* Articles Editor, Boston College Environmental Affairs Law Review, 2003–04. I would like to thank the tireless efforts of the past and present editorial staffs, and the encouragement of Prof. Zygmunt Plater, who showed me the rewards of untangling the law’s toughest questions. Many thanks also to Nicholas Targ of the EPA Office of Environmental Justice, acting in his personal capacity, without whom I would not have known that this tough question was in need of untangling.
I would also like to acknowledge the formative influence of my family, along with my past professors and current colleagues at the College of the Holy Cross. This Note would not have been possible without the critical skills and motivating passion they continue to impart.
Ad Majorem Dei Gloriam.
1 See, e.g., Eileen Guana, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 Ecology L.Q. 1, 2–4 (1995) (“[T]he phrase [‘environmental racism’] connected two complicated social problems previously unconnected in the minds of many: environmental hazards and racial injustice.”); Alice Kaswan, Environmental Laws: Grist for the Equal Protection Mill, 70 U. Colo. L. Rev. 387, 389 n.1 (1999) (“The environmental justice movement has also encompassed the question of whether low-income communities receive a fair distribution of environmental benefits and burdens.”); Richard J. Lazarus, Symposium, Innovations in Environmental Policy: “Environmental Racism! That’s What It Is,” 2000 U. Ill. L. Rev. 255, 259–61 (2000) [hereinafter Lazarus, Environmental Racism] (suggesting that long time civil rights activist and former NAACP executive director Benjamin Chavis’s coinage of the phrase “environmental racism” more adequately embodied what “environmental justice” had only hinted at—that the nation’s environmental laws were inherently racist in both implementation and application).
2 See, e.g., Guana supra note 1, at 3 n.5; Kaswan, supra note 1, at 389 & n.2. “The historical tension between the civil rights and environmental movements has left the civil-rights-based environmental justice movement with an unsurpassing skepticism of environmental laws.” Id. at 389; see also Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 788–89 (1993) [hereinafter Lazarus, Pursuing Environmental Justice]. Lazarus writes that during the emergence of environmentalism as a legally and politically potent force in the 1970s, “environmentalists were seen as ignoring both the ‘urban environment’ and the needs of the poor in favor of seeking ‘governmental assistance to avoid the unpleasant externalities of the very system from which they themselves [had] already benefited so extensively.’” Id. at 788 (quoting Peter Marcuse, Conservation for Whom?, in Environmental Quality and Social Justice in Urban America 73, 75 (James N. Smith ed., 1974)). It has been argued that this disturbing reality went unnoticed because 1970s environmentalism found its structural and moral grounding in the civil rights movement of previous decades. See id. at 789 & n.10. Accordingly, the cognitive dissonance aroused by the charge that the two progressive movements were at odds was possibly too great to allow recognition of this reality in the minds of many 1970s environmentalists. See id. at 789 & n.11.
3 Kaswan, supra note 1, at 389 (“The emergence of the environmental justice movement has prompted the traditional civil rights and environmental movements to confront each other’s traditions, expectations, aspirations, and modes of action.”).
4 See generally Guana, supra note 1, at 7–22 (detailing the rise of environmental justice into the national consciousness, as catalyzed by the Warren County, North Carolina polychlorinated biphenyl landfill protests of 1982); 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, 631–37 (2000) (presenting a concise history of the origins of the modern environmental justice movement).
5 See Guana, supra note 1, at 29–32.
6 See id. at 31–34.
7 See id. at 34–36.
8 See id. at 36–38.
9 See generally Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir. 1983); Miller v. City of Dallas, 2002 WL 230834 (N.D. Tex. Feb 14, 2002). Both cases provide a general introduction to the breadth of issues involved in environmental justice litigation, and illustrate the variety of claims that can be raised. For cases built specifically around Title VI causes of action, see infra Part I.B.2.
10 See 40 C.F.R. �� 7.10–.115 (2002) (imposing Title VI requirements upon recipients of EPA funding, and outlining administrative procedures for determining compliance); Lazarus, Environmental Racism, supra note 1, at 265–67; see also infra Parts I.A, I.B.1.
11 See Lazarus, Environmental Racism, supra note 1, at 271–73. See generally Janet V. Siegel, Note, Negotiating for Environmental Justice: Turning Polluters into “Good Neighbors” Through Collaborative Bargaining, 10 N.Y.U. Envtl. L.J. 147, 171–95 (2002) (explaining the emerging concept of “collaborative bargaining”).
12 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 252 �� 601–602 (codified as amended at 42 U.S.C. �� 2000d–2000d-1 (2000)).
13 40 C.F.R. �� 7.10–.120.
14 42 U.S.C. � 2000d (2000).
15 42 U.S.C. � 2000d-1.
16 40 C.F.R. �� 7.30, 7.35(a).
17 40 C.F.R. � 7.35(b). Throughout this Note, these, and similarly constructed regulations, are referred to as “disparate-impact regulations.”
18 See generally 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, 199–242 (2002) (chronicling the history of private disparate-impact Title VI environmental justice litigation, and concluding that private disparate-impact claims are no longer legally cognizable).
19 See infra Part I.B.2.
20 Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
21 42 U.S.C. � 1983 (2000).
22 See infra Part I.B.2.d.
23 S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 774 (3d Cir. 2001) [South Camden III].
24 See infra Part I.B.2.d.
25 They have, however, come extremely close. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (holding that in order for spending legislation to create enforceable rights under � 1983, Congress must provide clear and unambiguous language indicating their intent to create individual rights against any state actor that accepts federal funds).
