* Attorney, U.S. Environmental Protection Agency, Office of Inspector General; J.D. 2003, The George Washington University Law School; B.A. 1999, University of California at Davis. The author would like to thank Shi-Ling Hsu for his encouragement and guidance on this project. He would also like to thank Gregory E. Maggs, Jeffrey Rosen, and Jessica Stockton for their advice and suggestions. The views and analysis expressed in this article are the author's own and do not reflect the official policy or legal position of the U.S. Environmental Protection Agency or the United States Government. Any remaining errors are the sole responsibility of the author.
1 See Alexander v. Sandoval, 532 U.S. 275 (2001).
2 See The Supreme Court, 2000 Term--Leading Cases, 115 Harv. L. Rev. 306, 498 (2001).
3 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 252 (codified as amended at 42 U.S.C. � 2000d (2000)).
4 Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Thomas joined Justice Scalia’s opinion. Sandoval, 532 U.S. at 277.
5 Id. at 293.
6 “Textualism is a theory of statutory interpretation holding that the meaning of a statute is controlled by the statute’s text, rather than by policy arguments, legislative history, or most other extrinsic sources.” Gregory E. Maggs, Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia, 28 Conn. L. Rev. 393, 393 n.1 (1996); see also Sandoval, 532 U.S. at 288 (“We therefore begin (and find that we can end) our search for Congress’s intent with the text and structure of Title VI.”).
7 Sandoval, 532 U.S. at 282.
8 The evolution of the label used to represent the spirit of the movement is indicative of the difficulty in attributing the movement to a certain person, place, or event. See Christopher H. Foreman Jr., The Promise and Peril of Environmental Justice 9–13 (1998) (tracing the rhetorical shift in the language used to describe the modern incarnation of the movement from “environmental equity” and “environmental racism” to “environmental justice”).
9 See Tseming Yang, Melding Civil Rights and Environmentalism: Finding Environmental Justice’s Place in Environmental Regulation, 26 Harv. Envtl. L. Rev. 1, 4–5 (2002) (chronicling the tensions between the civil rights and environmental movements and the failure to fully integrate the two movements).
10 While many scholars have tied the origins of the environmental justice movement to the civil rights movement, which began in the 1950s along with the environmental movement, those views are too restrictive. See Tseming Yang, The Form and Substance of Environmental Justice: The Challenge of Title VI of the Civil Rights Act of 1964 for Environmental Regulation, 29 B.C. Envtl. Aff. L. Rev. 143, 143–145 (2002) (calling the environmental justice movement “the confluence of the two great social movements of the twentieth century”); see also Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement 20 (2001) (noting that some commentators trace the roots of the struggle in North America to over 500 years ago when the first Europeans arrived on the continent and began displacing the Native Americans); Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243, 1243 (1968); Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 U. Kan. L. Rev. 713, 733–34 (1986).
11 See Yang, supra note 9, at 6–7 (noting the disconnect between the two movements); see also Charles Jordan & Donald Snow, Diversification, Minorities, and the Mainstream Environmental Movement, in Voices from the Environmental Movement: Perspectives for a New Era 71, 75–78 (Donald Snow ed., 1992) (noting that minorities could not become members of the Sierra Club’s California chapters until the 1950s).
12 See Cole & Foster, supra note 10, at 19–20.
13 Unequal Protection: Environmental Justice and Communities of Color 3–4 (Robert D. Bullard ed., 1994) (stating that King’s mission to improve working conditions for striking African American garbage workers before he was shot in 1968 was really one of environmental justice) [hereinafter Unequal Protection].
14 Id. at 3. The drowning set off a campus riot at Southern University, a predominantly African American college in Houston, Texas. Id. Students were protesting the siting of the dump in the middle of the nearby African American neighborhood. Id.
15 See Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673, 675–76 (S.D. Tex. 1979), aff’d mem., 782 F.2d 1038 (5th Cir. 1986). Plaintiffs alleged that locating a garbage dump in their mostly African American community violated � 1983 of the Civil Rights Act of 1871. Id. The court ultimately denied the plaintiff’s claim as it found there was no intentional discrimination shown. Id. at 681. Previously, however, a similar attempt to stop a waste facility from being located in the area was successful when the area was comprised of mostly white residents. Unequal Protection, supra note 13, at 4.
16 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, 634–36 (2000); see also Dale Russakoff, As in the 60s, Protestors Rally; but This Time the Foe Is PCB, Wash. Post, Oct. 11, 1982, at A1.
17 Michael Fisher, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 Envtl. L. 285, 289 (1995) (noting that Chavis has been credited with coining the phrase “environmental racism”).
18 See NAACP v. Gorsuch, No. 82-768-CIV-5 (E.D.N.C. Aug. 10, 1982). The protests and accompanying lawsuit brought by the NAACP ultimately proved unsuccessful because the court noted that there was not “one shred of evidence” that race was a motivating factor in the siting of the landfill. Richard J. Lazarus, Pursuing “Environmental Justice:” The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 832 (1993) (citing Gorsuch, No. 82-768-CIV-5, at 9–10 n.8).
