[*PG61]ENVIRONMENTAL JUSTICE AND TITLE VI IN THE WAKE OF ALEXANDER v. SANDOVAL: DISPARATE-IMPACT REGULATIONS STILL VALID UNDER CHEVRON
Abstract: Disparate-impact regulations promulgated by EPA pursuant to Title VI of the Civil Rights Act of 1964, until recently, had shown promise as a private legal tool to obtain redress from the disparate siting of envi-ronmental harms in minority communities. Alexander v. Sandoval, how-ever, has held that there exists no private implied cause of action to en-force disparate-impact regulations. In so doing, the Court also strongly suggested that disparate-impact regulations, standing alone within EPA’s own administrative enforcement process, were invalid exercises of admin-istrative discretion under Title VI. The Court’s implicit reasoning, based upon Regents of the University of California v. Bakke, is unpersuasive because, contrary to Sandoval’s assertion, Bakke never held that there existed clear congressional intent to limit the scope of Title VI to intentional discrim-ination. Conversely, prior Supreme Court caselaw has never held that dis-parate-impact regulations are valid. Rather, an analysis under the holding of Chevron U.S.A. v. Natural Resources Defense Council is the only appropriate tool with which to prove the validity of disparate-impact regulations.
Environmental justice is a movement that attempts to forge conceptual and legal connections between the fundamentally intertwined social problems of race/class discrimination and environmental protec[*PG62]tion.1 Although civil rights and environmentalism are both viewed as progressive movements, many argue that their work has traditionally conflicted with one another.2 In recent decades, however, these ideological camps have recognized their common goals and approaches,3 giving rise to a hybrid, yet independent, environmental justice movement.4
Civil rights advocates, and the more recently galvanized environmental justice movement, recognize that poor, minority communities are exposed to a disproportionately greater share of environmental hazards than affluent, Caucasian neighborhoods—not because of in[*PG63]vidious racism, but as a result of neutral decisions made within intrinsically biased decision-making structures.5 These “disparate impacts” can be observed in three contexts: (1) disparate siting and permitting of hazardous facilities;6 (2) disparate enforcement of environmental laws;7 and (3) disparate clean-up of contaminated sites.8 In seeking to alleviate and prevent environmental harm from accruing to poor, minority communities, environmental justice practitioners rely heavily upon private litigation,9 but also attempt to influence the way policymakers conduct their administrative decision-making.10 Additionally, negotiation has begun to emerge as a viable alternative for citizen groups seeking to prevent or minimize the environmental harm suffered by their communities.11
Some recent litigation has focused on employing Title VI of the Civil Rights Act of 1964 (Title VI)12 and the Environmental Protection Agency (EPA) regulations enacted in accordance therewith.13 Title VI is divided into two operative parts: (1) section 601 creates a general prohibition against discrimination by barring recipients of federal money from subjecting beneficiaries to discrimination on the basis of race;14 and (2) section 602 directs that all federal agencies responsible for administering federal funds shall implement regulations that “effectuate the provisions of section 601.”15 In 1973, pursuant to the congressional mandate of section 602, EPA promulgated regulations that both prohibited intentional racial discrimination by recipients of EPA funding,16 [*PG64]as well as the use of “criteria or methods” having the effect of subjecting individuals to discrimination because of their race.17
The Title VI means toward achieving environmental justice, however, has been short lived.18 Initially, litigants attempted to directly enforce EPA’s so-called “disparate-impact regulations” by claiming the existence of an implied private right of action.19 When the Supreme Court in Alexander v. Sandoval20 held that no implied private right of action existed to enforce these regulations, litigants turned to � 198321 to allege that siting decisions having a disparate impact deprived plaintiffs of federal rights secured under EPA disparate-impact regulations.22 This approach too has been severely curtailed, most recently by the Third Circuit,23 which held that EPA disparate-impact regulations create no right enforceable under � 1983.24 Although the Supreme Court has yet to decide whether disparate-impact regulations can create rights enforceable under � 1983,25 many commentators have signaled that Title VI has now been effectively foreclosed as a private avenue of attack in the litigious crusade toward environmental justice.26 Furthermore, Sandoval has been read to cast severe doubt upon the validity of Title VI disparate-impact regulations in and of themselves,27 which would eradicate any efforts to administratively enforce these regulations through agency processes.28
[*PG65] This Note will argue, however, that while Sandoval29 and South Camden Citizens in Action v. New Jersey Department of Environmental Protection (South Camden III)30 have stripped Title VI regulations of both an implied right of action and � 1983 enforceable rights, EPA’s Title VI regulations still remain valid federal law under well established principles of judicial deference to administrative interpretations of ambiguous statutes.31 Part I of this Note examines a brief history of disparate-impact environmental justice litigation. Part II next explores case law bearing upon the validity of disparate-impact regulations promulgated pursuant to Title VI. Part III.A then rejects the assumption that the validity of these regulations is already a settled issue, and Part III.B refutes the counter-assumption—implicitly sanctioned by Sandoval—that under prior case law such regulations are invalid. After having dismissed both these assumptions, Part III.C outlines a basic Chevron32 analysis of Title VI disparate impact regulations. Having done so, this Note ultimately concludes that Congress has not expressed a clear and unambiguous intent to limit the scope of Title VI to purposeful discrimination. Therefore, under the holding of Chevron U.S.A., a court is constrained to defer to permissible agency constructions of the statute.33 Assuming then that EPA’s disparate-impact regulations are permissible constructions of Title VI, they are valid federal law, despite Sandoval’s implied assertions to the contrary.