26 See Core, supra note 18, at 239–42.
27 See infra note 206 and accompanying text.
28 Over forty administrative agencies aside from EPA have promulgated disparate-impact regulations pursuant to their asserted authority under Title VI. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 619 (1983) (Marshall, J., dissenting). As such, the long-term consequences of Sandoval’s holding will extend well beyond the immediate realm of environmental justice.
29 Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
30 South Camden III, 274 F.3d 771, 774 (3d Cir. 2001).
31 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
32 See id.
33 See id.
34 See Civil Rights Act of 1964 Title VI �� 601–602, 42 U.S.C. �� 2000d–2000d-1 (2000).
35 Id.
36 42 U.S.C. � 2000d (2000) (“No 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.”).
37 42 U.S.C. � 2000d-1. Section 602 reads in pertinent part:
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity . . . is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.
Id. Section 602 then goes on to set out the method for approval and enforcement of Title VI regulations. Id.
38 Id.
39 38 Fed. Reg. 17,968 (1973), amended by 46 Fed. Reg. 2,306 (1981), amended by 49 Fed. Reg. 1,661 (1984) (codified at 40 C.F.R. � 7.35(b) (2002)).
40 Id. (emphasis added).
41 Washington v. Davis, 426 U.S. 229, 244–48 (1976).
42 40 C.F.R. � 7.35(b).
43 Lazarus, Pursuing Environmental Justice, supra note � 2, at 830 (1993) (“Commentators have long contended [that] the practical effect of the required ‘discriminatory intent’ element is devastating to most civil rights claims because of the inordinate difficulty of proving the subjective, motivating intent of a decision maker.”). For a particularly weighty example, in terms of human impact, of a case lost on equal protection grounds, see Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673 (S.D. Tex. 1979), aff’d without opinion, 780 F.2d 1038 (5th Cir. 1986).
44 See, e.g., Latham Worsham, supra note 4, at 644-46 (2000); Bradford C. Mank, Is There a Private Cause of Action Under EPA’s Title VI Regulations?: The Need to Empower Environmental Justice Plaintiffs, 24 Colum. J. Envtl. L. 1, 12 (1999) (“Because plaintiffs have been unsuccessful thus far in winning environmental discrimination claims under the Equal Protection Clause, advocates have turned the focus to Title VI of the Civil Rights Act because it allows claims based on proof of unjustified disparate impacts.”).
45 40 C.F.R. � 7.120 (2002).
46 Id. � 7.120(d)(1)(i).
47 Id. � 7.120(d)(1)(ii)–(d)(2)(i).
48 Id. � 7.115(c)(1)(i)–(ii).
49 Id. � 7.115(d)(1)–(2).
50 Id. � 7.115(d)(2).
51 40 C.F.R. � 7.115(e) (2002).
52 Id.; id. � 7.130 (outlining procedures for funding termination).
53 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994), reprinted in 42 U.S.C. � 4321 (2000).
54 Latham Worsham, supra note 4, at 647–48.
55 Id.
56 Id.
57 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. 26, 2003). This case, also known as Select Steel, was decided adversely to the plaintiffs. Id.
58 See infra Part I.B.2.a–b, d.
59 See infra Part I.B.2.c–d.
60 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 281(87 (1978).
61 Cannon v. Univ. of Chi., 441 U.S. 677, 694–703 (1979).
62 See Bakke, 438 U.S. at 287. But see discussion infra Part III.B.
63 Cannon, 441 U.S. at 694–703.
64 Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983).
65 Id. at 583–607. In Guardians Association, a deeply divided Supreme Court handed down five conflicting and overlapping opinions on the scope of Title VI, rather than unanimously accepting Bakke’s declaration of Title VI’s coextensiveness with the Equal Protection Clause. Id. (White, J.); id. at 607–12 (Powell, J., concurring); id. at 612–15 (O’Connor, J., concurring); id. at 615–35 (Marshall, J., dissenting); id. at 635–45 (Stevens, J., dissenting). Commenting upon the five opinions handed down, Justice Powell remarked, “[o]ur opinions today will further confuse rather than guide.” Id. at 608 (Powell, J., concurring).
66 Alexander v. Choate, 469 U.S. 287, 293 (1985).
67 Id. While an apparently simple opinion, Choate, in conjunction with Bakke and Guardians Association, has created immense confusion and debate regarding the scope and enforceability of Title VI. See discussion infra Part III.A–B.
68 See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 929–31 (3d Cir. 1997), vacated as moot, 524 U.S. 974 (1998) (declining to hold that Guardians Association and Choate had already created a private right of action to enforce disparate-impact regulations). The court wrote: “Guardians did not explicitly address whether a private right of action exists under discriminatory effect regulations promulgated under section 602.” Id. at 929. The court also later writes, “we find no direct authority in Alexander [v. Choate] that either confirms or denies the existence of a private right of action.” Id. at 931; see also Choate, 469 U.S. at 289–309 (declining to explicitly address the issue of whether an implied right of action exists to enforce disparate-impact regulations).
69 132 F.3d at 932.
70 Id. at 927.
71 Id.
72 Id. at 929–33.
73 Id. at 933–36. This test was built upon the Supreme Court’s test for locating implied causes of action within statutes—the familiar Cort test. Id.; Cort v. Ash, 422 U.S. 66, 78–85 (1975).
74 Chester Residents Concerned for Quality Living, 132 F.3d 925, 937 (3d Cir. 1997), vacated as moot, 524 U.S. 974 (1998).
75 Core, supra note 18, at 206 (2002).
76 Chester Residents Concerned for Quality Living v. Seif, 524 U.S. 974, 974 (1998).
77 See Core, supra note 18, at 205 & n.86 (citing cases also finding an implied right of action, both within and outside of the environmental justice context); see, e.g., Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).