19 See Executive Office for U.S. Attorneys, Vol. No. 48, United States Attorneys Bulletin 1 (2000), available at http://www.usdoj.gov/usao/eousa/foia_reading_ room/usab4801.pdf; U.S. Gen. Accounting Office, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities (1983). The study was requested by Walter Fauntroy, the District of Columbia’s delegate to the U.S. House of Representatives, who was arrested for his participation in the Warren County Protests. See Fisher, supra note 17, at 296–97.
20 See Comm’n for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States: A National Report on the Racial and Socioeconomic Characteristics of Communities with Hazardous Waste Sites (1987); Executive Office for U.S. Attorneys, supra note 19, at 1.
21 Comm’n for Racial Justice, supra note 20, at xiii–xiv.
22 Latham Worsham, supra note 16, at 635.
23 See 1 Environmental Equity Workgroup, U.S. Envtl. Prot. Agency, Environmental Equity: Reducing Risk for All Communities 6–15 (1992), available at http://www.epa.gov/compliance/resources/publications/ej/reducing_risk_com_vol1.pdf; U.S. Envtl. Prot. Agency, About Environmental Justice, at http://www.epa.gov/oswer/ej/aboutej.htm (last visited Nov. 1, 2003). But see Douglas A. Anderton et al., Hazardous Waste Facilities: “Environmental Equity” Issues in Metropolitan Areas, 18 Evaluation Rev. 123, 129–33 (1994) (finding no correlation between hazardous waste siting and race); Daniel Kevin, “Environmental Racism” and Locally Undesirable Land Uses: A Critique of Environmental Justice Theories and Remedies, 8 Vill. Envtl. L.J. 121, 121–22 (1997) (questioning environmental justice advocates and their claims of a relationship between race and the siting of environmentally undesirable land uses).
24 See Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, Nat’l L.J., Sept. 21, 1992, at S2 (noting that penalties at sites with the greatest concentration of whites were 500% higher than at sites with the greatest concentration of minorities).
25 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994).
26 See Yang, supra note 9, at 7.
27 Alexander v. Sandoval, 532 U.S. 275, 278–79 (2001).
28 See id. at 278–79.
29 See 42 U.S.C. �� 2000d–2000d-1(2000); Sandoval, 532 U.S. at 278–79.
30 Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 598–99 (1983) (stating Title VI was enacted under Congress’s power to spend for the general welfare of the United States).
31 42 U.S.C. � 2000d.
32 Id. � 2000d-1.
33 Id.
34 Id.; see also Sandoval, 532 U.S. at 288–89.
35 28 C.F.R. � 42.104(b)(2) (2003). For a similar Department of Transportation regulation see 49 C.F.R. � 21.5(b)(2) (2003).
36 Sandoval, 532 U.S. at 278–79.
37 Id. at 279.
38 See id.; see also Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 584 (1983) (providing for injunctive and declaratory relief for violations of Title VI regulations by state officials); Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979) (allowing private right of action under Title IX); Lau v. Nichols, 414 U.S. 563, 566–69 (1974) (allowing private right of action to enforce rights guaranteed by Title VI).
39 Sandoval, 532 U.S. at 286–87. The dissent points out that “the majority offers little affirmative support for its conclusion.” Id. at 315 (Stevens, J., dissenting). In support of his decision, Justice Scalia cited a puzzling previous concurrence he wrote, in which no member of the Court joined. Id. at 287 (citing Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in the judgment)). Justice Scalia had stated, “Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.” Id. (citing Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in the judgment)).
40 Id. at 286. Justice Scalia further stated, “[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.” Id. at 291.
41 Id. at 286–87 (“Having sworn off the habit of venturing beyond Congress’s intent, we will not accept respondents’ invitation to have one last drink.”).
42 Id. at 288.
43 See id.
44 See id. at 288–89 (indicating that if Congress had intended a private right of action it would have specified so in detail as it did in � 601).
45 Sandoval, 532 U.S. at 293 (Stevens, J., dissenting). Justice Stevens was joined by Justices Souter, Ginsburg, and Breyer.
46 Id. at 294 (Stevens, J., dissenting) (“[T]his Court has repeatedly and consistently affirmed the right of private individuals to bring civil suits to enforce rights guaranteed under Title VI.”); see also id. at 295 n.1 (Stevens, J., dissenting) (“Just about every Court of Appeals has either explicitly or implicitly held that a private right of action exists to enforce all of the regulations issued pursuant to Title VI, including the disparate-impact regulations.”).
47 Id. at 300 (Stevens, J., dissenting). Justice Stevens based this proposition on the Court’s prior holdings. See id. at 299–300 (Stevens, J., dissenting) (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 635–45 (1983)).
48 See id. at 304 (Stevens, J., dissenting) (“The majority’s statutory analysis does violence to both the text and the structure of Title VI.”).
49 See id. at 294–96 (Stevens, J., dissenting); The Supreme Court, 2000 Term---Leading Cases, supra note 2, at 498.
50 See Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (allowing separate but equal accommodations for whites and blacks); Scott v. Sanford, 60 U.S. (19 How.) 393, 415 (1856) (“[Members of] the African race . . . were not citizens . . . of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States.”) (citing Crandall v. State, 10 Conn. 339 (1839)).
51 One environmental justice scholar, Luke Cole, placed � 602 third on his four-tier hierarchy for bringing environmental justice claims. See Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 Fordham Urb. L.J. 523, 526 (1994).