Title VI of the Civil Rights Act of 1964 was designed to prohibit racial discrimination by entities receiving federal financial assistance.34 Title VI is divided into two operative components: section 601 and section 602.35 Section 601 prohibits racial discrimination by recipients of federal funds.36 Section 602 gives this proscription effect by [*PG66]requiring that all agencies empowered to distribute federal funding issue regulations designed to “effectuate the provisions” of section 601.37 These regulations must also be “consistent with achievement of the objectives of the statute authorizing the financial assistance.”38
Pursuant to the congressional command of section 602, in 1973 EPA promulgated a regulation39 that prohibits recipients of EPA funds —state environmental protection agencies, for example—from using “criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex . . . .”40 The regulation thereby alleviates the traditional plaintiff’s burden of proving intent, which exists when bringing actions under the Fourteenth Amendment’s Equal Protection Clause.41 Under EPA’s so-called “disparate-impact regulations,” proof of a disparate impact is alone sufficient to meet the plaintiff’s burden.42 Given the difficulty of proving discriminatory intent, especially in the context of industrial permitting decisions,43 environmental justice practitioners have viewed EPA’s disparate-impact regu[*PG67]lations as a new weapon against the effects of systemic environmental discrimination.44
If a private individual believes he or she has suffered a discriminatory effect as a result of action taken by a recipient of EPA financial assistance, EPA’s regulations allow that person to file a complaint with the EPA Office of Civil Rights (OCR).45 Upon filing, the complaint will be investigated for acceptance.46 If accepted, OCR will notify the alleged recipient violator and complainant and give the recipient a chance to respond to the complaint in writing, after which time informal resolution will be attempted.47 If a complaint cannot be resolved informally, OCR will then serve the recipient with “notice of preliminary finding of noncompliance,” which will contain recommendations for achieving voluntary compliance.48 The recipient may then either agree to these recommendations, send a written rebuttal of the preliminary findings, or respond with an explanation stating that compliance can be achieved in a way other than that recommended by OCR.49 If the recipient does not take one of these actions, OCR will then send a formal written determination of noncompliance to the recipient.50 After this time, the recipient has ten days from receipt of the formal determination of noncompliance to attain compliance.51 After ten days, OCR may begin funding-termination procedures.52
OCR was created in 1993 in response to President William J. Clinton’s Executive Order 12,898,53 which was designed to prod fed[*PG68]eral agencies into taking affirmative steps toward meeting their Title VI obligations.54 Nevertheless, the OCR complaint process has been criticized as extremely inefficient.55 Between September, 1993 and August, 1998, OCR received fifty-eight complaints and responded to only four.56 Of these four, only one was decided on the merits.57 Environmental justice litigators have accordingly learned to look elsewhere for satisfaction of their clients’ grievances by following two traditional paths to federal court: one path contemplates a suit based on an implied private right of action under EPA’s disparate-impact regulations, and the other contemplates reliance upon � 1983.58 Both these paths, however, have been closed through a series of unfavorable federal court decisions.59
There are two central questions that any private litigant needs to ask before asserting a cause of action under any statute: what behavior does the statute proscribe, and is the statute privately enforceable? With respect to Title VI, the Supreme Court first began to wrestle with these questions in Regents of the University of California v. Bakke60 and Cannon v. University of Chicago.61 Stating that “Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment,” the Bakke Court appeared to declare that Title VI prohibited only intentional acts of discrimination.62 Later, in Cannon, the Court answered the second question and ruled that Title VI created a private right of action.63 In 1983, however, Guardians Association v. Civil Service Commission64 seemed to reopen the Bakke debate over whether intent was a necessary element of an implied Title VI right of action.65 Two years later in Alexander v. [*PG69]Choate, the Court mercifully clarified the Guardians Association decision by identifying a “two pronged holding on the nature of the discrimination proscribed by Title VI [that had] emerged in [Guardians Association].”66 The Choate Court interpreted Guardians Association as having declared that “Title VI itself directly reach[es] only instances of intentional discrimination,”—and could be enforced privately according to the holding in Cannon—but that “actions having an unjustifiable disparate impact on minorities [could] be redressed through agency regulations designed to implement the purposes of Title VI.”67 The question still remained, however, as to whether these disparate-impact regulations could be enforced in court by private parties.68 The first case to take up that question in the arena of environmental justice was Chester Residents Concerned for Quality Living v. Seif (Chester Residents).69
Chester Residents involved a claim of disparate-impact discrimination against the Pennsylvania Department of Environmental Protection for issuing a permit to a waste processing facility in a predominantly black community.70 Plaintiffs alleged that the issuance of the permit violated EPA’s disparate-impact regulations.71 In ruling for the [*PG70]residents, the court first found that there was no Supreme Court precedent as to whether an implied right of action existed under EPA’s disparate-impact regulations, nor any precedent within the Third Circuit.72 Instead, to determine whether such an implied right existed in the present case, the court relied on its own three-prong test for locating implied rights of action within regulations.73 Applying its test, the court held that private plaintiffs could maintain an action under disparate-impact regulations promulgated pursuant to Title VI.74 While on certiorari to the Supreme Court, however, Pennsylvania withdrew the challenged permits.75 The Supreme Court dismissed the case as moot and vacated the Third Circuit’s decision,76 leaving the lower courts to continue in their almost universal trend of finding implied rights of action to enforce disparate-impact regulations promulgated under Title VI.77
The next significant case to imply a private right of action to enforce EPA’s disparate-impact regulations—significant because it was the last—also emerged from the Third Circuit.78 South Camden Citizens in Action v. New Jersey Department of Environmental Protection (South Camden I)79 involved a particularly weighty illustration of disparate-impact discrimination. The complaint arose from the granting of a Clean Air Act permit to the St. Lawrence Cement Company (SLC) to operate a cement plant in the Waterfront South neighborhood of Camden.80 Out of the 2132 per[*PG71]sons living in Waterfront South, 91% were minorities—63% African-American, 28% Hispanic.81 Additionally, over half the residents in Waterfront South lived at or below the federal poverty line—the median household income in Waterfront South was $15,082.82 At the time the permit was granted, the tiny minority neighborhood was already home to five EPA-permitted industries, two Superfund sites, four sites suspected of releasing hazardous substances and was being investigated by EPA for possible addition to the Superfund list, and fifteen other contaminated sites as identified by the New Jersey Department of Environmental Protection (NJDEP).83 Not surprisingly, the residents of Waterfront South suffer alarmingly poor health.84