78 S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F. Supp. 2d 446 (D.N.J. 2001) [South Camden I]. Five days later, the Supreme Court in Alexander v. Sandoval indirectly denied the South Camden I plaintiffs the only theory of their case by ruling upon an unrelated action also involving an implied cause of action asserted under the Department of Justice’s own disparate-impact regulations. See Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
79 South Camden I, 145 F. Supp. 2d at 446.
80 Id. at 450–52.
81 Id.
82 Id. at 459.
83 Id. at 450–52, 459–60.
84 See id. at 450–52, 460–61.
85 South Camden I, 145 F. Supp. 2d at 450–52.
86 Id. at 461.
87 Id. at 461–68.
88 Id. at 481; see id. at 474–81 (reasoning of the court).
89 Id. at 495; see id. at 481–97 (reasoning of the court).
90 189 F.3d 387 (3d Cir. 1999).
91 South Camden I, 145 F. Supp. 2d at 473–74.
92 See id.
93 Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
94 Id.
95 Id. at 279–80 (citing Cannon v. Univ. of Chi., 441 U.S. 677, 696 (1979)).
96 Id. at 280–81 (citing Alexander v. Choate, 469 U.S. 287, 293 (1985); Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 610–11 (1983); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978)).
97 Id. at 282–84 (clarifying the holdings of Cannon and Guardians Association, which respondents assert had established a private right of action to enforce disparate-impact regulations). “Neither [Guardians Association], nor any other [case] in this Court, has held that the private right of action exists.” Id. at 284.
98 Id. at 284–86.
99 This, and other comments in Sandoval, indicate the Supreme Court’s unspoken view that disparate-impact regulations are not authorized under Title VI. See John Arthur Laufer, Note, Alexander v. Sandoval and Its Implications for Disparate Impact Regimes, 102 Colum. L. Rev. 1613, 1628–41 (2002) (explaining how Sandoval’s “unofficial holding” was to invalidate disparate-impact regulations as beyond agency authority under Title VI). But see discussion infra Part III.
100 Sandoval, 532 U.S. at 285.
101 Id. at 286 (“[The right to enforce disparate-impact regulations] must come, if at all, from the independent force of � 602.”).
102 Id. 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.”). The dissent notes that this approach ignores the more searching four factor test the Court outlined in Cort v. Ash and used in that case, and several subsequent, to determine when it is appropriate to imply a private right of action from a statute. Id. at 311–12 (Stevens, J., dissenting); see also Cort v. Ash, 422 U.S. 66, 78–85 (1975).
103 Id. at 289 (“Far from displaying congressional intent to create new rights, � 602 limits agencies to ‘effectuat[ing]’ rights already created by � 601.”).
104 See id. at 288.
105 See id. at 289.
106 Sandoval, 532 U.S. at 289 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).
107 Id. at 289–90. “The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Id. at 290.
108 Id. at 291 (“[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.”).
109 Sandoval, 532 U.S. at 293.
110 S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F. Supp. 2d 505, 509 (D.N.J. 2001) [South Camden II].
111 42 U.S.C. � 1983 (2000).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Id. Justice Stevens in his dissent in Sandoval had raised the possibility of private parties using the express cause of action created by Congress in � 1983 to seek redress for violations of section 602 regulations. See Sandoval, 532 U.S. at 299–300 (Stevens, J., dissenting).
112 South Camden II, 145 F. Supp. 2d at 509.
113 Id.
114 See id. at 513–19. The court undertook an examination of what Sandoval did and did not hold with Justice Scalia’s “admonition” clearly in mind that courts are “bound by holdings, not language.” Id. at 513.
115 Id. at 519 (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citation omitted)).
116 Id. The three parts of the Blessing test are: (1) congressional intent that the provision benefit the plaintiff; (2) demonstration that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence; and (3) the statute must unambiguously impose a binding obligation on the States. Id. (citing Blessing, 520 U.S. at 340–41).
117 Id. at 526.
118 South Camden II, 145 F. Supp. 2d 505, 526–30 (D.N.J. 2001) (discussing Wright v. City of Roanoke, 479 U.S. 418, 419–32 (1987)).
119 Id. at 535–47.
120 Id. at 549.
121 Id.
122 South Camden III, 274 F.3d 771, 774 (3d Cir. 2001).
123 Id. at 782–83 (citing Wright, 479 U.S. at 430–31 & n.11).
124 See id. at 782–83, 788–91.
125 See id. at 788–91.
126 See id. at 789 (citing Alexander v. Sandoval, 532 U.S. 275, 289 (2001)).
127 See id. at 789–91. Justice Stevens, dissenting in Sandoval, disagreed with this narrow reading of section 602’s language. See infra note 292.
128 South Camden III, 274 F.3d at 790. This holding echoes language found in Sandoval: “[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.” Alexander v. Sandoval, 532 U.S. 275, 291 (2001).
129 As mentioned, however, in note 25, supra, a recent Supreme Court decision outside the Title VI context has effectively foreclosed � 1983 enforcement of any “right” to be free from disparate-impact discrimination. See Gonzaga Univ. v. Doe, 536 U.S. 273, 282–86 (2002). The Gonzaga Court, in ruling that the Family Educational Rights and Privacy Act’s nondisclosure provisions did not establish an individual right enforceable through � 1983, held the following: “[w]e now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under � 1983.” Id. at 283. The Court also held that, “the initial inquiry—determining whether a statute confers any right at all—is no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute ‘confer[s] rights on a particular class of persons.’” Id. at 285 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)). Gonzaga thereby implicitly validated the Third Circuit’s approach of relying upon the Sandoval analysis in its search for � 1983 enforceable Title VI rights. See discussion supra Part I.B.2.d.