52 See Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
53 See 42 U.S.C. � 2000d (2000) (commonly referred to as � 601 and prohibiting intentional discrimination); 42 U.S.C. � 2000d-1 (2000) (known as � 602 allowing agencies to promulgate regulations that effectuate the provisions of � 601).
54 See Bradford M. Mank, Title VI, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks 23, 23–24 (Michael B. Gerrard ed., 1999).
55 See Sandoval, 532 U.S. at 280 (“[I]t is . . . beyond dispute—and no party disagrees—that � 601 prohibits only intentional discrimination.”); Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 608 n.1 (1983) (Powell, J., concurring) (“Seven members of the Court agree that a violation of the statute itself requires proof of discriminatory intent.”).
56 See Cole, supra note 51, at 538–39 (discussing the difficulty of proving intentional discrimination in environmental justice cases brought under the Equal Protection Clause of the Constitution); see also R.I.S.E. Inc. v. Kay, 768 F. Supp. 1144, 1150 (E.D. Va. 1991) (finding no dicriminatory intent in the siting of garbage dump in minority community by county board of supervisors); El Pueblo para el Aire y Agua Limpio v. Chem. Waste Mgmt., No. CV-F-91-578-OWW (E.D. Cal. filed July 7, 1991) (determining no discriminatory intent in siting of toxic waste incinerator); Bordeaux Action Comm’n v. Metro. Nashville, No. 390-0214 (M.D. Tenn. filed Mar. 12, 1990) (failing to find discriminatory intent in operation of garbage dump in minority community).
57 See Cole, supra note 51, at 537–38; see, e.g., Hawkins v. Town of Shaw, 437 F.2d 1286, 1290, 1292 (5th Cir. 1971), aff’d en banc, 461 F.2d 1171 (5th Cir. 1972) (finding a denial of equal protection where ninety-seven percent of homes not served by sanitary sewers were in black neighborhoods); Johnson v. City of Arcadia, 450 F. Supp. 1363, 1370–76, 1379 (M.D. Fla. 1978) (finding discrimination against black neighborhoods with respect to provision of water facilities, street paving, as well as park and recreational facilities).
58 See Derrick Bell, Race, Racism and American Law 130–36 (2d ed. & Supp. 1984) (indicating that the small-town nature of these cases would distinguish them from most environmental justice claims); see also 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, 195 (2002).
59 See 42 U.S.C. � 2000d-1 (2000). For a list of agencies that have promulgated such regulations under � 602, see Paul K. Sonn, Note, Fighting Minority Underrepresentation in Publicly Funded Construction Projects After Croson: A Title VI Litigation Strategy, 101 Yale L.J. 1577, 1581 n.25 (1992).
60 See 40 C.F.R. � 7.35(b) (2002) (prohibiting use of discriminatory criteria in federal programs); id. � 7.35(c) (prohibiting the siting of a facility in an area where it will have a discriminatory effect).
61 See Mank, supra note 54, at 24.
62 EPA’s regulations, like those of all other federal agencies, are modeled after the Department of Justice’s regulations. See 28 C.F.R. � 42.107 (2002).
63 42 U.S.C. � 2000d (2000).
64 See id.
65 See Mank, supra note 54, at 23. Of particular import are the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the legislation that created the Superfund, and the Resource Conservation and Recovery Act (RCRA). See Lazarus, supra note 18, at 835 n.215. Under these acts most states receive federal funds to clean up hazardous waste. See 42 U.S.C. �� 6931, 6947–6949, 9604, 9611 (2000); Lazarus, supra note 18, at 835 n.215.
66 See Mank, supra note 54, at 23.
67 42 U.S.C. � 2000d-1 (2000).
68 See Alexander v. Choate, 469 U.S. 287, 292–94 (1985) (detailing the nature of discrimination prohibited by Title VI) (citing Guardians Ass’n v. Civil Ser. Comm’n, 463 U.S. 582, 584, 607–08 (1983)).
69 See Latham Worsham, supra note 16, at 646.
70 See 40 C.F.R. �� 7, 12 (2001); see also Yang, supra note 10, at 164.
71 See 49 Fed. Reg. 1661 (Jan. 12, 1984) (codified at 40 C.F.R. � 7.35(b) (2002)).
72 40 C.F.R. � 7.35(c).
73 See Latham Worsham, supra note 16, at 646 (noting that EPA viewed its primary goal as regulating pollution and feared that pursuing environmental justice claims would limit its ability to pursue this goal).
74 U.S. Envtl. Prot. Agency, Interim Guidance For Investigating Title VI Administrative Complaints Challenging Permits (1998). This guidance was issued in response to an Executive Order issued by President Clinton which instructed federal agencies to be more conscience about environmental justice. Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994).
75 See Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance), 65 Fed. Reg. 39,650, 39,667–70 (June 27, 2000).
76 In 2001, EPA Administrator Whitman recommitted the Agency to “a firm committment to the issue of environmental justice and its integration into all programs, policies, and activities, consistent with existing environmental laws . . . .” Christine Todd Whitman, U.S. Envtl. Prot. Agency, EPA’s Commitment to Environmental Justice 1 (2001), available at http://www.epa.gov/compliance/resources/policies/ej/admin_ej_ commit_letter_081401.pdf. EPA’s top enforcement official, John Peter Suarez, said the agency is looking at ways to incorporate environmental justice more into its case selection process and he is making clearing the backlog of environmental justice complaints a priority. Environmental Justice, Supplemental Projects Among Priorities at EPA Compliance Office, 11 Daily Envtl. Rep. (BNA) B-34–B-35 (Jan. 16, 2003).