Within this milieu, the permit granted to SLC allowed the plant to emit into the air cement dust, mercury, lead, manganese, nitrogen oxides, carbon monoxide, sulphur oxides, and volatile organic compounds.85 Although the permitted amounts of each of these hazardous substances met EPA’s National Ambient Air Quality Standards,86 testimony accepted into evidence indicated that due to the cumulative impact of the multiple permitted facilities in the Waterfront South neighborhood, addition of the new cement plant would increase the overall death rate, among other deleterious health effects, by at least 1.2%, and among individuals already suffering from cardiovascular and respiratory disease, by at least 1.6%.87
The court made two primary findings in granting plaintiff’s motion for a preliminary injunction and vacating NJDEP’s issuance of permits to SLC: (1) NJDEP’s failure to consider evidence beyond SLC’s compliance with technical emissions limitations, such as the totality of the circumstances within which the plant would operate—namely, the racial composition of the neighborhood and environmental burden already carried by the neighborhood—alone constituted a violation of EPA’s Title VI regulations;88 and (2) the citizens had established a prima facie case of disparate-impact discrimination based on race and national origin—a violation of 40 C.F.R. � 7.35(b) for which they had standing to sue.89
[*PG72] In reaching this decision, the district court first reiterated the Third Circuit’s holdings in Chester Residents and Powell v. Ridge90 that an implied private right of action existed to enforce disparate-impact regulations promulgated by EPA, and accordingly considered itself bound by these decisions.91 The Camden I court, however, made this declaration of stare decisis with an eye toward the future, noting that a pending Supreme Court decision could potentially overturn its ruling and earlier circuit court precedent allowing implied private rights of action under 40 C.F.R. � 7.35(b).92 Indeed, five days later, the Supreme Court in Alexander v. Sandoval swept the legs out from underneath the Third Circuit’s decision.93
Sandoval turned a significant amount of persuasive circuit court precedent on its head when it held that private individuals may not sue to enforce disparate-impact regulations.94 Justice Scalia, writing for the 5–4 majority, began with a reiteration of what the previous line of Supreme Court Title VI cases had thus far proclaimed: (1) “[p]rivate individuals may sue to enforce � 601 of Title VI and obtain both injunctive relief and damages”;95 and (2) “� 601 prohibits only intentional discrimination.”96 The Court then went on to note that it had never held that a private right of action existed to enforce disparate-impact regulations.97
Examining the question then as an issue of first impression, the Court first rebutted the argument that just because a private right of action exists to enforce Title VI’s section 601 prohibition against intentional discrimination, then by extension, a private right of action must exist to enforce disparate-impact regulations promulgated under [*PG73]the command of section 602.98 The Court reasoned that it could not make this assumption because “disparate-impact regulations do not simply apply � 601—since they indeed forbid conduct that � 601 permits99—and therefore [it is] clear that the private right of action to enforce � 601 does not include a private right to enforce these regulations.”100 Therefore, the only remaining statutory source from which an implied right of action to enforce disparate-impact regulations could arise would be section 602.101
Turning then to the text and structure of section 602, the Court searched to see whether Congress intended to create a private right of action to enforce section 602.102 The search of section 602 “reveal[ed] no congressional intent to create a private right of action.”103 The implicit reasoning was twofold. First, section 602 contains no “rights creating language.”104 Whereas section 601 speaks directly of the persons it intends to benefit, “[section 602] focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating.”105 Such statutes that are “twice removed” create “no implication of an intent to confer rights on a particular class of persons.”106 Second, the Court found that the administrative methods section 602 provides for enforcing regulations promulgated thereunder manifest a lack of congressional intent to [*PG74]create a private remedy.107 As such, because a regulation cannot create a private right of action not contemplated by its authorizing statute, there exists no private right of action to enforce disparate-impact regulations promulgated under section 602.108
The Court’s unrelated decision in Sandoval implicitly overruled the decision reached five days earlier in South Camden I.109 The heretofore unanswered question had been resolved: private parties cannot bring suit to enforce Title VI disparate-impact regulations.110 Still unresolved, however, was the question of whether a suit could be brought against state actors under � 1983,111 under the theory that failure to abide by federal disparate-impact regulations is a prohibited deprivation of rights secured by federal law. In the afternoon of the day that Sandoval was decided, the South Camden I district judge asked the South Camden Citizens and NJDEP to brief that very question,112 and then ruled in South Camden Citizens in Action v. New Jersey Department of Environmental Protection (South Camden II) that � 1983 did, indeed, provide relief for a violation of EPA’s disparate-impact regulations.113
As an initial matter, the district court reasoned that Sandoval had not foreclosed the possibility of asserting a � 1983 claim for denial of [*PG75]rights secured by EPA’s regulations because Sandoval had not specifically addressed that question or held otherwise.114 The court then went on to explain that in order to determine whether � 1983 was available to remedy a statutory violation, the plaintiff must “assert the violation of a federal right, not merely a violation of federal law.”115 In determining whether federal statutes create individual rights, courts typically apply the three-part analysis articulated in Blessing v. Freestone.116 Here, however, before being able to focus the Blessing test on an agency regulation, the court first had to address the threshold question of whether agencies are even capable of independently creating rights.117 According to the holding in Wright v. City of Roanoke and its progeny, the court reasoned that agencies were indeed capable of creating rights through their rule-making power.118 Turning then to a Blessing analysis of EPA’s section 602 regulations—and treating them as if they were statutes119—the court held that they created a personal right to be free from disparate-impact discrimination.120 Accordingly, NJDEP’s failure to abide by EPA’s disparate-impact regulations created a deprivation of this right, and was therefore actionable under � 1983.121
This victory was short lived, however, as the Third Circuit quickly reversed the district court’s decision and held that Sandoval had implicitly foreclosed the use of � 1983 to enforce EPA’s disparate-impact regulations.122 As an initial matter, the court distinguished Wright as involving a regulation that merely defined the specific right that Congress had already conferred via statute.123 Accordingly, the determination of whether a regulation contains a right enforceable under [*PG76]� 1983 turns upon the question of whether that right had originally been created by statute, not whether the regulation itself creates the right according to a Blessing analysis.124
Using Sandoval as a guide, the court then examined whether section 602 creates a right against disparate-impact discrimination.125 Quoting Sandoval, the court stated, “� 602 limits agencies to ‘effectuat[ing]’ rights already created by � 601.”126 Therefore, the court reasoned that since Sandoval had already determined that the only right conferred by section 601 was a right to be free from intentional discrimination, section 602 did not create an additional right to be free from disparate-impact discrimination.127 “Accordingly,” the court wrote, “if there is to be a privately enforceable right under Title VI to be free from disparate-impact discrimination, Congress, and not an administrative agency . . . must create this right.”128