130 See Lisa S. Core, supra note 18, at 239–42.
131 See Kevin A. Gaynor & Benjamin S. Lippard, Environmental Enforcement: Industry Should Not Be Complacent, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,488, 10,501–02 (Apr., 2002) (noting that in the summer of 2001, Administrator Whitman created a special task force within the Office of Enforcement and Compliance Assurance to address OCR’s backlog of Title VI complaints).
132 In particular, two articles have recently noted that section 110(a)(2)(E) of the Clean Air Act raises potentially sweeping environmental justice permitting implications. George Hays & Nadia Wetzler, Federal Recognition of Variances: A Window into the Turbulent Relationship Between Science and Law Under the Clean Air Act, 13 J. Envtl. L. & Litig. 115, 126–27 (1998); Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice into EPA Permitting Authority, 26 Ecology L.Q. 617, 632–33 (1999). Section 110 governs the submission of state implementation plans (SIPs) to the EPA, and describes the minimum requirements that each SIP must meet in order to receive EPA approval. 42 U.S.C. � 7410(a)(2)(E) (2000). Section 110(a)(2)(E) requires that each SIP shall “provide necessary assurances that the state . . . is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof.” Id. Lazarus and Tai write:
To the extent that Title VI of the Civil Rights Act constitutes “any provision of Federal . . . law” within the meaning of Section 110(a)(2)(E), this CAA provision may provide EPA with both authority and responsibility to ensure that SIPs, including their permitting provisions, do not result in the kind of disparate environmental results Title VI condemns.
Lazarus & Tai, supra, at 633 (emphasis added).
133 40 C.F.R. � 7.35(b) (2002).
134 See, e.g., Gilbert Paul Carrasco, Public Wrongs, Private Rights: Private Attorneys General for Civil Rights, 9 Vill. Envtl. L.J. 321, 326–27 (1998); Barry E. Hill, Chester, Pennsylvania—Was It a Classic Example of Environmental Injustice?, 23 Vt. L. Rev. 479, 507–16 (2000); Mank, supra note 44, at 12–16 (illustrating some pre-Sandoval readings of Guardians Association and Choate, offered to support the validity of disparate-impact regulations).
135 See infra notes 206, 230 and accompanying text.
136 See discussion infra Part III.A.
137 467 U.S. 837 (1984).
138 The test that Chevron elucidated was not new, but firmly rooted in long established precedent. See id. at 843–46 & nn.12–14. Specifically, the Court noted that, “[t]he principle of deference to administrative interpretations ‘has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies . . . .’” Id. at 844. Further, “‘[i]f this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.’” Id. at 845 (quoting United States v. Shimer, 367 U.S. 374, 382, 383 (1961)).
139 See Chevron U.S.A., 467 U.S. at 842–44.
140 Id. at 839.
141 Id. at 845–49. In brief: section 109 of the CAA directs EPA to promulgate National Ambient Air Quality Standards (NAAQS) for a wide variety of pollutants based upon the maximum levels of each that are safe for human health. 42 U.S.C. � 7409 (2000). Section 110 then delegates to the states the responsibility of assuring that each NAAQS is met within its own borders. Id. � 7410. States do this by implementing a State Implementation Plan (SIP) that, inter alia, regulates via permit how much of particular pollutants given industries can emit in different regions of the state. Id. States are delegated broad discretion in how they go about achieving the NAAQSs, but ultimately, each SIP must be approved by EPA as technically capable of meeting the NAAQSs, and additionally, must operate in accordance with all other requirements of the CAA and federal law. Id. � 7410(a)(2). In addition to this basic structure, section 111 further requires that major new stationary sources of pollution emit no more than the lowest emissions rate that is achievable using the best available technology (BAT), and delegates to EPA responsibility for creating a list of “major stationary sources” and the new source performance standards (NSPS) by which they must abide. Id. � 7411.
142 Clean Air Act Amendments of 1977, Pub. L. No. 95–95, 91 Stat. 685 (1977); see Chevron U.S.A., 467 U.S. at 848–49.
143 Currently codified at 42 U.S.C. � 7502(b)(6); Chevron U.S.A., 467 U.S. at 849–50.
144 These stringent emissions criteria were contained in section 173 of the amendments, and are currently codified at 42 U.S.C. � 7503. Specifically, new stationary sources within a nonattainment area must meet lowest achievable emission rates (LAER), which are more stringent than the NSPS standards which mandate BAT for new stationary sources within attainment areas. 42 U.S.C. �� 7501(3), 7503(a)(2).
145 Chevron U.S.A., 467 U.S. at 851.
146 Id. at 839–41, 857–59.
147 The bubble concept was implicitly created by EPA definitions of two ambiguous statutory terms. “‘Stationary source’ means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act.” 40 C.F.R. � 52.01(a) (1983). “‘Building, structure, facility, or installation’ means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) . . . .” 40 C.F.R. � 51(j)(l)(ii) (1983).
148 Chevron U.S.A., 467 U.S. at 840. A stationary source is considered modified only if such modification results in an increase in emissions. 42 U.S.C. � 7411(4). Therefore, since an entire plant is considered a stationary source, if one component within the plant has an increase in emissions, but there are equivalent offsetting reductions elsewhere in the plant, the entire stationary source (i.e. the plant) has not been modified, and will not fall under the permitting requirements of section 172(b)(6), currently codified at 42 U.S.C. � 7502(b)(6).
