitting process to be mended before construction of the facility may proceed.44 The resultant delay in facility creation or operation can allow the plaintiff time to build community pressure against the facility, and sometimes delay itself can be enough to deter siting of the facility.45
There are significant drawbacks, however, to seeking environmental justice under federal and state environmental statutes.46 First, because discharge of pollutants is permissible if done in compliance with a valid, properly issued permit, challenges to enforce discharge limits under such permits will not create a balanced distribution of environmental hazards where facilities are already concentrated in minority communities.47 Second, some of the major environmental statutes, such as the National Environmental Policy Act (NEPA) and its state counterparts, are procedural in nature and do not have substantive standards regarding the siting and concomitant concentration of environmentally hazardous facilities.48 As a result, a delay in the siting process or the documentation of potential impacts (e.g., another environmental assessment or environmental impact statement) may be the plaintiff’s only victory, providing a “reprieve rather than a remedy.”49
In addition to challenging siting permits under traditional environmental laws, plaintiff groups have successfully asserted their common law tort rights, such as public or private nuisance or personal injury, against industrial or hazardous waste facilities.50 Such suits, however, may present significant barriers to minority communities as plaintiffs. First, because the plaintiff must prove intentional or unreasonable conduct by the defendant when bringing a public nuisance claim, liability may be hard to establish where the facility is operating in compliance with validly issued environmental permits.51 Second, because the plaintiff must have a property interest to bring a private nuisance action, many environmental justice plaintiffs may not have standing for this cause of action.52 Third, causation in personal injury claims may present a difficult hurdle for plaintiffs due to a lack of information concerning the health effects of toxins.53 Lastly, because common law tort claims are typically geared towards the complaints of individual plaintiffs, with the exception of public nuisance, minority communities may find such suits frustrating and divisive.54
In addition to applying environmental and tort law, environmental justice lawyers also have attempted to establish environmental inequity in the siting of facilities as a violation of the United States Constitution.55 In 1994, Luke Cole commented: “[s]o far, almost every environmental justice civil rights case brought has alleged only a viola[*PG641]tion of the [E]qual [P]rotection [C]lause of the Constitution.”56 In the four published decisions that addressed equal protection challenges to local government siting decisions, all four courts held that the minority plaintiffs failed to prove an intent to discriminate,57 even where disparities in environmental impacts were clearly connected to race.58 This poor success rate can be attributed to the high threshold for proving intentional discrimination in equal protection challenges; the plaintiff must prove that the government purposefully meant to discriminate against minorities in the siting process.59 This is a very difficult standard to meet because it ultimately requires the plaintiff to prove that the discriminatory decision was made because of its adverse effects on the minority community, not in spite of those effects.60 Although discriminatory intent may be established circumstantially, the bar set by courts for such evidence is quite high61 and has [*PG642]yet to be met in any environmental justice challenges.62 Because of the poor success rate of such claims, Luke Cole has suggested that they be brought mainly for “political value” in conjunction with another type of challenge that has a greater success rate.63 The power of alleging that a government-funded entity is practicing racism by depriving minorities of the core constitutional right of equal protection may have unique force in raising community awareness and outrage for environmental justice advocates.
The same parallels between traditional civil rights challenges and environmental justice challenges that make equal protection claims appealing for plaintiffs also make other civil rights causes of action compelling.64 Most intriguingly, plaintiffs proceeding under the statutory provisions of various civil rights acts may be relieved of the heavy burden of proving intent to discriminate.65 In the past decade, environmental justice groups, EPA, scholars, and local permitting authorities have focused intense attention on one such civil rights statute: Title VI of the Civil Rights Act of 1964.66
[*PG643] Title VI began to emerge as a possible tool for environmental justice challenges in the early to mid-1990s.67 At that time, leading environmental justice commentators such as Luke Cole and Washington University Law Professor Richard J. Lazarus observed that Title VI had “promise”68 and a “potentially great” reach.69 However, it was only within the past two years that several judicial and administrative decisions interpreted Title VI specifically as it applies to discriminatory siting decisions. These developments may threaten the efficacy of Title VI in environmental justice suits because they could be interpreted [*PG644]to limit significantly the meaning of “disparate impact” and the very legitimacy of a private cause of action for such claims. The remainder of this article focuses upon those decisions and assesses Title VI’s potential as a tool for environmental justice.
To understand the potential effects of recent Title VI decisions, it is first necessary to understand the framework of Title VI in its regulatory and judicial capacities, both as written and as applied. Title VI provides two vehicles under which minorities may seek remedy for discrimination in federally funded programs and activities: Section 601 and Section 602. Section 601 of Title VI70 provides: “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”71 The potential scope of Title VI is broad: even if an allegedly discriminatory program is not specifically designated for federal funding, the clause “program or activity” embraces all activities of a state or local agency that receive federal monies.72 Because virtually all state environmental permitting agencies receive federal funding for their regulatory and environmental protection functions,73 all actions, including permitting decisions, taken by state agencies funded by EPA are amenable to suit under Title VI.74
[*PG645] Similar to equal protection lawsuits, however, environmental justice cases challenging permitting decisions under Section 601 of Title VI must demonstrate intentional discrimination to make a prima facie case.75 As in the equal protection context, it is difficult for plaintiffs to prove improper intent solely on the basis of racial disparities in environmental impact.76 Therefore, direct challenges to state permitting decisions under Title VI, Section 601, are not likely to be an effective legal weapon for environmental justice advocates.77
Title VI, however, provides a second vehicle for environmental justice advocates challenging state facility siting decisions: Section 602.78 Section 602 mandates agencies that distribute federal funds, such as EPA, to promulgate regulations that implement Section 601, and requires agencies to create a framework for processing complaints of racial discrimination.79 EPA’s implementing regulations, adopted in 1973 and amended to their current form in 1984,80 pro[*PG646]scribe recipients of EPA funds from using “criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex . . . .”81 The language of the regulation contemplates a purely discriminatory effect standard.82 Thus, a plaintiff challenging a siting decision under Section 602 is relieved of the formidable task of proving that the permit in question was issued with the intent to discriminate; a showing of discriminatory effect or disparate impact on the basis of race suffices.83 Section 602 holds more promise for environmental justice advocates than Section 601 and will be examined in greater detail.