77 See Yang, supra note 10, at 168–69.
78 See St. Francis Prayer Ctr. v. Mich. Dep’t of Envtl. Quality, EPA File No. 5R-98-R5, http://www.epa.gov/civilrights/docs/ssdec_ir.pdf (last visited Oct. 19, 2003); Letter from Anne E. Goode, Director, EPA, to Father Phil Schmitter and Sister Joanne Chiaverini, St. Francis Prayer Center 6 (Oct. 30, 1998) (on file with author) (finding no violation of Title VI).
79 See Cannon v. Univ. of Chi., 441 U.S. 677, 706 n.41 (1979).
80 Luke W. Cole, Civil Rights, Environmental Justice, and the EPA: A Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L. & Litig. 309, 321–22 (1994).
81 See 40 C.F.R. � 7.130 (2002).
82 Mank, supra note 54, at 28–29.
83 See 40 C.F.R. � 7.130.
84 Fisher, supra note 17, at 317 n.158 (citing Women’s Equity Action League v. Cavazos, 906 F.2d 742, 748 (D.C. Cir. 1990)).
85 See 40 C.F.R. � 7.130(b)(3) (outlining appeals process for recipients of federal funds upon an EPA determination of noncompliance with � 602).
86 Administrative Procedure Act (APA), 5 U.S.C. � 704 (2000).
87 See Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 191–92 (4th Cir. 1999).
88 See id. No court to date has ruled that the APA is a viable option. See id. (“[W]e think that Cannon’s direct remedy against funding recipients is not only ‘adequate,’ but, as the Supreme Court recognized, is preferable to a direct suit against the agency itself.”); Women’s Equity Action League, 906 F.2d at 750–51 (D.C. Cir. 1991) (holding APA is a default remedy when statutory remedy is not adequate); Scherer v. United States, 241 F. Supp. 2d 1270, 1288 (D. Kan. 2002) (indicating that APA suits are only available when there is “no other adequate remedy in court”).
89 See Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
90 Id. at 285–86 n.6.
91 Id. at 286.
92 Id. at 286 n.6. The Supreme Court in plurality opinions and dicta has indicated that disparate-impact regulations are authorized under � 602. See Alexander v. Choate, 469 U.S. 287, 293–94 (1985); Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 592–93 (1983) (White, J.). Several circuit courts have held that disparate-impact regulations are authorized by � 602. See, e.g., Powell v. Ridge, 189 F.3d 387, 399–400 (3d Cir. 1999); N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); Latinos Unidos v. Sec’y of Hous. & Dev., 799 F.2d 774, 785 n.20 (1st Cir. 1986); see also Thomas A. Lambert, The Case Against Private Disparate Impact Suits, 34 Ga. L. Rev. 1155, 1163 (2000). In his dissent, Justice Stevens admonishes Justice Scalia for his failure to provide adequate weight to the Court’s prior, fractured Title VI opinions. See Sandoval, 532 U.S. at 295 (Stevens, J., dissenting). Justice Stevens states: “the failure of our cases to state this conclusion explicitly does not absolve the Court of the responsibility to canvass our prior opinions for guidance.” Id. (Stevens, J., dissenting)
93 Sandoval, 532 U.S. at 286 n.6 (quoting Justice Stevens’s dissenting opinion at page 307).
94 See id. at 279–82 (Scalia, J., concurring in the judgment) (“[W]e have abandoned the expansive rights-creating approach exemplified by Cannon . . . and perhaps ought to abandon the notion of implied causes of action entirely.” (citing Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 77 (1992)); id. at 286–87 (citing Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in the judgment)); id. at 292–93 (citing Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989) (quoting Johnson v. Transp. Agency, Santa Clara County, 480 U.S. 616, 671–72 (1987) (Scalia, J., dissenting))).
95 See Sandoval, 532 U.S. at 281–82; Respondents’ Brief at 9–10, Sandoval (No. 99-1908).
96 For a thorough analysis of this aspect of the case, see John Arthur Laufer, Note, Alexander v. Sandoval and Its Implications for Disparate Impact Regimes, 102 Colum. L. Rev. 1613 (2002).
97 See U.S. Const. amend. XIV, � 1.
98 See id.
99 See Terry Props., Inc. v. Standard Oil Co., 799 F.2d 1523, 1536 (11th Cir. 1986) (finding no discriminatory intent in the siting of an industrial plant in a largely African American community).
100 See supra Part III.A.
101 42 U.S.C. � 1983 (2000); Alexander v. Sandoval, 532 U.S. 275, 299–300 (2001) (Stevens, J., dissenting).