149 The challenge was brought pursuant to 42 U.S.C. � 7607(b)(1).
150 See Chevron U.S.A., 467 U.S. at 859–66 (respondent’s argument on appeal).
151 Id. at 841 (citing Natural Res. Def. Council v. Gorsuch, 685 F.2d 718, 723 (D.C. Cir. 1982)).
152 Id.
153 Id. at 841–42.
154 Id.
155 Id. at 842–43.
156 Chevron U.S.A., 467 U.S. at 842–43.
157 Id.
158 See id. at 842–43.
159 Id. at 843. Indeed, this is the very error committed by the court of appeals: “The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term ‘stationary source’ when it had decided that Congress itself had not commanded that definition.” Id.
160 Id. (“The question for the court is whether the agency’s answer is based on a permissible construction of the statute.”).
161 Id. at 843–44.
162 See Chevron U.S.A., 467 U.S. at 843 n.11.
163 Id. at 848–53, 859–64.
164 See id. at 842–43. The court below had also correctly arrived at this conclusion. See id. at 841 (citing Natural Res. Def. Council v. Gorsuch, 685 F.2d 718, 723 (D.C. Cir. 1982)).
165 See id. at 863–65.
166 See id.
167 See id. at 845 (“[T]he question before [the court] was not whether in its view the [bubble] concept is ‘inappropriate’ in the general context of a program designed to improve air quality, but whether the Administrator’s view that it is appropriate in the context of this particular program is a reasonable one.”).
When a challenge to an agency construction of a statutory provision . . . centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail . . . . The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones . . . .
Id. at 866.
168 Chevron U.S.A., 467 U.S. at 843 n.9; Stephen G. Bryer et al., Administrative Law and Regulatory Policy 319 (5th ed. 2002).
169 To be more exact, “overwhelming” translates into almost 7000 cases—the number of federal court decisions that have cited Chevron U.S.A. as of December 2001. Bryer et al., supra note 168, at 289.
170 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995).
171 See id. at 703–04. The Court implicitly held that the statute is ambiguous by stating: “Congress did not unambiguously manifest its intent to adopt respondents’ view . . . .” Id. The Court, however, did not engage in application of the traditional tools of statutory interpretation to decide this fact, so much as it used those tools to decide that the Secretary’s definition was a reasonable construction of the statute (Chevron step two). See id. at 697, 704. Whatever the correct reading of Sweet Home’s reasoning, the case nonetheless serves as an illustration of the tools that are to be used in Chevron step one. See Bryer et al., supra note 168, at 319, 363.
172 See Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. at 697–708.
173 Id. at 690.
174 Id. at 697–98.
175 Id. at 698–700.
176 See id. at 700–01.
177 Id. at 704–08.
178 MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994).
179 Id. at 220.
180 Id. at 220, 225–26.
181 Id. at 227.
182 See id. at 225–28.
183 See id.
184 Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
185 See id. at 133.
186 See id.
187 Id. (citing United States v. Estate of Romani, 523 U.S. 517, 530–31 (1998); United States v. Fausto, 484 U.S. 439, 453 (1988)).
188 See id. (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)).
189 Am. Mining Cong. v. United States Envtl. Prot. Agency, 824 F.2d 1177 (D.C. Cir. 1987).
190 Id. at 1178.
191 Id. at 1193.
192 Id. at 1183–85. “The starting point in every case involving statutory construction is ‘the language employed by Congress.’” Id. at 1183 (quoting CBS v. FCC, 453 U.S. 367, 377 (1981)).
193 Id. at 1185–87. The court turned to this tool after expressing hesitance to “attribute decisive significance to the ordinary meaning of statutory language.” Id. at 1184. Rather, the court accorded considerable, but not conclusive weight to the plain meaning of the statutory term “discarded.” Id. at 1185.
194 Id. at 1187–89. “[W]e do not . . . construe statutory phrases in isolation; we read statutes as a whole.” Id. at 1187 (citing United States v. Morton, 467 U.S. 822, 828 (1984)). Further, the court added that “the structure of a statute, in short, is important in the sensitive task of divining Congress’s meaning.” Id.
195 Am. Mining Cong., 824 F.2d at 1190–93. The court, however, offers the proviso that legislative history is only useful in determining congressional intent in the presence of statutory ambiguity, and that where the statute itself is clear, legislative history bears weight only in the exceptional circumstances where the history clearly expresses an intent contrary to its language. Id. at 1190.
196 See Bryer et al., supra note 168, at 290.
197 Id.
198 Id. at 290, 395–96.
199 Id. at 395–96.
200 For one possible Chevron step-two analysis of 40 C.F.R. � 7.35(b), see Note, After Sandoval: Judicial Challenges and Administrative Possibilities in Title VI Enforcement, 116 Harv. L. Rev. 1774, 1783-85 (2003).
201 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
202 Justice Stevens, dissenting in Sandoval, however, did point to the fact that a Chevron analysis would properly resolve the question of Title VI’s scope. See Alexander v. Sandoval, 532 U.S. 275, 309–10 (2001) (Stevens, J., dissenting). At least one case prior to Sandoval also noted the importance of Chevron U.S.A. in resolving the question of Title VI’s scope. Harris v. James, 127 F.3d 993, 1010 (11th Cir. 1997) (“determining the validity of the [disparate impact] regulation would require application of the analysis set out in [Chevron U.S.A.]”). Yet surprisingly, the author can find no cases that have actually set out to perform this analysis. A few scholars, however, have undertaken a Chevron analysis of Title VI. Barry Hill, supra note 134, at 507–16, was perhaps one of the first scholars to make such an attempt. His analysis, however, does not specifically employ the tools of statutory construction courts have used in performing Chevron analyses. Hill, supra note 134, at 507–09; supra Part II.B.1. Hill treats step two more extensively, but relies heavily upon the very line of cases subsequently called into question by Sandoval. See id. at 509–16; Sandoval, 532 U.S. at 281–82. A later, post-Sandoval student piece, offers a brief step-one analysis, and a step-two analysis rooted in caselaw-independent policy rationales. See Note, supra note 200, at 1782–85.