Even though the Supreme Court has never explicitly addressed whether 40 C.F.R. � 7.35(b) creates an enforceable right under � 1983,129 many commentators have viewed Alexander v. Sandoval and South Camden [*PG77]III as having signaled the end of private Title VI disparate-impact litigation.130
Assuming arguendo that the courts have been closed to private litigants seeking enforcement of EPA’s disparate-impact regulations, there still exist extra-judicial means of leveraging these regulations for the benefit of minority communities. Most clearly, administrative redress through OCR, while ineffective in the past, still remains a potential source of empowerment. For example, former Administrator Christine Todd Whitman has signaled EPA’s renewed commitment to Environmental Justice.131 Time will tell what effect this reaffirmation will have upon the future of the OCR complaint process. In the meantime, scholars have begun to seek alternative and novel applications for EPA’s disparate-impact regulations.132
But before EPA’s section 602 regulations can be useful to anyone in any context, it is necessary to explore in detail the threshold issue ignored by the previous line of cases: whether EPA’s disparate-impact regulations are in and of themselves valid law. In other words, does EPA have the legal authority to terminate a recipient’s funding under 40 C.F.R. � 7.35(b) if that recipient has used “criteria or methods of [*PG78]administering its program which have the effect of subjecting individuals to discrimination”?133
The validity of all administrative agency disparate-impact regulations have heretofore been largely justified on the basis of now questionable readings of Guardians Association v. Civil Service Commission and Alexander v. Choate.134 The Court in Sandoval has dismissed these readings, and implicitly called into doubt whether disparate-impact regulations promulgated pursuant to Title VI are valid exercises of administrative discretion.135 Accordingly, because the validity of disparate-impact regulations can no longer be supported by prior case law,136 all that remains as a means of evaluating their validity is an independent analysis according to basic principles of administrative law. It is to this discussion that we now turn.
Chevron U.S.A. v. Natural Resources Defense Council137 is a watershed case138 that stands for the principal of judicial deference to reasonable administrative interpretations of ambiguous statutes.139 Chevron U.S.A. arose out of a dispute concerning EPA’s definition of the statutory term “stationary source” contained within the Clean Air Act Amendments of 1977.140 The original Clean Air Act (CAA) of 1970 estab[*PG79]lished a cooperative federal-state enforcement framework that remains in effect today.141
In 1977, faced with nonattainment of the National Ambient Air Quality Standards (NAAQS) in several states, Congress passed the Clean Air Act Amendments of 1977.142 Section 172(b)(6)143 of the amendments directed every state to create a State Implementation Plan (SIP) requiring every new “major stationary source” in a nonattainment area to receive a permit for construction and operation that certified the satisfaction of a set of stringent emissions criteria designed to bring the state’s air quality into NAAQS thresholds.144 The source of the controversy, however, was that the statute did not define the meaning of the term “major stationary source” as found in section 172(b)(6).145 Accordingly, in 1981, EPA chose to define the term according to a “bubble concept.”146 The bubble concept treated all pollutant-emitting activities belonging to a single industrial grouping and located on contiguous or adjacent property as a single “stationary source” for purposes of the section 172(b)(6) requirements.147 Under this plant-wide definition of “station[*PG80]ary source,” an existing plant that contained several pollution-emitting devices is able to install or modify one piece of equipment without meeting the permit conditions of section 172(b)(6) so long as such modification does not result in a net increase in overall emissions from the plant.148
The Natural Resources Defense Council (NRDC) challenged149 EPA’s “bubble concept” definition of “stationary source” as contrary to the purpose of the nonattainment program, which was to bring the air quality of nonattainment regions within NAAQS thresholds.150 The Court of Appeals for the District of Columbia agreed with NRDC, first deciding that (1) the statute “does not explicitly define what Congress envisioned as a ‘stationary source . . .’”; and (2) the precise issue was not “squarely addressed in the legislative history.”151 Accordingly, the court of appeals reasoned that “the purposes of the nonattainment program should guide” their decision.152 In the court’s view, this purpose was to improve air quality.153 In light of earlier precedent, the court stated that the bubble concept was appropriate for programs designed to maintain air quality, but was inappropriate for a program designed to improve air quality.154
On review, the Supreme Court laid out the now familiar “Chevron two-step” analysis.155 To properly review an agency’s regulation for validity, the court must ask two questions.156 First, has Congress directly spoken to the precise question at issue?157 If the intent of Congress is clear and unambiguously expressed, the court and agency are required to give it effect, and cannot impose their own construction.158 [*PG81]If, however, a court determines that the statute is “silent or ambiguous with respect to the specific issue”—or stated otherwise, that “Congress has not directly addressed the precise question at issue”—the court may not impose its own construction on the statute as it would in the absence of administrative interpretation.159 Instead, the court must move to the second step of the test and ask whether the agency regulation is a “permissible construction” of the statutory ambiguity.160 If the answer returned is yes, then the court is required to give the regulation deference.161 In deciding what constitutes a “permissible construction,” the court does not have to agree with the construction employed by the agency, or find that the construction was the only one that could have been adopted—the construction need only be reasonable.162
Applying the above test, the Court examined both the language of the statute and the legislative history, and concluded that the statute was silent as to the precise definition of “stationary source” and that Congress had not addressed the precise definition of the term in either floor or committee proceedings.163 Accordingly, the first step of the Chevron test was met: the intent of Congress as to the precise definition of “stationary source” had not been clearly and unambiguously expressed.164 Moving then to the second step of the test, the Court examined the competing policy interests of the Clean Air Act Amendments as identified in the legislative history—economic growth and environmental protection—and reasoned that EPA’s interpretation of “stationary source” was a “permissible construction” in light of the competing policy choices between environmental protection and economic growth.165 As evidence of this fact, the Court noted that EPA’s construction was supported by a reasonable belief that the regulation served both policy interests, pointing to EPA’s rulemaking record, and several private studies contained therein.166 It was in this second step that the [*PG82]court of appeals had erred, by second guessing the wisdom of EPA’s construction, rather than simply examining the reasonableness of EPA’s view that its construction was permissible in the overall context of the Clean Air Act Amendments.167
In determining whether Congress has expressed its clear and unambiguous intent, or if the statute is instead silent or ambiguous with respect to a particular question, Chevron U.S.A. directs that the “traditional tools of statutory interpretation” are to be used.168 An overwhelming number of cases has helped define what these tools are, and how courts use them.169 Four of these cases are included for the purposes of this Note.