102 Sandoval, 532 U.S. at 300.
103 See Bradford C. Mank, Using Section 1983 to Enforce Title VI’s Section 602 Regulations, 49 U. Kan. L. Rev. 321 (2001); see also Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002) (indicating that disparate-impact claims may still be brought under � 1983); Langlois v. Abington Hous. Auth., 234 F. Supp. 2d 33, 52–55 (D. Mass. 2002) (allowing a disparate-impact suit pursuant to � 1983); White v. Engler, 188 F. Supp. 2d 730, 744–45 (E.D. Mich. 2001) (permitting suit under � 1983 in the context of dispersal of education funds); S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F. Supp. 2d 505, 517 (D.N.J. 2001), rev’d, 274 F.3d 771 (3d Cir. 2001), cert. denied, 536 U.S. 939 (2002) (holding Sandoval did not foreclose bringing a � 602 claim under � 1983).
104 S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 790–91 (3d Cir. 2001).
105 Id. at 790.
106 Id.
107 See id.
108 Id. at 790–91.
109 See Gonzaga Univ. v. Doe, 536 U.S. 273, 286–87 (2002).
110 Family Educational Rights and Privacy Act of 1974, Pub. L. No. 93-380, 88 Stat. 571 (codified at 20 U.S.C. � 1232g (2000)).
111 See Gonzaga Univ., 536 U.S. at 286–87.
112 Id. at 283.
113 Id. at 283–84.
114 See Susan J. Buck, Understanding Environmental Administration and Law 2–4 (1996) (tracing the origins of common law from England to its first use in America to remedy environmental harm).
115 See Martin v. Wadell, 41 U.S. (16 Pet.) 367, 416 (1842) (analyzing the public trust doctrine); Buck, supra note 114, at 3.
116 For a thorough analysis of environmental torts see Gerald W. Boston & M. Stuart Madden, Law of Environmental and Toxic Torts 21–139 (1994).
117 Steven Ferrey, Environmental Law: Examples and Explanations 16 (2d ed. 2001).
118 See Henry N. Butler & Jonathan R. Macey, Using Federalism to Improve Environmental Policy 8 (1996) (stating that the law of nuisance applies to “excessive noise, noxious odors, [and] smoke or dust settling on a landowner’s property”).
119 Restatement (Second) of Torts � 821D (1979).
120 Id. � 822.
121 Id. � 821B(1).
122 Id. � 821B(2)(a).
123 Id. � 821B(2)(b)–(c).
124 Id. � 821C(1); see also Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 1233 (D. Mass. 1986) (holding that a personal injury to one’s health rather than to property satisfies this requirement). For a detailed discussion of the special injury rule, see Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755 (2001).
125 Restatement (Second) of Torts � 821C.
126 Butler & Macey, supra note 118, at 8.
127 See Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673, 677 (S.D. Tex. 1979) (holding that although plaintiffs demonstrated a substantial threat of irreparable injury, they were not likely to show discriminatory intent under � 1983), aff’d mem., 782 F.2d 1038 (5th Cir. 1986).
128 See Latham Worsham, supra note 16, at 640.
129 See Butler & Macey, supra note 118, at 8.
130 Boomer v. Atl. Cement Co., 257 N.E.2d 870, 873–75 (N.Y. 1970) (reasoning that the costs of shutting down the defendant’s plant would be disproportionately large compared with the harm it was causing); see also Restatement (Second) of Torts � 951 cmt. a (1979) (allowing damages to be awarded in place of an injunction if to do otherwise would impose undue hardship on the defendant).
131 See State ex rel. Vandervort v. Grant, 286 P. 63 (Wash. 1930) (holding that respondent could not maintain public nuisance action because the harm he suffered from the obstruction of a public street and sidewalk could not be distinguished from its effect on the public generally).
132 See supra Part III.A; see also James E. Krier, The Pollution Problem and Legal Institutions: A Conceptual Overview, 18 UCLA L. Rev. 429, 453–54 (1971).
133 See generally Daniel A. Farber, Toxic Causation, 71 Minn. L. Rev. 1219, 1226–33 (1987).
134 See Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 21–22 (1981) (holding Clean Water Act preempted common law claim); Papas v. Upjohn Co., 926 F.2d 1019, 1026 (11th Cir. 1991) (holding Federal Insecticide, Fungicide, and Rodenticide Act prohibited common law remedy); Buchanan v. Simplot Feeders Ltd., 952 P.2d 610, 614 (Wash. 1998) (prohibiting a nuisance claim because of state “Right-to-Farm” statute).
135 See Fisher, supra note 17, at 310.
136 Ferrey, supra note 117, at 21.
137 Restatement (Second) of Torts � 158 cmt. i (1979); see also Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1192 (6th Cir. 1988); Miller v. Cudahy Co., 592 F. Supp. 976, 1007 (D. Kan. 1984), aff’d in part, rev’d in part, remanded, 858 F.2d 1449 (10th Cir. 1988).
138 See Ferrey, supra note 117, at 21.
139 See Farber, supra note 133, at 1226–33.
140 See Kathy Seward Northern, Battery and Beyond: A Tort Law Response to Environmental Racism, 21 Wm. & Mary Envtl. L. & Pol’y Rev. 485, 545 (1997).