203 See supra note 134 (giving examples of literature that have used Guardians Association and Choate in support of the proposition that disparate-impact regulations are valid exercises of administrative authority under Title VI).
204 Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983).
205 Alexander v. Choate, 469 U.S. 287 (1988).
206 See Sandoval, 532 U.S. at 282 (“These statements [in Guardians Association and Choate that regulations promulgated under � 602 may validly proscribe activities having a disparate impact on racial groups] are in considerable tension with the rule of Bakke and Guardians that � 601 forbids only intentional discrimination . . . .”); infra Part III.A. In a footnote responding to the dissent’s argument for the validity of disparate-impact regulations, Sandoval offers more proof of the majority’s unspoken invalidation of disparate-impact regulations: “[w]e cannot help observing, however, how strange it is to say that disparate-impact regulations are ‘inspired by, at the service of, and inseparably intertwined with � 601’ . . . when � 601 permits the very behavior that the regulations forbid.” Id. at 286 n.6; see also Thomas A. Lambert, The Case Against Private Disparate Impact Suits, 34 Ga. L. Rev. 1155, 1210–18 (2000) (arguing in accord with Sandoval that Bakke indicates congressional intent to limit Title VI to a prohibition of discrimination that would violate the Equal Protection Clause, i.e. intentional discrimination, and therefore, according to the holding in Chevron U.S.A., any regulation promulgated under Title VI must also be limited to prohibiting intentional discrimination); Laufer, supra note 99, at 1628–41 (2002) (explaining in detail the origins of Sandoval’s “unofficial holding” that invalidates disparate-impact regulations as beyond agency authority under Title VI).
207 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
208 See infra Part III.B. But see Lambert, supra note 206, at 1210–18.
209 See Sandoval, 532 U.S. at 281–82 (“Though no opinion of this Court has held that [regulations promulgated under section 602 of Title VI may validly proscribe activities having a disparate impact on racial groups], five Justices in Guardians voiced that view of the law at least as alternative grounds for their decisions, and dictum in Alexander v. Choate is to the same effect.”) (emphasis added).
210 See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 583–607 (1983) (White, J.); id. at 615–35 (Marshall, J., dissenting); id. at 635–45 (Stevens, J., dissenting).
211 See Alexander v. Choate, 469 U.S. 287, 293–94 (1988).
212 See supra note 134. Commentators have traditionally relied upon the “holdings” of these cases to support the validity of disparate-impact regulations. See supra note 134 (giving examples of literature that have used Guardians and Choate in support of the proposition that disparate-impact regulations are valid exercises of administrative authority under Title VI).
213 See Lambert, supra note 206, at 1203–09.
214 See infra Part III.B. But see Lambert, supra note 206, at 1210–18.
215 Guardians Ass’n, 463 U.S. at 592–93.
216 Id. at 607; see Lambert, supra note 206, at 1206.
217 Guardians Ass’n, 463 U.S. at 593–607; see Lambert, supra note 206, at 1206.
218 See Lambert, supra note 206, at 1206 & n.159 (dictum is “[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).” (quoting Black’s Law Dictionary 1100 (7th ed. 1999) (defining “obiter dictum”))).
219 Lambert, supra note 206, at 1206–07 (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.’” (citing Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted))).
220 Alexander v. Choate, 469 U.S. 287, 293 (1985).
221 See Alexander v. Sandoval, 532 U.S. 275, 281–82 (2001); Lambert, supra note 206, at 1208.
222 Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 929 (3d Cir. 1997) (“Guardians stands for at least two propositions . . . discriminatory effect regulations promulgated by agencies pursuant to section 602 are valid exercises of their authority under that section.”).
223 South Camden I, 145 F. Supp. 2d 446, 473–74 (D.N.J. 2001).
224 Laufer, supra note 99, at 1626 n.71.
225 Supra note 209.
226 Id.
227 Laufer, supra note 99, at 1629; supra note 209.
228 See Alexander v. Sandoval, 532 U.S. 275, 281 (2001) (“We must assume for purposes of deciding this case that regulations promulgated under � 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under � 601.”).
229 See supra note 206.
230 Such a scenario could conceivably occur in the context of an appeal of an EPA OCR enforcement action—specifically, a party appealing a finding by OCR that it had violated 40 C.F.R. � 7.35(b) could argue that EPA’s disparate-impact regulations are ultra vires, as indicated by a simple extension of the reasoning found in Sandoval and explained by Laufer. See Laufer, supra note 99, at 1628–41.
231 See supra note 206 and infra Part III.B.
232 Lambert, supra note 206, at 1211.
233 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978).
234 Washington v. Davis, 426 U.S. 229, 244–48 (1976).
235 Lambert, supra note 206, at 1210–11, 1215–18. “The Court’s holding in Bakke forecloses any claim that the Title VI definition of discrimination is ambiguous: Bakke held that the Title VI prohibition is co-extensive with that of the Fourteenth Amendment and thus reaches only intentional discrimination.” Id. at 1217.