Despite promulgating regulations under Section 602 in 1973, EPA avoided enforcement of Title VI until 1993.84 Commentators have observed that the agency regarded its central purpose as regulating pollution, and it did not want to weaken this role by revoking funding from state and local environmental authorities, or by delaying its own pollution control efforts in favor of policies not directly focused on that aim.85 EPA reasoned that even if it revoked funding to recipients for discrimination, state and local authorities might continue their objectionable practices, and pollution control could suffer from the lack of funds—ultimately minorities might be adversely affected rather than assisted by the funding sanction.86
[*PG647] However, this pattern of EPA non-enforcement began to change in 1993 when the newly elected Clinton Administration began to pressure the agency about its obligation to meet Title VI’s nondiscrimination mandates.87 In response to the growing interest in environmental justice and siting disparities, on February 11, 1994, President William J. Clinton issued Executive Order 12,898.88 In broad terms, the order instructs all federal agencies to conduct their programs and policies in a manner that achieves environmental justice and promotes non-discrimination against minorities and those with low incomes.89 Although the President’s order appears clear and was supported by EPA Administrator Carol Browner and Attorney General Janet Reno,90 significant uncertainty remains today regarding the mechanism, if any, for enforcing the order.91 The order itself states that it does not create a private right of action under Title VI, nor does it provide for any type of judicial review of regulatory decisions.92 While the order officially secured Title VI a spotlight in the environmental justice debate, it did little to clarify how the remedy would be applied “on the ground.”
EPA responded to the Clinton Administration’s pressure by creating an Office of Civil Rights (OCR) to address its Title VI responsibilities,93 yet the agency continued to receive criticism for processing complaints slowly and conducting secretive investigations.94 Of the [*PG648]fifty-eight environmental justice complaints lodged with the agency between September, 1993 and August, 1998,95 EPA came to no conclusion on at least fifteen,96 and found none to be in violation of Title VI.97 Responding to the President’s executive order and to the confusion surrounding its own largely ignored regulations, EPA issued its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits in February, 1998.98 A month later, the agency created an advisory committee to assist in achieving Title VI compliance.99 The Interim Guidance was drafted to “provide a framework for the processing by EPA’s Office of Civil Rights (OCR) of complaints filed under Title VI . . . alleging discriminatory effects” specifically attending to “complaints that allege discrimination in the environmental permitting context.”100
The Interim Guidance had the potential to be pivotal in the environmental justice movement because it sought to establish a multi-step blueprint for addressing permitting complaints,101 and therefore would answer many of the uncertainties surrounding EPA’s Title VI policies. First, under the Interim Guidance, complaints brought to EPA alleging violations of Title VI must be written, signed, and lodged within 180 days of the occurrence of the “alleged discriminatory acts.”102 An act under the Interim Guidance may include issuance of a new permit or permit modification that results in a “net increase of pollution impacts,” or an existing permit’s renewal.103
[*PG649] Once a complaint is accepted for review, EPA will undertake a five-step analysis to determine whether a disparate impact has been created.104 Initially, EPA must “identify the population affected by the permit that triggered the complaint,” generally determined by proximity to the facility.105 Once the population that “suffers the adverse impacts” is determined, the racial and/or ethnic composition of that population must be established.106 To establish whether a “cumulative burden or patterns of disparate impact exists,”107 EPA must next determine what other permitted facilities should be included in the analysis and the racial compositions of the populations affected by those permits.108 Based upon all of this information, EPA conducts a disparate impact analysis that compares the racial characteristics of the allegedly suffering population with that of the non-affected population to determine whether “persons protected under Title VI are being impacted at a disparate rate.”109 Finally, EPA evaluates the significance of the disparity, which, if statistically significant, results in EPA making a prima facie finding of disparate impact.110
If EPA makes a prima facie determination of discrimination under the guidance, the state permitting agency is afforded an opportunity to rebut the finding or to submit a proposal to mitigate the unequal effects.111 Even where rebuttal of the complainant’s prima facie case or mitigation efforts fail, a party has one last opportunity to avoid loss of funding by “justifying” the issuance of the permit despite the [*PG650]proven disparate effects.112 To do so, the permitting authority must demonstrate a “substantial, legitimate interest . . . some articulable value to the recipient in the permitted activity.”113 These interests may include broader governmental interests, such as: (1) whether the disparate impact is weighty; (2) whether the permit in question is a renewal that provides demonstrated benefits; or (3) whether a newly issued permit is likely to benefit the surrounding community.114 However, EPA will not consider justification where a less discriminatory alternative to the current process of permitting exists.115
Throughout this process, EPA encourages the use of informal resolution where possible, but ultimate failure to comply may lead to denial, suspension, or termination of funding by EPA.116 However, even if EPA’s investigation reveals a violation of Title VI, a fund recipient has many remaining procedural rights. According to EPA’s implementing regulations, if EPA concludes that a funding recipient is in violation of Title VI, the recipient may, within thirty days, request a hearing before an administrative law judge (ALJ).117 Following the ALJ’s findings, the recipient is entitled to appeal the decision to an EPA Administrator.118 While the Administrator has the power to refuse, postpone, or discontinue EPA funding to the particular offending program or “part thereof,” the Administrator must first make a full report regarding the decision to all congressional committees with legislative authority over the program and allow Congress thirty days to respond.119 Further, should EPA decide to terminate funding, the recipient may ask for a judicial review of the agency’s decision.120
Conversely, if EPA’s Office of Civil Rights finds insufficient evidence to indicate that the fund recipient violated Title VI, the agency simply will report this finding to both the complainant and recipient, [*PG651]and dismiss the complaint.121 There is no mechanism for a frustrated complainant to appeal under either the Interim Guidance or EPA regulations. Additionally, commentators have agreed that plaintiffs cannot sue EPA under the Administrative Procedure Act (APA) to challenge the agency’s determination following an investigation into a party’s Title VI compliance.122
The Interim Guidance concludes by stating that it is “intended solely as a guidance” and does not create any enforceable rights in respect to litigation.123 Thus, according to EPA, the Interim Guidance, like the President’s executive order, does not create a private cause of action for claims of discriminatory siting; it creates only an administrative procedure.124 Following the issuance of the Interim Guidance, EPA opened a comment period during which the agency accepted reactions from all sectors.125
Generally, the overall response to the Interim Guidance was negative. During the comment period, industrial corporations represented the largest group to file statements with EPA regarding the Interim Guidance, comprising thirty-two percent of all comments submitted.126 The corporate commentators who challenged and criticized the Interim Guidance were joined in their opposition by a large num[*PG652]ber of other private business and governmental organizations.127 The complaints from government officials and leaders of business communities focused on the projected negative impacts to job growth in minority communities and the lack of input from state and local governments in forming the policy.128