141 Restatement (Second) of Torts � 520 (1979). Some of the factors are: (a) presence of a high degree of risk of harm; (b) likelihood the harm will be great; (c) inability to terminate risk through the exercise of reasonable care; (d) whether the activity is common usage; (e) appropriateness of the activity in relation to the location; and (f) social utility of the activity. Id.; see also State Dep’t of Envtl. Prot. v. Ventron Corp., 468 A.2d 150, 159–60 (N.J. 1993) (finding disposal of waste to be an abnormally dangerous activity). But see Avemco Ins. Co. v. Rooto Corp., 967 F.2d 1105, 1109 (6th Cir. 1992) (applying these factors, but holding storage of waste not abnormally dangerous).
142 See Robert H. Cutting, One Man’s Ceiling Is Another Man’s Floor: Property Rights as the New Double-Edged Sword, 31 Envtl. L. 819, 828–29 (2001).
143 See Ferrey, supra note 117, at 15.
144 See 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, 8–9 (2000); see also Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994) (requiring EPA to consider environmental justice when making decisions); Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice into EPA Permitting Authority, 26 Ecology L.Q. 617 (1999) (outlining EPA authority to implement environmental justice); Memorandum from Gary S. Guzy, General Counsel, Office of General Counsel, EPA, to Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assistance; Robert Perciasepe, Assistant Administrator, Office of Air and Radiation; Timothy Fields, Jr., Assistant Administrator, Office of Solid Waste and Emergency Response; J. Charles Fox, Assistant Administrator, Office of Water (Dec. 1, 2000) (on file with author) (describing EPA statutory and regulatory authority to address environmental justice).
145 See Hill & Targ, supra note 144, at 7–10; see also Yang, supra note 9, at 14–15 (noting that because environmental standards are constructed to achieve the greatest good for the greatest number of people, they often fail to take into account the unique circumstances of minorities).
146 Federal Water Pollution Control Act, 33 U.S.C. �� 1251–1387 (2000); Clean Air Act, 42 U.S.C. �� 7401–7671q (2000); see also 42 U.S.C. � 7408(f)(1)(C) (requiring EPA to consider sensitive populations in the establishment of National Ambient Air Quality Standards).
147 One must also consider the availability of claims based on state environmental statutes. See Chuck D. Barlow, State Environmental Justice Programs and Related Authorities, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks 140 (Michael B. Gerrard ed., 1999).
148 See Cole, supra note 51, at 526 (noting an environmental justice litigation hierarchy); see also Lazarus, supra note 18, at 827–28.
149 Cole, supra note 51, at 526.
150 See id.
151 See National Environmental Policy Act of 1969, 42 U.S.C. �� 4321–4370d (2000).
152 Id. � 4332(c); see also Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 771–72 (1983).
153 For a more complete discussion of which statutes require compliance with NEPA, see U.S. Envtl. Prot. Agency, Final Guidance for Incorporating Environmental Justice Concerns into EPA’s NEPA Compliance Analysis 5–7 (1998), available at http://www. epa.gov/compliance/resources/policies/ej/ej_guidance_nepa_epa0498.pdf.
154 See 40 C.F.R. � 1501.4(b)–(c) (2002).
155 See Olga L. Moya, Federal Environmental Law: The User’s Guide 56 (1997); Gordon R. Alphonso et al., Fire, Wood, and Water: Trends in Forest Management Requirements, 18 Nat. Resources & Env’t 18, 19 (2003).
156 See Ferrey, supra note 117, at 68.
157 See Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227–28 (1980) (holding that NEPA is merely a procedural statute, and does not demand particular results).
158 The Council on Environmental Quality (CEQ) was set up to outline NEPA compliance guidelines. See 42 U.S.C. � 4321(2)(5) (2000); 40 C.F.R. �� 1500–1508 (outlining CEQ regulations); The Role of Collaborative Groups in Federal Land and Resources: A Legal Analysis, 23 J. Land Resources & Envtl. L. 67, 130 (2003). The CEQ was granted authority to issue binding orders through an executive order by President Carter in 1977. Exec. Order No. 11,991, 42 Fed. Reg. 26,967 (May 24, 1977).
159 Council on Envtl. Quality, Environmental Justice: Guidance Under the National Environmental Policy Act 15–16 (1997), available at http://ceq.eh.doe.gov/ nepa/regs/ej/justice.pdf [hereinafter CEQ Guidance].
160 Id. at 4 (citing Presidential Memorandum Accompanying Executive Order 12,898, 30 Weekly Comp. Pres. Doc. 279, 280 (Feb. 11, 1994)).
161 Id. at 8–9. These principles are: (1) consideration of the racial composition of the area affected by the proposed action, and whether there may be a disproportionate impact on minority populations; (2) consideration of relevant public health and industry data and the potential for exposure to environmental hazards; (3) recognition of “the interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects of the proposed agency action”; (4) development of “effective public participation strategies”; (5) assurance of “meaningful community representation in the process”; and (6) assurance of “tribal representation in the process in a manner that is consistent with the government-to-government relationship between the United States and tribal governments, the federal government’s trust responsibility to federally-recognized tribes, and any treaty rights.” Id.
162 See Karlen, 444 U.S. at 227.
163 See Fisher, supra note 17, at 308–09.
164 For an example of how a NEPA suit can draw together a broad section of the American population, see Public Citizen v. Department of Transportation, 316 F.3d 1002, 1008–09, 1032 (9th Cir. 2003), which sustained a challenge by a coalition of environmental, labor, and public interest groups to the Department of Transportation’s decision to open the U.S.-Mexico border to cross border commercial traffic without the performance of an EIS.