236 See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842–43 (1984); Lambert, supra note 206, at 1210–11, 1215–18.
237 See Chevron U.S.A., 467 U.S. at 842–43.
238 Bakke, 438 U.S. at 287.
239 See Lambert, supra note 206, at 1215–18.
240 This discussion in Bakke, 438 U.S. at 281, is consistent with the definition of dictum found in Black’s Law Dictionary. See supra note 218; see also Charles F. Abernathy, Title VI and the Constitution: A Regulatory Model for Defining “Discrimination,” 70 Geo. L.J. 1, 20 (1981) (“[Bakke’s] statement that ‘Title VI’s definition of racial discrimination is absolutely coextensive with the Constitution’s was unnecessary for decision of the case.’”); Gil Kujovich, Desegregation in Higher Education: The Limits of a Judicial Remedy, 44 Buff. L. Rev. 1, 41 (1996) (“Bakke presented only the specific issue of whether Title VI prohibits race-based affirmative action when such action is permitted by the Constitution. The case did not require a decision on the general congruence between Title VI and the Constitution.”).
241 Bakke, 438 U.S. at 281.
242 Id. (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring)).
243 See id. at 287–88.
244 See supra note 218.
245 See Bakke, 438 U.S. at 291–305.
246 “This court is bound by holdings, not language.” Alexander v. Sandoval, 532 U.S. 275, 282 (2001) (Scalia, J.).
247 Id. at 282.
248 Indeed, what the Bakke Court implicitly stated in dicta was that Congress clearly and unambiguously expressed its intent to limit Title VI to a prohibition of intentional discrimination. See Bakke, 438 U.S. at 281–87. This is a Chevron step one analysis. For the reasons outlined here, and in Part III.C.2. infra, however, the Bakke Court performed this analysis incorrectly.
249 See Bakke, 438 U.S. at 281–87.
250 Washington v. Davis, 426 U.S. 229, 244–45 (1976). The Court did draw attention to several jury selection cases in which they had previously indicated the necessity of proving intentional exclusion of blacks from jury pools to establish an Equal Protection violation. See id. at 239–43. However, the Court also recognized a long line of appellate cases that had “expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation.” See id. at 244–45. The Court then found it necessary to disagree explicitly with these cases and offer a policy analysis of why proof of discriminatory intent is a necessary component of showing an Equal Protection violation, thereby implicitly indicating that prior to Washington v. Davis, the issue had not yet been conclusively settled. See id. at 245–48. It can only be assumed then, that at the time the Civil Rights Act of 1964 was enacted, the judiciary had not yet reached consensus on the scope of Equal Protection.
251 See supra note 250; Abernathy, supra note 240, at 8 (remarking that during congressional debate on Title VI, “the state of constitutional [Equal Protection] interpretation was continually evolving.”).
252 Supra Part II.B.1.
253 Am. Mining Cong. v. United States Envtl. Prot. Agency, 824 F.2d 1177 (D.C. Cir. 1987).
254 Bakke, 438 U.S. at 284. Several other courts have made similar observations as to the ambiguity of the word “discrimination.” See, e.g., Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 592 (1983) (White, J.) (“The language of Title VI on its face is ambiguous; the word ‘discrimination’ is inherently so.”); Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) (“The term ‘discrimination’ as used in Title VI is, of course, notoriously ambiguous . . . .”).
255 See Civil Rights Act of 1964, 42 U.S.C. �� 2000d–2000d-1 (2000).
256 Compare 42 U.S.C. � 2000d, with Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 859–62 (1984).
257 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697–98 (1995).
258 Id. at 697 (citing Webster’s Third New International Dictionary 1034 (Merriam-Webster, Inc. 1966)).
259 Id.
260 Webster’s Third New International Dictionary 648 (Merriam-Webster, Inc. 1986) [hereinafter Webster’s]. Discrimination is also defined as “the according of differential treatment to persons of an alien race or religion (as by formal or informal restrictions imposed in regard to housing, employment, or use of public community facilities).” Id.
261 Id.
262 Id.
263 See MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225–28 (1994); The American Heritage Dictionary 247 (4th ed. 2001) (“Discriminate: 1. To make a clear distinction; differentiate. 2. To make distinctions on the basis of preference or prejudice.”). While the second definition seems to contemplate intent, it in reality does not. Noticeably absent from this definition is any notion of knowledge of one’s preference or prejudice, or the intentional desire to exercise that preference to someone’s detriment. Just as one does not need to exercise intent in order to “harm” an animal, one does not need to exercise intent in order to make distinctions on the basis of preference or prejudice. Prejudice and preference can be subconscious and unrecognized. See also Black’s Law Dictionary 209 (2nd pocket ed. 2001) (“Discrimination, . . . 2. Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.”) (emphasis added). This definition contemplates the very concept of unintentional, disparate-impact discrimination. See Griggs v. Duke Power Co., 401 U.S. 424, 426–36 (1971).
264 MCI Telecomm. Corp., 512 U.S. at 225–28.
265 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697 (1995).
266 See Webster’s, supra note 260, at 648.
267 See Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. at 697–98, 699 n.12.
268 See Webster’s, supra note 260, at 648 (definition of discrimination).
269 See, e.g., Statutory History of the United States: Civil Rights 1017–1456 (Bernard Schwartz, ed. 1970); Abernathy, supra note 240, at 1–49.
270 Title VI was proposed and debated upon in a substantially different form from what was ultimately enacted into law. Abernathy, supra note 240, at 22 & n.148 (citing Civil Rights: Hearings Before Subcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong., 1st Sess. 659 (1963)).
271 Abernathy, supra note 240, at 22 (citing Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 155 (1965)).
272 Id. (citing E. Redman, The Dance of Legislation 10 (1973) (quoting Woodrow Wilson, Congressional Government 297 (1913)).