Business concerns and state permitting authorities expressed a basic concern with the post hoc nature of the Title VI regulatory scheme because the disparate impact analysis takes place in isolation from the state permitting process and after the state permit has been issued.129 This raises serious concerns for business, where finality and predictability are key to operating a profitable venture.130 Regarding problems of predictability and planning under the guidance, corporate and government commentators have specifically expressed concern as to: (1) when challenges may be filed in the permitting or facil[*PG653]ity operating process;131 (2) perceived vagaries in EPA’s “disparate impact” analysis;132 (3) whether the funding recipient carries the burden of proof;133 and (4) uncertainty surrounding EPA’s “mitigation” policy.134
[*PG654] While state permitting agencies and business concerns have been quite vocal in their opposition to the Interim Guidance,135 it is more difficult to discern the view of environmental justice advocates.136 Sheila Foster, an Associate Professor of Law at Rutgers School of Law and an environmental justice scholar,137 offered two criticisms of the guidance from the minority community perspective.138 First, though business and governmental concerns criticize the Interim Guidance for having vague and unpredictable standards to identify disparate impact,139 Professor Foster counters that this ambiguity can cut against community groups—a “finding of discriminatory impact is not a given.”140 Specifically, she argues that the third step of the disparate impact analysis141 creates a kind of “scientific myopia.”142 According to Professor Foster, the environmental health of the community as a whole should be considered in the disparate impact analysis, not just the presence of other facilities.143
Professor Foster also raises concerns regarding the opportunity provided in the guidance for fund recipients to justify a finding of disparate impact “based on the substantial, legitimate interests of the recipient.”144 She characterizes this provision of the guidance as vague [*PG655]and, therefore, difficult to critique.145 Her principal concern is that the guidance could be interpreted in a circular fashion based upon the undefined concept of “justification.”146 Despite the document’s statement that compliance with “applicable environmental regulations will not ordinarily be considered a substantial, legitimate justification,”147 such a rationale remains acceptable under the regulations, and it is not clear how much more justification a permitting authority needs to demonstrate.148
In response to the criticisms of the Title VI regulatory procedure detailed in the Interim Guidance, Administrator Browner asked EPA’s Title VI advisory committee and the agency’s Science Advisory Board to review the guidance and to make recommendations.149 In this capacity, the committee has held public meetings throughout the nation and it released its recommendations on March 1, 1999.150 Currently, federal legislation prohibits EPA from using any “funds ‘to implement or administer the interim guidance’” for complaints submitted after October 21, 1998.151 This legislation has no effect on the fifteen com[*PG656]plaints that were pending at the time of its passage, but 42 complaints are now pending, and EPA has yet to release its much anticipated final guidance for Title VI complaints.152
To determine whether the Interim Guidance has clarified EPA’s Title VI investigative procedure, one must assess its effectiveness in application. However, the ability to conduct this type of scrutiny regarding the guidance is severely limited. To date EPA has approximately forty-two environmental justice complaints pending (some since 1993),153 but, despite the fact that commentators anticipated a decision regarding the Shintech polyvinyl chloride (PVC) plant in Louisiana,154 EPA has issued only one final decision under the guidance, the Select Steel case.155 The Shintech near miss and the Select Steel decision shed precious little light on how the policies of the Interim Guidance are applied in practice.
The “Shintech Saga”156 provides rare insight into the way that EPA may pursue statistical analysis, such as demographics, in disparate impact cases under its enforcement of Title VI, and reveals the more [*PG657]common battle of values between environmental justice advocates and business and economic concerns.157 The case, although prematurely terminated by Shintech’s withdrawal from the community, was anticipated to be the first decision made under the Interim Guidance.158 Before EPA released its final decision regarding the disposition of Shintech’s permit (discussed in section IV.B.2 of this article), the chemical company suspended its plans to build in the Convent community of St. James Parish, Louisiana, narrowly averting a precedent-setting “national test case.”159
In August 1997, EPA’s Office of Civil Rights began an investigation of Shintech, Inc., a plastics manufacturing company based in Louisiana, in response to a Title VI administrative complaint filed by the Tulane Environmental Law Clinic.160 The complaint alleged that the Louisiana Department of Environmental Quality’s (LDEQ) issuance of a permit to Shintech violated Title VI and President Clinton’s Executive Order No. 12,898 because it created a disparate impact of [*PG658]environmental burdens based on race.161 The law clinic pointed to the surrounding community’s predominantly black racial composition, the fact that half of the residents earn $15,000 per year or less,162 and the significant environmental burdens already impacting the area.163 The proposed plant was to be located in Convent, a town in the industrial corridor between Baton Rouge and New Orleans already known as “cancer alley” because of the number of petrochemical industries within its boundaries.164
While EPA worked to conduct an appropriate statistical analysis, debate ballooned around the ongoing environmental justice investigation.165 The battle lines were drawn: allegations of “endangering the [*PG659]health of vulnerable citizens”166 who are “already overburdened”167 with carcinogens and other pollutants associated with PVC production versus the potential loss of jobs and other economic benefits associated with the $700 million proposed facility.168 This conflict resulted in split allegiances within the greater African-American community, pitting the Reverend Jesse Jackson169 and the Congressional Black Caucus170 (urging EPA to stop the plant) against the National Black Chamber of Commerce171 and the local chapter of the NAACP172 (supporting the jobs and economic growth the plant would provide to the economically depressed community).
Shintech ultimately suspended plans to build the $700 million facility in Convent and announced on September 17, 1998 that it would pursue instead a permit for a smaller $250 million plant in the up-river town of Plaquemine, Louisiana.173 While EPA did not issue a final disposition in the Shintech case, Administrator Browner characterized the corporation’s decision as a positive one: “[t]he principles applied to achieve this solution should be incorporated into any blueprint for dealing with environmental justice issues in communities across the nation.”174 St. James Parish President Dale Hymel Jr., an advocate for industrial growth in the area, seemed to feel differently: “I don’t see it as a major victory at all; the EPA dropped the ball.”175 However, Shintech President of Manufacturing, Erv Schroeder, gave assurances that the company would establish a broad outreach program to “give unprecedented influence to a community in siting a chemical factory” including “citizens forums [and] individual conversations with community residents . . . .”176