165 See Cole, supra note 51, at 541. For an example of a political resolution to a problem similar to that raised by the Sandoval decision, see Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660–61 (1989), which held that the plaintiff has the burden of production rather than the higher burden of persuasion in Title VII cases. In 1991, Congress reversed the Court’s interpretation by amending Title VII to place the higher burden back on the defendant. See 42 U.S.C. � 2000e-2(k)(1)(A)(i) (2000); see also Gregory E. Maggs, Translating Federalism: A Textualist Reaction, 66 Geo. Wash. L. Rev. 1198, 1203–04 (1998) (discussing the option of amending the Constitution when changes are really deemed necessary, and how this option is often overlooked by parties after they receive an adverse ruling from the Supreme Court).
166 See supra Part III.A–E.
167 See Dean B. Suagee, Turtle’s War Party: An Indian Allegory on Environmental Justice, 9 J. Envtl. L. & Litig. 461, 464–69 (1994) (providing an analysis of the environmental justice concerns of Native Americans).
168 See id. at 472, 496–97.
169 See id. at 496–97.
170 See United States v. Mazurie, 419 U.S. 544, 557 (1975).
171 See Felix S. Cohen, Handbook of Federal Indian Law 123 (1982); see also United States v. Wheeler, 435 U.S. 313, 323 (1978).
172 See, e.g., Dean B. Suagee, The Application of the National Environmental Policy Act to “Development” in Indian Country, 16 Am. Indian L. Rev. 377 (1991) (analyzing the role of NEPA on Native lands).
173 See Judith V. Royster, Native American Law, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks 157 (Michael B. Gerrard ed., 1999).
174 See Indian Tribes Fighting Proposal for Power Plant Suit: Project Would Ruin Lake’s Spiritual Power, San Jose Mercury News, July 18, 2002, at 19, available at 2002 WL 24309075.
175 Medicine Lake Highlands refers to the entire region, including the Telephone Flat and Four Mile Hill developments. The Highlands region sits in the Modoc National Forest in northern California, on the edge of the largest shield volcano in the United States. See Eric Bailey, Electrical v. Spiritual: Indian Tribes Hope to Block Construction of a Geothermal Plant They Fear Will Drain Healing Force of Medicine Lake, L.A. Times, July 17, 2002, at B1; Suzan Shown Harjo, Indian Country Today, Oneida, N.Y., Guest Column, Indian Country Today, Dec. 16, 2002, 2002 WL 104725126.
176 See Ken Hoover, Opposition to 2 Geothermal Proposals; Foes Say Siskiyou County Power Plants Would Harm Land, Defile Tribal Sites, S.F. Chron., Sept. 13, 1999, at A20.
177 Bureau of Land Mgmt., Environmental Impact Statement and Environmental Impact Report Prepared for the Proposed Telephone Flat Geothermal Development Project 3.6.2.4 (1999) (Resolution No. 96-08-25 of the Pit River Tribe), available at http:// www.ca.blm.gov/alturas/telephone/index.html.
178 See id. at tbl.ES.6.
179 See Proposed Geothermal Developments at Medicine Lake Highlands, available at http:// www.ca.blm.gov/news/2000/05/nr/decision_background.html (last visited Sept. 18, 2003); see also 64 Fed. Reg. 27,782, 27,783 (May 21, 1999) (noting EPA’s skepticism of the Bureau of Land Management’s Environmental Impact Statement).
180 Cal. Energy Gen. Corp. v. United States, No. 00-CV-619 (Fed. Cl. filed Oct. 17, 2000).
181 Id.; see also Dean E. Murphy, U.S. Approves Power Plant in Area Indians Hold Sacred, N.Y. Times, Nov. 28, 2002, at A32. This article quoted an Agriculture Department spokesman: “the Justice Department said we are going to lose boatloads of taxpayer money if we don’t find a way to give these guys a fairer hearing.” Murphy supra, at A32. It also stated that the Calpine suit had heavily influenced the decision. Id.
182 See Murphy, supra note 181, at A32; see also Bureau of Land Mgmt., Record of Decision: Telephone Flat Geothermal Development Project on Federal Leases CA 12370, CA 12371, CA 12372, CA 13803, CA 21933, and CA 2500 8 (2002).
183 Pit River Tribe v. Dep’t of Interior, No. 02-CV-1314 (E.D. Cal. filed June 17, 2002) (not yet briefed).
184 Murphy, supra note 181, at A32.
185 Id.
186 See id.
187 Bailey, supra note 175, at B1 (detailing the history of the land from settler incursions during the 1850s gold rush to current power exploration).
188 Murphy, supra note 181, at A32.
189 See Eric Bailey, Geothermal Plant Near Tribal Site Approved: Reversal of Clinton-era Agreement Angers Native Americans Who Call the California Lake Sacred, L.A. Times, Nov. 27, 2002, at A1; see also Bailey, supra note 175, at B1 (quoting Jerald Jackson, a tribal elder, as equating the situation to “a Catholic going to confession and someone opening the door”).