273 Abernathy also notes the minimal probative value of quotations from Title VI debate that refer to Constitutional principles, because members of Congress commonly employ Constitutional rhetoric merely to strengthen their arguments, and not necessarily to indicate their specific interpretation of a statute. See id.
274 Id.
275 Id. at 25 (citing H.R. Rep. No. 88-914, at 106 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2473 (minority views of Reps. Poff and Cramer)). Several other members expressed concerns that “discrimination” might include “mere racial imbalance” (i.e., disparate impact). Id. at 25–26 & nn.173–74.
276 See Abernathy, supra note 240, at 26–32.
277 Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984).
278 See Abernathy, supra note 240, at 29–30; see also Bradford C. Mank, Are Title VI’s Disparate Impact Regulations Valid?, 71 U. Cin. L. Rev. 517, 528–32 (2002) (discussing Abernathy’s conclusion that Congress intended to leave the precise meaning of discrimination unresolved, and to instead delegate the issue to administrative discretion).
279 The then popular term for “disparate-impact discrimination.” Abernathy, supra note 240, at 25–26.
280 Id. at 27.
281 Id.
282 See id. at 28–30. This amendment exists as current section 602.
283 See Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984).
284 See Abernathy, supra note 240, at 29–30.
285 Id. at 30 & n.209 (emphasis added).
286 See id. at 30 (quoting H.R. Rep. No. 88-914, at 68 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2436).
287 Id. at 32.
288 Am. Mining Cong. v. United States Envtl. Prot. Agency, 824 F.2d 1177, 1185 (D.C. Cir. 1987) (quoting Burnet v. Chi. Portrait Co., 285 U.S. 1, 6 (1932)).
289 See id. at 1185–86.
290 See id.
291 See id.
292 Justice Stevens, dissenting in Sandoval, seizes upon this “prophylactic” purpose, and offers an alternative route around the obstacle to disparate-impact regulation validity created by Sandoval’s reading of Bakke’s dicta. Alexander v. Sandoval, 532 U.S. 275, 303–10 (2001) (Stevens, J., dissenting). Justice Stevens writes that “� 602 . . . grant[s] the responsible agencies the power to issue broad prophylactic rules aimed at realizing the vision laid out in � 601, even if the conduct captured by these rules is . . . broader than that which would otherwise be prohibited [by section 601 acting alone].” Id. at 305. In other words, regardless of what conduct section 601 alone can be said to prohibit, section 602 expressly grants agencies the power to go beyond the strict contours of section 601 in order to effectuate Title VI’s “broad aspiration[s].” See id. at 306. According to Justice Stevens, the relationship of section 601 to section 602 can be viewed in two possible ways. The first conceptualization—and the one adopted by this Note and the Sandoval majority—is one where sections 601 and 602 “stand in isolation”—section 601 is the “meat” of the law, and section 602 merely “effectuates” the law as set out by section 601. Id. at 304. The second conceptualization—embraced by Justice Stevens—is one where sections 601 and 602 are part of an “integrated remedial scheme.” Id. If sections 601 and 602 are viewed as an “integrated remedial scheme,” then disparate-impact regulations, rather than going beyond the authority of section 601, “apply � 601’s prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable.” Id. at 307. Whatever Bakke might have said in regard to the scope of section 601, then, becomes irrelevant in deciding upon the validity of a disparate-impact regulation—a disparate-impact regulation can arguably be found to be a valid furtherance of the broad antidiscriminatory aspirations of Title VI. See id. at 303–07.
293 Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 936 (3d Cir. 1997), vacated as moot, 524 U.S. 974 (1998).
294 Compare id., with Civil Rights Act of 1964, 42 U.S.C. �� 2000d–2000d-1 (2000).
295 Note that the “congressional ratification” argument for the validity of Title VI disparate-impact regulations, while still grounded in Title VI’s ambiguity, is technically distinct from the “administrative deference/Chevron” argument. See Mank, supra note 278, at 532–39 (discussing the congressional ratification argument in detail, and applying the opinion in Food & Drug Administration v. Brown & Williamson Tobacco Corp. to that argument).
296 Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000).
297 Id.
298 Id.
299 Id. at 143–55.
300 Id. at 155–56.
301 Id.
302 Brown & Williamson Tobacco, 529 U.S. at 156.
303 Mank, supra note 278, at 518 & n.8.
304 Id. at 518 & n.9.
305 See Brown & Williamson Tobacco, 529 U.S. at 143–55; Mank, supra note 278, at 532–33 (discussing several pieces of antidiscrimination legislation that implicitly ratify Title VI disparate-impact regulations by requiring adoption of regulations “similar” to those adopted under Title VI. Such an implication is created because almost all Title VI regulations prohibit disparate impacts).
306 See Abernathy, supra note 240, at 33. These amendments were: Education Funding Act, Pub. L. No. 90-247, � 112, 81 Stat. 787 (1968) (codified at 42 U.S.C. � 2000d-5 (2000)), Education Funding Act, Pub. L. No. 89-750, � 182, 80 Stat. 1209 (1966) (codified at 42 U.S.C. � 2000d-5 (2000)).
307 See Abernathy, supra note 240, at 34 (citing Pub. L. No. 91-230, � 2, 84 Stat. 121 (1970) (codified at 42 U.S.C. � 2000d-6 (2000))).
308 See Abernathy, supra note 240, at 35.
309 Pub. L. No. 91-230, � 2, 84 Stat. 121 (1970) (codified at 42 U.S.C. � 2000d-6 (2000)).
310 Id. (emphasis added).