Although Shintech was anticipated to be EPA’s test case for the Interim Guidance, the first case actually decided under the guidance came about a month and a half later. The case involved the Michigan Department of Environmental Quality’s (MDEQ) issuance of a Prevention of Significant Deterioration (PSD) permit to the Select Steel Corporation of America for a steel recycling “mini-mill” in Genesee County, Michigan.177 The Title VI complaint lodged with EPA by Father Phil Schmitter and Sister Joanne Chiaverini of the St. Francis Prayer Center in June of 1998 alleged that the proposed steel mill would cause degradation of air quality and public health effects that would disproportionately impact “a group of minority . . . people.”178 Specifically, the complainants were concerned about emissions of volatile organic compounds (VOCs)—lead, air toxics, and dioxin.179 The complainants also alleged discrimination in the public participation process, citing improprieties in the permitting process, the manner of publication of the notice of the permit hearing, and the location of the hearing.180 Following its review of the allegations, on October 30, 1998, EPA’s Office of Civil Rights determined that the situation did not result in a discriminatory effect because the health effects alleged would not create an “‘adverse’ effect on the community” and the public had ample opportunity for participation.181 EPA thus dismissed the claim.182
The crux of EPA’s Select Steel decision was the agency’s reasoning that “[i]f there is no adverse effect from the permitted activity, there can be no finding of a discriminatory effect which would violate Title VI and EPA’s implementing regulations.”183 Using this logic, EPA first looked at the proposed plant’s projected contributions of VOCs and asked whether those emissions would affect the area’s compliance with the national ambient air quality standards (NAAQS) for ozone.184 EPA determined that the new plant would not affect compliance with [*PG661]the NAAQS.185 Because the NAAQS provide a health-based standard that was set at a presumptively sufficient level to protect public safety, EPA reasoned that there could be no adverse impacts to the affected population when the VOC emissions are within levels prescribed by the NAAQS.186 Where there are no “adverse impacts,” there can be no violation of Title VI or EPA’s implementing regulations.187 EPA’s investigation into lead levels proceeded similarly; EPA determined that because the steel facility would not affect the area’s compliance with the NAAQS for lead, the affected population would suffer no “adverse” impacts from the facility.188
To determine whether the level of air toxins the plant was projected to generate would create adverse health effects, EPA asked whether the airborne concentrations would exceed “thresholds of concern under State air toxins regulations.”189 EPA also considered other major sources of air toxin emissions in the surrounding area, but ultimately found no “adverse” impact in the immediate vicinity of the proposed mill.190 Finally, EPA considered dioxin, stating that “[n]o performance specifications for continuous emissions monitoring systems have been promulgated by the EPA to monitor dioxins.”191 Without a proven monitor, EPA noted that MDEQ had been unable to place such a requirement on Select Steel in the PSD permit.192 Therefore, EPA concluded that there was “no discriminatory effect associated with MDEQ’s decision not to include monitoring requirements for dioxin and that MDEQ did not violate Title VI or EPA’s implementing regulations.”193
Following EPA’s treatment of the claims regarding adverse health effects, it considered the allegations of improprieties in the permit process and notice requirements.194 EPA found no procedural improprieties or notice violations on the part of MDEQ, and stated that MDEQ’s notice was adequate in part, “because the Complainants took it upon themselves to contact other members of the community.”195 [*PG662]However, EPA concluded by recognizing that involving impacted communities early in the permitting process could have better addressed many of the complainants’ issues.196 “Such consultations will better ensure that communities are fairly and equitably treated with respect to the quality of their environment and public health, while providing State and local decision makers and businesses the certainty they deserve.”197
Given the recentness of the Select Steel decision, there has been no notable commentary on the way that the Interim Guidance was finally interpreted in practice. However, one steel industry commentator, Robert Chalfant, views the Select Steel decision as a mixed result.198 On one hand, he applauds EPA for deciding that an impact must be “adverse” in order to create a disparate effect under Title VI.199 Mr. Chalfant quotes the EPA decision with approval: “Some level of pollution is ‘acceptable’ when pollution sources are regulated under individual, facility-specific permits, recognizing society’s demand for such things as power plants, waste-treatment systems, and manufacturing facilities.”200 He also voices the concern, however, that the complaint held up the permit, and some pending complaints have cost some permittees years of delay.201
Although the St. Francis Prayer Center has not released an official comment, Professor Sheila Foster sees the language of the Interim Guidance and the EPA decision in Select Steel as coalescing to create a high standard of liability for fund recipients in Title VI regulatory actions.202 First, Professor Foster challenges EPA’s treatment of [*PG663]“adverse” impacts in the decision. Essentially, she doubts EPA’s logic in finding no disparate impact because the steel mill met the appropriate standards under EPA permitting regulations, i.e., it met the NAAQS; as there was no impact according to the permitting standards, there could be no disparate impact under Title VI.203 This logic does not take into account the existing health conditions in the community and seems to contradict the spirit behind the Interim Guidance’s statement that, “merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered substantial, legitimate justification.”204
Second, Professor Foster finds it troubling that the Interim Guidance allows consideration of only the proposed facility and other facilities in the area in determining whether negative health effects might be anticipated.205 This precludes looking at levels of toxins in the community as a whole, including existing levels of lead in area homes, rather than simply those that are directly connected with emissions.206 A more appropriate standard would consider the affected community as a whole.207
[*PG664] As administrative and political battles were waged over agency procedures and standards for enforcing EPA’s Title VI regulations, a parallel debate ensued in federal courts over the availability of a private right of action under the act. While Executive Order 12,898 states that it does not create a private right of action,208 the EPA Interim Guidance permits individuals to “file a private right of action in court to enforce the nondiscrimination requirements in Title VI or EPA’s implementing regulations without exhausting administrative remedies.”209 Despite the wording of the guidance, it is uncertain whether Title VI allows individuals to enforce the EPA regulations.
The recognition of a private right of action under Section 602 and EPA’s implementing regulations are central to determining whether Title VI will serve as a tool for environmental justice. Although filing a complaint with EPA is relatively inexpensive and is often enough to convince a private permittee to relocate,210 regulatory enforcement has disadvantages. A complainant has no right to participate in EPA’s investigation and there are no time limitations imposed on the agency.211 Even if EPA finds that a fund recipient has engaged in discrimination, EPA’s power to revoke funding is severely constrained by procedural safeguards212 and there is no possibility of direct relief to the complainant or compensation for attorney’s fees.213 Finally, not once in the history of the agency’s civil rights enforcement has EPA found a fund recipient to be in violation of Title VI.
In contrast, a private right of action under Title VI would afford expanded rights to a complainant. A lawsuit alleging disparate impact would provide an opportunity for a plaintiff to conduct her own in[*PG665]vestigation with full discovery,214 allow her to determine what evidence to present,215 and would open the possibilities of equitable relief216 and the recovery of attorney’s fees.217 Although the high costs of hiring a lawyer and conducting a thorough private investigation are clear disadvantages, especially because the court ultimately may not grant the injunction or even attorney’s fees, some commentators feel that the advantages of filing a private suit for disparate impact under Title VI outweigh the disadvantages.218 Whether courts will even recognize such claims, however, is not settled.