In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home),170 the Supreme Court did not explicitly address Chevron step one,171 but did engage in a thorough application of the traditional tools of statutory interpretation that Chevron U.S.A. directs are to be [*PG83]used in step one.172 Sweet Home was concerned with resolving the issue of whether the Secretary of the Interior’s definition of the Endangered Species Act’s (ESA) prohibition of “harm,” as including indirect, unintentional harm resulting from “significant habitat modification,” was within his authority under the ESA.173 In holding that the Secretary’s interpretation of the text was reasonable, the Court relied on three sources of support: (1) the ordinary understanding of the term in question as illustrated by dictionary definitions;174 (2) the underlying purpose of the statute;175 and (3) subsequent legislative action indicating congressional acquiescence to the Secretary’s then-existing interpretation.176 Furthermore, the Court found additional support from the legislative history of the Act for its conclusion that the Secretary’s definition rested on a permissible construction of the ESA.177
An earlier case, MCI Telecommunications Corp. v. American Telephone & Telegraph Co.,178 further explored the use of dictionary definitions in statutory interpretation. The dispute centered on the Communication Act’s phrase “modify any requirement.”179 The Federal Communications Commission interpreted this phrase, relying on a single divergent dictionary definition, as giving it the authority to completely exempt any long-distance carrier from the Communications Act’s tariff requirements.180 The Court reasoned that statutory ambiguity might exist when a selection between widely accepted alternative dictionary meanings can be made.181 Ambiguity is not created, however, in cases where the word in question is defined in a single, uniform manner in several dictionaries, and exists in only one dictionary with multiple alternative meanings.182 In such a situation, absent contrary indications provided by other tools of statutory construction, the meaning of the term is held to be that of universal dictionary usage, and agency deference is not appropriate.183
[*PG84] In Food & Drug Administration v. Brown & Williamson Tobacco,184 the Court elaborated on the third tool of statutory construction used in Sweet Home—namely, subsequent legislative action—to find that Congress did not intend to grant the Food and Drug Administration (FDA) the authority to regulate tobacco products.185 The Court concluded that FDA authority to regulate tobacco would be inconsistent with the overall regulatory scheme established by the Food, Drug, and Cosmetic Act, as well as with subsequent tobacco-specific legislation enacted by Congress.186 The Court relied upon previous cases that had held that, “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.”187 The Court also drew upon a fundamental canon of statutory construction, “that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”188
A set of tools similar to those used in Sweet Home were used in an earlier D.C. Circuit case, also involving environmental regulation. In American Mining Congress v. United States Environmental Protection Agency,189 petitioners argued that EPA’s redefinition of “solid waste,” asserting Resource Conservation and Recovery Act (RCRA) jurisdiction over secondary materials reused within an ongoing industrial production process, was beyond EPA’s statutory authority.190 In reviewing RCRA, the court found that Congress had clearly expressed an intent that the statutory term “solid waste . . . be limited to materials that are ‘discarded’ by virtue of being disposed of, abandoned, or thrown away” and therefore, the challenged regulations were beyond statutory authority.191 The court arrived at this conclusion by utilizing four tools of statutory construction: (1) the language of the statute;192 [*PG85](2) the underlying purposes of the statute;193 (3) other provisions of the statute;194 and (4) the legislative history of the statute.195
It is an almost universal assumption in administrative law that if a regulation passes Chevron step one, then the agency will undoubtedly prevail on step two.196 Step one is where the battle occurs—to date, no Supreme Court decision has invalidated an agency rule on the ground that it fails step two by being an impermissible construction of an ambiguous statute.197
A number of circuit courts, however, have overturned agency rulemakings as violative of step two.198 There are two competing conceptions of the scope of judicial review under step two, and are beyond the discussion of this Note.199 For the limited purposes here, however, it will be assumed that a future court inquiry into the validity of EPA’s disparate-impact regulations will effectively begin and end with the decision that Title VI is ambiguous as to the meaning of “discrimination”—EPA passes step one, or alternatively, that the statute clearly expresses a congressional intent to limit the reach of Title VI to acts of intentional discrimination—EPA fails step one.200
Before undertaking a Chevron201 analysis of EPA’s disparate-impact regulations, the heretofore unrealized necessity of doing so requires elucidation.202 Despite many scholars’ pre-Sandoval assertions to the contrary,203 it is no longer sufficient to rest the validity of Title VI disparate-impact regulations upon dicta announced in Guardians Association v. Civil Service Commission204 and Alexander v. Choate205 given Alexander v. Sandoval’s thinly veiled hostility toward administrative assertions of authority to prohibit disparate impacts under sanction of Title VI.206 [*PG87]On the other side of the argument, it is likewise insufficient to rely upon dicta announced in Regents of the University of California v. Bakke207 as a basis for concluding that Congress had announced its intent to limit Title VI’s reach to acts of intentional discrimination.208