190 See International Indian Treaty Counsel Resolution No. 2002-10, adopted Sept. 21, 2002, at http://www.treatycouncil.org/new_page_571111121.htm (supporting Pit River Tribe’s opposition to geothermal plant development and urging federal agencies to halt the project); The National Congress of American Indians Resolution No. JUN-00-021, June 25–28, 2000, at http://www.ncai.org/data/docs/resolution/2000_midyear_session/mid-yr00021.htm.
191 See Scott Winokur & Christian Berthelsen, Calpine’s Quest for Power: American Indians Split over Bay Area Supplier’s Efforts to Tap What Some View as Their Own Source of Sacred, Spiritual Energy, S.F. Chron., Mar. 5, 2001, at A1.
192 See id.
193 Id. (discussing a supposed payoff of $25,000 to the Shasta Nation to assist them in their quest for federal tribal recognition, over $500,000 spent in lobbying, and several scholarship awards).
194 Id. One of these paid consultants, Rosemary Nelson, has been quoted as saying, “I wonder how relevant these historic and spiritual sites are to your life . . . when Indians have the highest unemployment, alcoholism and suicide rates? Preserving cultural sites is important, but it hasn’t solved the problems of Native Americans. We honor our ancestors by living successfully in the present.” Id. Other tribal members have been quoted as saying, “[t]hat healing power and all that is baloney; that went out in the 1900s.” Bailey, supra note 175, at B1 (statement of Pit River Tribe member Erin Forrest, Calpine supporter).
195 See Erik K. Yamamoto & Jen-L W. Lyman, Racializing Environmental Justice, 72 U. Colo. L. Rev. 311, 354 (2001) (discussing a similar situation faced by native Hawaiians).
196 See supra notes 184–190 and accompanying text; see also Hill & Targ, supra note 144, at 31 (explaining how the impact of a change in local ecology can have a significant effect on native populations).
197 See supra Part III.
198 See supra Part III.
199 See supra Part III.A.
200 See 42 U.S.C. � 2000d (2000).
201 See supra Part III.
202 See supra Part II.
203 Alexander v. Sandoval, 532 U.S. 275, 288 (2001).
204 See supra Part III.B.
205 See U.S. Envtl. Prot. Agency, Title VI Complaints Filed with EPA as of February 28, 2003 4 (2003), available at http://www.epa.gov/ocrpage1/docs/t6csfeb2003. pdf.
206 Id.
207 Id.; see also Pit River Tribe v. Dep’t of Interior, No. 02-CV-1314 (E.D. Cal. filed June 17, 2002) (not yet briefed).
208 See 28 C.F.R. �� 42.07, 50.3 (2003).
209 See supra Part III.B.
210 See supra Part III.B.
211 See supra Part III.C.
212 See supra Part III.C.
213 See supra Part III.C.
214 See supra Part III.D.
215 See supra notes 174–194 and accompanying text.
216 See supra Part III.D.
217 See Boomer v. Atl. Cement Co., 257 N.E.2d 870, 872–75 (N.Y. 1970) (holding that the costs of shutting down the defendant’s plant would be disproportionate to the harm it was causing).
218 See Carl Hulse, Energy Matters Return to Fore on Capitol Hill, N.Y. Times, Apr. 10, 2002, at C1.
219 See Boomer, 257 N.E.2d at 872–75.
220 Restatement (Second) of Torts � 821(B)(1) (1979).
221 Id. � 821B(2)(c).
222 Id. � 821C(1); see also Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 1233 (D. Mass. 1986) (holding that a personal injury to one’s health rather than to property satisfies this requirement). For a detailed discussion of the special injury rule, see Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755 (2001).
223 See Anderson, 628 F. Supp. at 1233; Restatement (Second) of Torts � 821C(1); Antolini, supra note 222; supra notes 174–194 and accompanying text.
224 See supra Part III.D.
225 See supra Part III.D.
226 See supra Part III.D.
227 See supra Part III.D.
228 Supra Part IV.
229 See supra Part IV.
230 See supra Part III.D.
231 See supra note 141.
232 See Sierra Club v. Marsh, 769 F.2d 868, 877–78 (1st Cir. 1985) (stating that not only should cumulative effects be considered, but also indirect effects that may come later but are reasonably foreseeable); 40 C.F.R. � 1508.27 (2002).
233 See supra Part III.E.
234 See supra note 161 and accompanying text.
235 See supra Part III.E.
236 See supra Part III.E.
237 See supra Part III.E.
238 See supra Part III.F.
239 See Greg Lucas, Tribes Wager Newfound Clout on Sacred Land: Bill Gives Power to Veto Project Proposed near Spiritual Ground, S.F. Chron., July 29, 2002, at A1 (documenting an effort by tribal leaders to gain a legislative veto to projects on native lands).
240 See supra Part II.
241 See In re Water Use Permit Applications, 9 P.3d 409, 449 (Haw. 2000).
242 Id. at 439–50; Yamamoto & Lyman, supra note 195, at 352–59.
243 See Mount Graham Coalition v. McGee, 52 Fed. Appx. 354, 355 (9th Cir. 2002).
244 See National Trust Legal Defense Fund, LDF Update, (October 2001), available at http://www.nationaltrust.org/legal_advocacy/docs/review10–01.pdf.
245 Mount Graham Coalition, 52 Fed. Appx. at 355.
246 Id.
247 See id.
248 See id. at 354–55.