While Section 601 of Title VI provides a private cause of action for intentional acts of discrimination on the basis of race,219 it is less certain whether the disparate impact standard of Section 602 is available to private plaintiffs.220 Although court decisions in the mid 1980s may have implied a private right of action for discriminatory effects under Title VI,221 the issue was not directly addressed in an environmental permitting context until 1996 in Chester Residents Concerned for Quality Living v. Seif.222
Chester Residents Concerned for Quality Living (CRCQL), a citizens group, brought suit on May 22, 1996, against the Pennsylvania Department of Environmental Protection (PADEP) challenging the issuance of permits to construct a waste treatment facility in the town of Chester in Delaware County, Pennsylvania.223 The formerly industrial city of 39,000224 is now home to low-income people of color, 100% of Delaware County’s solid waste treatment plants, and 85% of the county’s raw sewage and sludge treatment plants.225 Chester further faces the highest infant mortality rate and the highest death rate from certain malignant tumors in Pennsylvania.226 While Chester has a sixty-five percent African-American population, the remainder of Delaware County is ninety-one percent white.227
CRCQL challenged PADEP’s issuance of a permit to Soil Remediation Services, Inc. (SRS) to operate a waste treatment facility and alleged violations of both Sections 601 and 602 of Title VI.228 The citizen group asserted that the process PADEP employed to issue waste facility permits effectively discriminated against its members by “concentrating the burden of pollution and the negative health effects it causes,” in predominantly African-American Chester.229 The CRCQL complaint alleged that from 1987 to 1996, PADEP granted five permits for waste facilities in Chester, while only two permits were issued in the rest of the county.230 Significantly, the five Chester permits allowed an increase in waste processing capacity of 2.1 million tons per year, in addition to the permit capacity of 44 million gallons of sewage and 17,500 tons of sludge already operating in Chester.231 In contrast, the two waste permits granted for facilities outside of the city each had a permit capacity of 700 tons per year.232 The only census tracts in the county that contained multiple waste facilities were located in [*PG667]predominantly African-American communities.233 According to CRCQL, PADEP’s process of determining the issuance of permits left “the white residents of Delaware County essentially free of the pollution their waste caused.”234
The district court dismissed with leave to amend CRCQL’s Section 601 claim of intentional discrimination, finding that the plaintiff’s allegations amounted to only a disparate effect, not discriminatory intent.235 Although the court found that PADEP’s failure to rectify its permitting procedure amounted to a discriminatory effect on the basis of race,236 the court dismissed with prejudice CRCQL’s claims that PADEP violated EPA’s regulations promulgated under Section 602 of Title VI237 because it found no private cause of action under these regulations.238
[*PG668] In coming to this conclusion, the court relied upon the 1979 Third Circuit Court of Appeal’s decision of Chowdhury v. Reading Hospital & Medical Center,239 which the district court construed as holding that “there is no private right of action under regulations promulgated under Section 602 of Title VI.”240 The district court characterized Chowdhury as reasoning that because plaintiffs do not need to exhaust administrative remedies under Section 602,241 there is a “basic reality” that Title VI regulations do not give individuals a role in the enforcement of administrative regulations.242 Therefore, the court relied upon its understanding of the controlling authority of Chowdhury and refused to find a private cause of action under EPA regulations promulgated under Title VI, Section 602.243
CRCQL chose not to amend its Section 601 claim of intentional discrimination244 and instead appealed the district court’s decision regarding whether a private right of action exists under which indi[*PG669]viduals can enforce EPA’s civil rights regulations.245 On December 30, 1997, the Third Circuit Court of Appeals reversed the district court and, in a (temporary) landmark decision, held that private plaintiffs may maintain an action under the discriminatory effect civil rights regulations of administrative agencies.246 Noting the district court’s reliance on Chowdhury, the court of appeals stated that jurisprudence after the 1979 Chowdhury decision lent support for a private right of action to enforce administrative regulations, and that Chowdhury did not apply the appropriate test for determining when a private right of action can be implied.247
After generally reaffirming the scheme of Title VI,248 the court looked to the 1983 and 1985 Supreme Court decisions of Guardians Association v. Civil Service Commission249 and Alexander v. Choate250 to determine whether CRCQL could proceed under the discriminatory effect standard of EPA’s regulations promulgated under Section 602. Although the Chester court inferred that a majority of the Supreme Court in Guardians had endorsed a private right of action, the court did not find this to be dispositive because Guardians had not directly addressed the availability of a private right of action under discriminatory effect implementing regulations.251 The Chester court also considered the Supreme Court’s subsequent Alexander decision, but found that “Alexander spoke in the passive voice – ‘could make actionable’ – [*PG670]and did not indicate whether Guardians stood for the proposition that a private plaintiff . . . could proceed under a disparate impact standard.”252 Similar to its treatment of Guardians, the Third Circuit declined to rely on Alexander because it could find no direct authority in the decision that confirmed a private right of action.253
Finding no authority from the Supreme Court directly on point, the Chester court next considered decisions from its own circuit.254 Although the district court had relied on the Third Circuit’s twenty-year-old Chowdhury decision in addressing CRCQL’s Section 602 claim, the appellate court rejected this analysis, stating that “Chowdhury says nothing about the appropriateness of implying a private right of action.”255 Because the Chester court found no Third Circuit precedent on point,256 it applied the test that the Third Circuit set forth in 1998 in Polaroid Corporation v. Disney257 that determines when it is appropriate to imply a private right of action to enforce agency regulations.258 The three-prong test asks: (1) whether the agency rule is properly within the scope of the enabling statute; (2) whether the statute under which the rule was promulgated properly permits the implication of a private right of action; and (3) whether implying a private right of action will further the purpose of the enabling statue.259
[*PG671] As to the first prong of the test, the Chester court found that EPA’s discriminatory effect regulations are within the scope of Title VI. The court determined that the first prong was met because “actions having an unjustifiable disparate impact on minorities [can] be redressed through agency regulations designed to implement the purposes of Title VI.”260
To address the second prong of the test, whether the statute under which the rule was promulgated properly permits the implication of a private right of action, the court considered two of the factors set forth by the Supreme Court in Cort v. Ash261: “(1) whether there is ‘any indication of legislative intent, explicit or implicit, either to create such remedy or to deny one’; and (2) whether it is ‘consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.’”262 In applying the first Cort factor, the Chester court asked whether Congress indicated an intent to create a private right of action when it amended Title VI.263 To decide whether the act’s legislative history evidenced a congressional understanding of the discriminatory effect regulations and an intent that private parties could enforce them, the Chester court considered a House Report on an early version of the bill,264 two legislators’ comments in the Congressional Record,265 and a compilation of congressional hearings testi[*PG672]mony,266 which had been offered by the United States as amicus for CRCQL.267 Because PADEP could not cite any statements that undermined the evidence offered by the United States, the court found that there was “some indication” in the legislative history to create a private right of action in satisfaction of the first Cort factor.268