Neither the Supreme Court nor any lower court has directly and conclusively resolved the issue of the validity of section 602 disparate-impact regulations.209 There have been, however, several judicial opinions offered on the issue, most notably in Guardians Association210 and Choate,211 that create the impression that the debate has been firmly resolved.212 Yet in reality, neither the Guardians Association nor Choate Courts actually answered the question of regulatory validity.213 For example, in Guardians Association, five justices, including the lead author of the court’s opinion, Justice White, offered statements that agency regulations may properly forbid disparate-impact discrimination.214 Justice White’s statement, however, that “Title VI [regulations] reach[] unintentional, disparate impact discrimination as well as deliberate racial discrimination”215 was not necessary to his affirmance of the lower court’s denial of compensatory relief.216 Instead, he affirmed the lower court on the independent theory that Title VI can only provide compensatory relief when a showing of intentional dis[*PG88]crimination is made.217 Therefore, Justice White’s opinion on the validity of disparate-impact regulations is capable of characterization as dicta,218 and even if not dicta, arguably does not constitute the holding of the Court.219 Nevertheless, a unanimous opinion in Choate later interpreted Guardians Association as having declared that, “actions having an unjustifiable disparate impact on minorities [can] be redressed through agency regulations designed to implement the purposes of Title VI.”220 This misinterpretation of Guardians Association can also be characterized as dicta, because the strict holding of Choate is limited to the decision that Tennessee’s reduction in annual inpatient Medicaid coverage does not constitute discrimination under section 504 of the Rehabilitation Act of 1973.221 Chester Residents,222 South Camden I,223 and all future courts asked to resolve controversies involving disparate-impact regulations nevertheless accepted this erroneous reading of Guardians Association as a basis for rendering their own opinions.224 But in reality, not a single court to date has in fact been asked to directly address the specific question of the validity of section 602 disparate-impact regulations.225
As further support that the validity issue remains unresolved, Sandoval explicitly declared that the Supreme Court had never decided whether or not disparate-impact regulations promulgated under section 602 were valid.226 But even though Sandoval considered [*PG89]the question open,227 the Court failed to resolve the question. It chose instead to assume the validity of the Department of Transportation’s (DOT) disparate-impact regulations for purposes of deciding the actual issue presented on certiorari: whether an implied right of action existed to enforce DOT’s section 602 regulations.228
Though Sandoval maintained the appearance of leaving the validity question unresolved, in light of the entirety of Title VI jurisprudence from Bakke to Sandoval, it becomes apparent that the Court is extremely suspicious of disparate-impact regulations.229 It is to be expected then that at some point a court will be forced to squarely address the heretofore avoided question of whether disparate-impact regulations are valid exercises of administrative discretion under Title VI.230 The implicit reasoning of Sandoval, however, as foreshadowed by Lambert and explained by Laufer, is unpersuasive and legally insufficient to resolve that question.231
In seeking to summarily invalidate disparate-impact regulations, Thomas Lambert has said that “the question of whether Title VI prohibits only intentional discrimination . . . is not open; the Bakke Court resolved that issue.”232 In Bakke, a five-justice majority stated that, “in view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.”233 Two years before Bakke, the Supreme Court in Washington v. Davis had held that the Fourteenth Amendment prohibits only intentional acts of discrimination, and not those actions merely having a disparate impact.234 Therefore, the ar[*PG90]gument goes, by expressing its intent to limit the scope of Title VI to the Equal Protection Clause, Congress has clearly expressed its intent to limit Title VI to a prohibition of intentional discrimination.235 An agency challenged on its disparate-impact regulations thus fails Chevron step one.236 Carrying the analysis to its conclusion, in such a situation where the “intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”237 Disparate-impact regulations plainly go beyond what is in Lambert’s eyes the “unambiguously expressed intent of Congress” that “Title VI . . . proscribe only those racial classifications that would violate the Equal Protection Clause . . . .”238 and must therefore fail as beyond agency authority.239
This reasoning is unpersuasive for the very same reason that Guardians Association and Choate cannot support the validity of disparate-impact regulations—Bakke only addressed the scope of Title VI as dicta.240 Lambert and the Sandoval Court fail to give weight to the Bakke Court’s own words of caution: “[i]n this Court the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause.”241 Bakke addressed the scope of Title VI only because canons of judicial decision-making dictate that courts should avoid deciding issues according to constitutional interpretation when [*PG91]they can instead rest their decisions upon statutory interpretation.242 The Bakke Court, however, after conducting its review of Title VI, found only that Congress intended Title VI to be coextensive with the Equal Protection Clause, bringing the Court back to where it began, at having to decide the broader constitutional issue of whether Equal Protection demanded the application of strict scrutiny to racial classifications designed for the benefit of insular minorities.243 Such a fruitless digression, moreover, leaves Bakke’s words regarding Title VI sitting at the wayside of the opinion as mere dicta244 because the Bakke majority’s pronouncement as to the scope of Title VI was unnecessary to the Court’s ultimate conclusion that the Equal Protection Clause calls for strict scrutiny of all racial classifications regardless of motive.245 Therefore, although the Bakke Court might have said as much, it never held that Congress intended Title VI to prohibit only intentional discrimination.246 Accordingly, “the rule of Bakke and Guardians Association that section 601 forbids only intentional discrimination”247 appears to have been conjured out of thin air, rather than drawn from sound precedent.