[*PG673] The second Cort factor requires a court to determine whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff . . . .”269 According to PADEP, this was not the case because Section 602 and its regulations, which include strict notice, filing, and time line requirements, are meant to establish EPA as a gatekeeper to enforcement.270 PADEP also argued that the EPA regulations provide a sufficient administrative remedy to private parties who allege unintentional discrimination.271 Therefore, PADEP asserted, the appropriate legislative scheme for enforcing Section 602 and its regulations is for private parties to submit allegations of discriminatory effects to EPA, which will act as a discretionary gatekeeper.272
In considering PADEP’s arguments, the Chester court looked at the purpose of the procedural requirements of the EPA regulations and determined that their principal aim was to provide fund recipients with notice of investigation.273 The court stated that a private lawsuit would afford a similar opportunity for notice to a fund recipient.274 The court also clarified that the strict procedural requirements of the EPA regulations are in place because of the potentially onerous remedy under the regulatory scheme—loss of funding.275 Because [*PG674]private plaintiffs could not effect such a remedy, the court reasoned that the need for such stringent requirements is not as significant in private rights of action.276 Thus, the court did not agree with PADEP’s contention that implying a private right of action was inconsistent with the underlying purposes of the legislative scheme of Section 602.277
In sum, the court found both Cort factors had been met: (1) there was an indication of a legislative intent to create a private right of action; and (2) such a creation would be consistent with the legislative scheme of Title VI.278 Therefore, “the statute under which the rule was promulgated properly permits the implication of a private right of action,” satisfying the second prong of the three-part test.279
Having found that the first two prongs of the test were met, the court turned to the third: “whether implying a private right of action will further the purpose of the enabling statute.”280 In this regard, the amicus United States argued that private litigation under Section 602 and the regulations would further the dual purposes of Title VI to fight discrimination by entities that receive federal funds and to offer citizens an effective defense against discrimination.281 By “deputizing private attorneys general” who could enforce Section 602 and the implementing regulations, a private right of action would further both purposes of Title VI.282 To the extent that a private right of action would increase enforcement of Title VI, the court agreed with the amicus and found that the third prong of the test was met.283
After finding that all three prongs of the Polaroid test were satisfied, and, thus, that it would be proper to imply a private right of action to enforce the EPA regulations,284 the court reflected on deci[*PG675]sions in other jurisdictions.285 The Chester court acknowledged that the specific question at issue had not been addressed by other appellate courts and then cited holdings from eight other federal circuits that “indicate support” for its reasoning.286
In conclusion, on December 30, 1997, the Third Circuit reversed and remanded the district court decision, holding that private plaintiffs may maintain an action under the discriminatory effect regulations promulgated by federal agencies pursuant to Title VI, Section 602.287
Three months after the Third Circuit decision, PADEP filed a petition for a writ of certiorari, and on June 8, 1998, the Supreme Court granted certiorari to determine whether a private right of ac[*PG676]tion exists under Section 602 of Title VI.288 The case promised to be the seminal decision that settled the question of whether individuals could enforce EPA’s potentially powerful disparate effect regulations. However, a procedural development at the state level ultimately led to a surprising result.
On December 6, 1996, PADEP denied SRS’s request for a “plan approval permit” extension.289 SRS appealed the denial of this extension, and pursued three separate appeals, a process that was ongoing almost a year and a half later.290 During the “plan approval permit” appeals process, on March 6, 1998, PADEP advised SRS that it was delinquent in making its bond payments for 1996 and 1997 (as required by SRS’s “waste permit” and state law) and requested that SRS make immediate deposits.291 On April 27, 1998, SRS notified PADEP that it wished to withdraw the “plan approval permit” and have all bonds and deposits returned.292 Three days later, PADEP officially revoked SRS’s “plan approval permit,” one month after the agency had filed its petition for a writ of certiorari.293
Three months after PADEP revoked SRS’s “plan approval permit,” CRCQL filed a motion to dismiss PADEP’s writ petition as moot based on the revocation of SRS’s permit and the fact that SRS no longer planned to operate in Chester.294 Essentially, CRCQL asserted that the permit revocation eliminated the actual controversy between the parties.295 CRCQL additionally argued that it no longer met the [*PG677]proper requirements for standing as the injury was no longer actual or imminent.296 Lastly, CRCQL asserted that the controversy surrounding the permit was not within the “exception for cases that are ‘capable of repetition yet evading review.’” CRCQL commented by way of a footnote at the close of its brief that, because the petition became moot through PADEP’s own actions, it would be inappropriate for the Court to vacate the Third Circuit decision.297 CRCQL offered no legal support for this contention.
The Commonwealth of Pennsylvania filed a brief in opposition that advanced three principal arguments.298 First, PADEP contended that CRCQL’s claims were not truly moot, despite the revocation of the permit, because the complaint itself was broader than the single [*PG678]claim levied against the SRS permit.299 Second, PADEP asserted that CRCQL belatedly advanced an argument of mootness “on the eve of filing . . . briefs” after months of representing that a live controversy existed, solely in an attempt to evade review of the Supreme Court.300 Third, PADEP argued in the alternative, that if the Court should find [*PG679]that the issue has been rendered moot, then justice requires that the Court vacate the judgment below and remand the case with direction to the district court to dismiss.301
In addition to its substantive legal arguments, PADEP emphasized that “events beyond the control of [PADEP] intervened to render moot those issues directly related to the SRS permit and plan approval.”302 PADEP requested SRS’s bond payment in compliance with its duties to enforce environmental laws, and stated SRS’s decision to withdraw its permit was made unilaterally.303 Quoting United States v. Munsingwear, Inc.,304 PADEP asserted that review of the Third Circuit’s decision was “prevented through happenstance,” and the court of appeal’s decision must be vacated.305
The Supreme Court ultimately embraced PADEP’s argument of mootness and cited Munsingwear in its August 17, 1998, one sentence summary order vacating the Third Circuit decision and remanding for dismissal.306 As a result, no federal court decision remains on the books allowing a private right of action for allegations of disparate effect against federally funded permitting agencies under Title VI. Additionally, judicial decisions currently offer little guidance as to the methodology and standards that might apply in disparate impact claims for discriminatory facility siting. The remainder of this paper [*PG680]focuses on what precedent exists regarding Title VI’s disparate impact litigation procedures and standards, and considers what outstanding questions will have to be addressed in the event that courts recognize this cause of action.
Observers of developments in environmental justice predict that “[t]he litigation will continue because of all the ambiguity in the guidance and the environmental justice regulations. The questions that were raised in the Chester case are still out there . . . . [T]hose court proceedings will not disappear.”307 Given the many substantive and procedural problems with EPA’s Title VI regulations, future private litigation for discriminatory permitting claims is inevitable.308 Not only will courts have to determine whether they will recognize such claims, but, if they do, courts and litigants alike will have many subse[*PG681]quent considerations. Standing,309 causation,310 and available remedies311 are among these unresolved questions.
The question of who has standing to sue under Title VI is actually an issue of discerning the “breadth of the statute’s prohibition on discrimination.”312 How courts determine this parameter, however, is not settled.313 Courts have applied four different standards in deciding whether a plaintiff may bring a private action under Title VI: (1) whether the plaintiff is the “intended beneficiary” of the federal funds in question;314 (2) whether the discrimination inflicted on the plaintiff will harm the intended beneficiaries of the statute;315 (3) “whether the plaintiff can show actual harm attributed to an allegedly illegal act committed by the administrators of a federally-funded program which could be remedied by a federal court”;316 and (4) whether the plaintiff’s interests fall within the zone of interests that Title VI is designed to protect, i.e., a person being discriminated in the administration of a federally funded program.317 Additionally, to have standing to request injunctive relief (but not monetary damages), community organizations representing impacted residents must show that they meet three requirements: (1) the members would have standing to bring suit individually; (2) the interests that the group acts to protect are germane to the purpose of the group; and (3) the claim asserted or [*PG682]the relief requested necessitates the involvement of individual group members in the suit.318
One commentator has asserted that application of the “intended beneficiary doctrine” (IBD), which is central to the first and second standing theories used by courts, is inconsistent with the logic of the Civil Rights Restoration Act of 1987 (1987 Act)319 and, therefore, the pre-1987 case law that employed the doctrine should no longer be followed.320 The 1987 Act replaced the narrow IBD that the Supreme Court had applied to Title IX in Grove City College v. Bell,321 a 1984 decision in which the court held that “federal funds received by a subunit of an educational institution did not subject the entire institution to the non-discriminatory demands of the statute.”322 Grove City had applied to Title VI cases as well as Title IX cases because courts looked to these statutes’ precedents interchangeably when interpreting civil rights jurisprudence.323
The 1987 Act legislatively overruled Grove City by broadly defining “program or activity” and expanding the “applicability of Title VI’s non-discrimination duty to include subunits of federally funded institutions that do not themselves receive federal aid.”324 By expanding Title VI’s reach to all sectors of a funded institution, Congress brought participants in those subunits, who were by definition not intended beneficiaries of the federal aid, under the protection of the Act.325 Thus, the 1987 Act arguably made application of the IBD under Title VI inappropriate.326
In 1998, the Supreme Court clarified the confusion surrounding the IBD with its decision in National Credit Union Administration v. First National Bank & Trust Co., in which the plaintiff sought to challenge a [*PG683]National Credit Union Administration decision under the Administrative Procedure Act (APA).327 The Supreme Court held in National Credit Union that standing does not require an indication of congressional intent to benefit the plaintiff.328 Rather, the proper test is “whether the interest sought to be protected by the complainant is arguably within the zone of interest to be protected . . . by the statute. Hence, . . . we do not ask whether, in enacting the statutory provision at issue, Congress specifically intended to benefit the plaintiff.”329 Instead, to determine standing, a court must first “discern the interests arguably to be protected by the statutory provision at issue; . . . [and] then inquire whether the plaintiff’s interests affected by the agency action are among them.”330
Since National Credit Union was decided, there has been only one Title VI district court case that specifically applied the National Credit Union holding to standing.331 In Bryant v. New Jersey Department of Transportation,332 the district court applied the National Credit Union test to determine whether residents of a minority community alleging harm from a construction project that would result in condemnation of their homes had standing to sue for disparate impact under Title VI.333 The Bryant court found that, “[t]he interests arguably to be protected by Title VI, then, are those of persons against whom federally funded programs discriminate.”334 If other courts follow this reasoning, standing would likely not be an obstacle because plaintiffs would necessarily allege a discriminatory impact in facility siting cases brought under EPA’s Title VI regulations.
Even if courts persist in adhering to precedent from the 1980s and apply the IBD to Title VI cases, many facility siting suits brought under Title VI will likely not be adversely affected.335 In facility siting claims, the defendant federal aid recipient is the local permitting authority itself whose permitting programs are arguably intended to [*PG684]benefit all residents in the jurisdiction.336 In such situations, if courts apply the IBD, there is a possibility that it will not be a bar.337 This argument, however, does not always achieve the predicted result as courts do not always find community plaintiffs to be the intended beneficiaries of the local federally funded program.338 In a permitting context, where the challenged permitting authority arguably benefits the entire population of a municipality, or even a state, courts may find that the nexus between the challenged permitting program and the plaintiffs is too attenuated to provide a basis for standing under the IBD.339
While the case law is not yet settled on the issue, if courts recognize a private cause of action under EPA’s Title VI regulations, it seems likely that standing will not present a significant barrier to a community plaintiff in light of the National Credit Union decision. The recent test set forth by the Court in that case appears to allow standing under Title VI for those individuals against whom a federally funded program has allegedly discriminated.340 This broad notion of standing potentially overrules the intended beneficiary doctrine of the 1980s341 and is poised to replace the variety of doctrines previously applied in Title VI litigation.
While the standing requirement for a private, disparate impact suit under Title VI presents its own confusions, the contours of burdens of proof and causation for this cause of action are perhaps even more problematic. Title VI does not prohibit the government from funding all programs that have a disparate racial impact on a community, only those projects where the disparate impacts are unjustified.342 One commentator has identified two frequently cited Title VI cases, the 1981 Third Circuit decision of NAACP v. Medical Center, Inc.343 and the 1984 Southern District of Ohio decision of Coalition of Concerned Citizens Against I-670 v. Damian,344 as clearly outlining the burdens that parties must meet in disparate impact litigation.345 However, the same commentator observes that the Civil Rights Act of 1991346 (1991 Act), which addressed Title VII, sets higher burdens on both plaintiff and defendant.347 Congress and the courts have used [*PG686]Title VII as a model for other civil rights legislation, so the 1991 Act could affect the way courts interpret Title VI protections.348 The procedure for finding disparate impact in facility siting challenges is untested and it is currently unclear whether the pre-act case law or the 1991 Act controls litigation under Title VI. Because many courts use Title VII jurisprudence to interpret Title VI, however, courts will likely follow the standards of the 1991 Act.349
Specifically addressing the plaintiff’s burden of proof, if the 1991 Act is not adopted, Medical Center, Inc. and Concerned Citizens indicate that the plaintiff must first present a prima facie case showing a “definite and measurable” disparate impact on the community in question.350 To establish the prima facie case for discriminatory effect, plaintiffs only need to show statistical disparities that are sufficiently substantial to raise an inference of causation.351 In contrast, under the 1991 Act, the plaintiff must demonstrate that a particular practice of the defendant causes a disparate impact based on race,352 unless the court determines that each of the defendant’s allegedly discriminatory acts cannot be separated from the other.353 Because a plaintiff usually must isolate particular practices of the defendant, the standard of the 1991 Act for the plaintiff’s prima facie case is actually more rigorous than that required by Medical Center, Inc. and Concerned Citizens.