Nevertheless, the same examination of Title VI’s legislative history performed by the Bakke Court will undoubtedly be resurrected by those currently seeking to challenge the validity of disparate-impact regulations.248 The argument would point to Title VI’s legislative history as unambiguously expressing congressional intent that Title VI be coextensive with the Equal Protection Clause.249 Assuming arguendo that the legislative history of Title VI cited by Bakke does indeed establish Congress’s intention to draw Title VI along the Constitutional lines of the Fourteenth Amendment, it is a violation of temporal logic to point to Washington v. Davis as having incorporated the 88th Congress’s conception of the scope of the Fourteenth Amendment, and therefore Title [*PG92]VI. This is for the simple reason that when the Civil Rights Act of 1964 was enacted, Washington v. Davis and the doctrine of intent were still twelve years from existence. In 1964, the Equal Protection Clause was not yet recognized as clearly prohibitive of only intentional discrimination.250 Rather, during the time the Civil Rights Act of 1964 was debated and enacted, the scope of Equal Protection was a fiercely contested and unsettled question.251 Therefore, clear congressional intent to limit Title VI’s scope to a prohibition of intentional discrimination cannot be supported by pointing at scattered references in the legislative history to a then-ambiguous Equal Protection Clause.
Having dismissed the arguments that Guardians Association and Choate establish the validity of disparate-impact regulations, and the counterargument that Bakke indicates clear congressional intent to limit the scope of Title VI to intentional discrimination, we turn now to an independent analysis of EPA’s disparate-impact regulations, using four out of the five tools of statutory construction introduced in the preceding discussion:252 (1) the plain language of Title VI; (2) the legislative history of Title VI; (3) the underlying purpose of Title VI; and (4) subsequent legislative action after the enactment of Title VI. The statutory tool of examining statutory structure, employed in American Mining Congress,253 is implicit in the discussion of legislative history.
The Bakke Court observed that “the concept of ‘discrimination’ . . . is susceptible of varying interpretations.”254 The plain language of Title VI, however, does not express a clear and unambiguous congressional intent to define that inherently ambiguous term according to either an effects standard or an intent standard.255 Examining section 601 specifically, the term “subjected to discrimination,” just as the term “stationary source” in Chevron U.S.A., is left conspicuously undefined.256
Therefore, as in Sweet Home, a court would likely turn to the common dictionary definitions of “discrimination,” “discriminate,” and “discriminating” in an attempt to resolve the ambiguity.257 The Sweet Home Court defined “harm” according to Webster’s Third New International Dictionary as “to cause hurt or damage to: injure.”258 Just as this definition still leaves open the question of whether such injury must be intentional,259 so does the similarly worded definition of “discrimination” leave open the question of intent: “the act, practice, or an instance of discriminating categorically rather than individually.”260 The word “discriminating” is further defined as “making a distinction,”261 which still leaves open the question of motivation or intent. The root word “discriminate” is no less ambiguous, being defined as “to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit.”262 Examining additional dictionaries, as did [*PG94]the Court in MCI Telecommunications, it is found that multiple lexicographers employ similarly ambiguous definitions.263 Contrary to the losing argument in MCI Telecommunications, where only a single source contained a deviant definition of the statutory term in question,264 “discrimination” is universally defined without limitation or restriction to only intentional acts.
In analyzing the definition of “harm,” the Sweet Home Court observed that the dictionary “does not include the word ‘directly’ or suggest in any way that only direct or willful action that leads to injury constitutes ‘harm.’”265 The same reasoning applies to an examination of “discrimination.” The definitions of “discriminate,” and the various forms thereof, do not include the word “intentional,” or in any way suggest that intent is necessary in order to “discriminate” or to be “subjected to discrimination.”266 Accordingly, just as the Sweet Home Court recognized the ability to unintentionally “cause hurt or damage” to an animal by destroying its habitat,267 so must the courts recognize the ability to unintentionally “make a difference in treatment . . . on a class . . . basis in disregard of individual merit,”268 by disregarding the racial compositions and existing environmental burdens of different communities across a state.
Extremely thorough accounts of Title VI’s vast and procedurally complicated legislative history have been recounted elsewhere.269 For our purposes here, however, it will be sufficient to touch upon the overall theme of the debates and compromises surrounding the enactment of Title VI,270 rather than to recite the innumerable individual remarks made in committee and in floor debate. Using the contrary approach, the Bakke Court employed as their sole analytical technique the selective quotation of committee and floor remarks. This method of legislative analysis, particularly as applied to Title VI, has been criticized as having “dubious” value271 because, inter alia, it fails to take account of the complex “dance of legislation”272 that produced the final compromise version.273 This compromise arose from overall congressional acknowledgement of the inherent ambiguity contained in the word “discrimination,”274 and indeed, several individual remarks acknowledge this understanding.275
The meaningful conclusion to be drawn from the legislative history, however, is not that individual members disagreed as to what “discrimination” did, or should have meant, but that because of this very disagreement, Congress intentionally decided to leave the question statutorily unresolved.276 In the words of Chevron U.S.A., they “[did] not directly address[] the precise question at issue.”277 Instead, the legislative history indicates that Congress intentionally placed the resolution [*PG96]of the scope of Title VI in agency hands, to be determined according to the needs of the programs administered by each agency.278
Professor Abernathy presents the following sequence of events: Secretary Celebrezze of the Department of Health, Education, and Welfare (HEW), while under cross-examination by the House Committee on the Judiciary, Subcommittee Number Five, remarked that if HEW determined that the effects of “racial imbalance”279 in a school district created the same problems as de jure segregation, then “steps [would] have to be taken under Title VI.”280 Fear over a lack of rational basis upon which that determination would take place led members of the Committee to suggest that HEW present guidelines explaining exactly how the Department would apply Title VI.281 Presumably in response to these fears over arbitrary administrative interpretation of Title VI enforcement duties, Title VI was subsequently amended in subcommittee to mandate the administrative adoption, and presidential approval, of clear and specific regulations that applied Title VI’s general antidiscrimination clause to specific agency-funded programs.282