Under Medical Center, Inc. and Concerned Citizens, after the plaintiff has established a prima facie case the defendant has the burden of producing evidence that shows “a legitimate, nondiscriminatory rea[*PG687]son for its action,”354 i.e., that the discriminatory decision was a business necessity.355 If the defendant does not meet this burden of production, the court, in its discretion, may assume that the defendant did not have a permissible reason for creating the disparate impact.356 However, if the defendant presents evidence that the discriminatory practice was caused by a business necessity, then the burden shifts to the plaintiff to show that the defendant’s justification is actually a pretext for discrimination,357 or that the defendant could use other selection procedures that would have a less discriminatory impact, but would still serve the defendant’s legitimate interests.358
In contrast, under the 1991 Act, once the plaintiff establishes a prima facie case of disparate impact, the ultimate burden of persuasion, not production, shifts to the defendant.359 To meet this burden, the defendant must “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”360 Even if the defendant successfully proves business necessity, the plaintiff is afforded an opportunity to present evidence that “other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in ‘efficient [*PG688]and trustworthy workmanship.’”361 Although it is more difficult for the plaintiff to establish a prima facie case under the 1991 Act than under Medical Center, Inc. and Concerned Citizens,362 this shifting of the burden of persuasion from the plaintiff to the defendant makes litigation under the 1991 Act less onerous for plaintiffs.363
Although no legislation or Supreme Court decision is yet on point, the limited body of recent Title VI case law indicates that courts are adopting the distribution of proofs set forth in the 1991 Act.364 It seems likely that courts will continue to follow this practice365 because it is well established that “[i]n deciding Title VI disparate impact claims [courts] borrow from standards formulated in Title VII disparate impact cases.”366
Under both Title VI case law and the 1991 Act, the plaintiff must show a disparate impact based on race to establish a prima facie case.367 There is, however, no controlling authority as to what constitutes either “disparity” or “impact” in a Title VI siting case. Therefore, plaintiffs may seek to rely on other Title VI cases for indicators regarding how courts may proceed on these elements of the prima facie case.
[*PG689] One of the first issues that plaintiffs must face when building a prima facie case is what will be measured and compared in the disparity analysis: “disparate as compared to what?”368 The small universe of Title VI litigation appears to indicate that, when courts determine disparity, it is appropriate to measure the racial proportionality of the allegedly affected population against the population of the defendant entity’s decisionmaking jurisdiction.369 Although this formulation appears simple, it may present analytical and pragmatic problems to litigants and courts alike.
First, courts and litigants will need to establish what the phrase “on the ground of race”370 means in Title VI litigation as it relates to facility siting.371 Taken to the extreme, this language could allow courts to find a “disparate impact based on race” where a facility is cited in a predominantly white enclave within a larger ethnic-minority community. To avoid this anomaly, courts could use the EPA’s terminology “minority population,” which includes ethnic categories defined by the U.S. Bureau of the Census and the UC.372 “‘Blacks, Hispanics, Asian/Pacific Islanders, American Indians,’ Alaskan Natives and other non-caucasian persons” are covered within that definition.373 This categorization of “minority,” however, may present difficulties. For example, what is the level at which “a given group of minorities would be sufficiently large to form a minority population or minority community?”374 How should courts approach a complaint [*PG690]from a community that is predominantly comprised of “ethnic minorities,” by definition, but that is located within a state that consists of an ethnic blend such that no ethnic group comprises more than fifty percent of the population?375
Second, in addition to racial composition, courts and litigants must consider geography in identifying the “affected population.”376 Here, the time, expense, and effort in gathering statistical data often force Title VI plaintiffs into relying on existing boundary lines whose demographics are already known.377 Plaintiffs frequently call the census tract, county, or zip code sector in which the facility is to be built the affected area.378 The size and geographical structure of these pre-ordained zones, however, may bear little or no relationship to the area actually affected by the challenged facility.379 In some cases, if the census tract relied upon is larger than the affected area, then non-impacted residents will be improperly folded into the statistical data.380 Similarly, using a census tract will not allow for measuring degree of impact since the impact upon those closest to a facility within a given tract will be equated to those living at the edge of the tract.381 Further, because pre-ordained boundaries may not correlate to the actual area affected, those who live near the facility, but across the selected boundary, will not be counted.382 Lastly, such boundaries do not account for contingencies such as being down-wind or down-stream from the facility.
Additionally, courts may find that merely comparing the affected population with the population of the agency’s jurisdiction is too simplistic and may be uncomfortable with relying on a formula not devised to address environmental impacts. Courts may instead elect to build their nascent formulation of disparity in siting cases on the expertise of EPA, deferring to the agency’s experience with the issues.383 [*PG691]In EPA’s Shintech investigation, the agency relied on census data to determine the racial makeup of communities within one-, two-, and four-mile radii of the proposed plant location and compared these to the racial composition of the state and the other affected geographic regions.384 EPA conducted similar racial composition demographic analyses on communities around other facilities in the state that emitted toxic pollutants to determine the “comparative universes.”385 “For each geographic and facility universe, the demographic analysis calculated the percentage of minority persons within the test radii, and compare[d] the results with the percentage of minority persons in the state as a whole.”386 Although such a radial study may be optimal,387 if courts required plaintiffs to conduct similarly in-depth investigations and analyses to establish a prima facie case of disparity, private action under Title VI would be prohibitively expensive for community groups.388
[*PG692] One commentator has suggested that plaintiff organizations can best address “disparity” in the prima facie case by using pre-ordained boundaries to identify the relevant population and necessary racial statistics, but then augment those statistical comparisons with any relevant information that helps to create a context for the court.389 For example, a complaint should explain how the impacts of facilities outside of the identified boundary might stretch across the identified boundary line, i.e., a landfill site only miles across the county line and on top of a common water aquifer.390 Additionally, the complaint might highlight any minority concentrations within a particular area of the pre-ordained zone.391 Plaintiffs also should indicate the presence of additional facilities within close proximity to the affected area’s boundary line, and the existence of multiple facilities within the zone itself.392 The court, therefore, is able to see not only statistical racial comparisons between the community affected by the facility in question and the jurisdiction at large, but also any inequity of burdens carried by the plaintiff community as compared to the greater jurisdiction.393
This “kitchen sink” method of alleging disparity is helpful to plaintiffs for two reasons. First, it is efficient because it allows plaintiffs to use existing demographic data, yet it still provides a complete context for the court to consider.394 Second, because Title VI case law offers only general outlines for determining disparity, and courts have no precedent to follow in facility siting challenges, a plaintiff can sug[*PG693]gest to the court what type of evidence it should consider by providing a targeted selection of facts.395
In addressing “disparity,” not only do courts have to determine what to compare, they also must decide at what level statistical outcomes become significant such that a finding of disparity is permissible—how much must the identified difference be? A survey of recent Title VI circuit court decisions does not reveal a suggested statistical differential upon which courts can rely in facility siting cases.396 The body of Title VII case law, however, is more complete and may be instructive.397
Under Title VII, the Supreme Court has held that statistical disparity in allegations of employment discrimination must be “sufficiently substantial” to raise an inference that the alleged discriminatory act caused the detrimental effect because of the affected group’s race.398 The Court did not rely on a particular mathematical formula to indicate when a disparity is sufficiently substantial, and held that case-by-case consideration of all facts and circumstances is appropriate.399 The Court additionally in