At the very least, a general confusion over how the word “discrimination” would be interpreted in practice, the failure of the Subcommittee to reach any consensus, and their unwillingness to firmly resolve the issue through specific statutory language indicate ambiguity and congressional failure to address the precise question at issue.283 At the most, when specific remarks regarding the final version of the bill are considered, it could be argued additionally that Congress specifically intended to leave resolution of the scope of “discrimination” to administrative discretion.284 For example, Attorney General Robert F. Kennedy had stated that the “particular [federal] program, with [the antidiscrimination principle of section 601] as a general criterion to follow, will establish the rules that will be followed in the administration of the program—so that the recipients of the program will understand [*PG97]what they can or cannot do.”285 Even more indicative of a clear congressional intent to avoid the issue and punt to agency discretion is the uncontested House minority report on the final version of the bill, predicting administrative “rel[iance] upon [their] own construction of ‘discrimination’ as including the lack of racial balance.”286 Also, in passing on the House bill, the Senate raised concerns over whether Title VI would permit regulations that corrected “racial imbalance.” Instead of resolving this general question with clear and specific language, the Senate only addressed a narrower issue by prohibiting the use of school busing orders as a means of correcting racial imbalance.287
The underlying purpose behind the enactment of Title VI is less than enlightening in resolving the question of whether Congress addressed the precise scope of prohibited discrimination. American Mining Congress directs that “the sense in which [a term] is used in a statute must be determined by reference to the purpose of the particular legislation.”288 In American Mining Congress, the court reviewed congressional findings of fact to determine that the purpose of RCRA was to eliminate the health risks posed by disposal of solid and hazardous waste when the disposal is done without careful planning and management.289 This narrowly tailored purpose lent guidance to the court as it sought to define the statutory term “discarded.”290 The court reasoned that if Congress had been chiefly interested in eliminating the health risks of dumping, then Congress also clearly intended “discarded” to be confined to its ordinary meanings of “disposed” and “abandoned,” rather than expanded to include in-process materials not destined for a landfill—and therefore not posing a present health risk.291
The situation in Title VI is quite dissimilar because it involves an interesting paradox, illustrated by the Chester Residents court’s elucidation of the statute’s dual purpose: “to: (1) combat discrimination by [*PG98]entities who receive federal funds; and (2) provide citizens with effective protection292 against discrimination.”293 But “discrimination” is the very word whose contours we are interested in defining. The congressional purpose in enacting Title VI contains the exact same ambiguity as the statute itself, and therefore can not aid in our search for congressional intent.294
Legislative enactments subsequent to the Civil Rights Act of 1964 do little to shed light on Congress’s original intent in enacting Title VI, but may arguably indicate congressional ratification of Title VI disparate-impact regulations.295 Crucial to this discussion is the opinion in Brown & Williamson Tobacco where the Court wrote that “[although at] the time a statute is enacted, it may have a range of plausi[*PG99]ble meanings . . . [o]ver time . . . subsequent acts can shape or focus those meanings.”296
This cannon of statutory construction seems particularly applicable to the ambiguity of Title VI, given the apparent breadth of Title VI’s scope. “[T]he implications of a statute may be altered by the implications of a later statute. This is particularly so where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand.”297 In Brown & Williamson Tobacco, the Court was faced with six separate pieces of tobacco-specific legislation enacted since the passage of the Food, Drug, and Cosmetic Act (FDCA).298 Reviewing these pieces of legislation,299 the Court uncovered a persistent stance by FDA that it lacked jurisdiction to regulate tobacco products.300 Accordingly, Congress over the years created a distinct tobacco regulatory scheme separate and apart from FDA.301 What this amounted to then, reasoned the Court, was congressional ratification of FDA’s long held position that it lacked jurisdiction to regulate tobacco.302
An exactly opposite situation is seen in the history of Title VI. Immediately upon the statute’s enactment, a presidential task force, in conjunction with the Department of Justice—which had helped draft the language of Title VI—promulgated model Title VI enforcement regulations barring the use of criteria or methods having a discriminatory impact.303 Every federal agency responsible for administering federal financial assistance—about forty—has subsequently adopted Title VI regulations embracing this effect-based standard.304
This long-held position of the executive branch—that the executive had the authority to prohibit disparate-impact discrimination under Title VI—has been ratified by subsequent antidiscrimination legislation in much the same way the subsequent tobacco legislation of [*PG100]Brown & Williamson Tobacco ratified FDA’s rejection of authority to regulate tobacco.305
Furthermore, an amendment to Title VI made immediately after its enactment may also indicate congressional ratification of Title VI disparate-impact regulations. Two out of the three early and major amendments to the Act merely made modifications to the funding termination procedures that agencies were required to follow, and did not in any way modify or alter section 601 of the original Act.306 The third amendment, however, popularly known as the Stennis Amendment,307 stated Congress’s intention that the provisions of Title VI be applied equally to all states where discrimination in education is concerned.308 In doing so, the Stennis Amendment explicitly mentions de jure and de facto segregation, lending probative value to the argument that the 88th Congress could not have clearly intended to limit Title VI to intentional discrimination.309 If Title VI had prohibited only intentional discrimination, and limited agencies to the same, then the Stennis Amendment would not have stated that “guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 . . . dealing with . . . segregation by race, whether de jure or de facto, in the schools of the local educational agencies of any State shall be applied uniformly in all regions of the United States whatever the origin or cause of such segregation.”310 Rather, the explicit language of the Stennis Amendment indicates congressional acquiescence to Title VI disparate-impact regulations.
Environmental justice is a legal and social paradigm predicated upon the reality that environmental harm is not shared equally among [*PG101]communities, but rather, is disproportionately shouldered by poor, minority neighborhoods. The unequal distribution of environmental harm often occurs through government sanctioned permitting processes. The traditional difficulty in seeking redress for the discriminatory effects of environmental permitting is that environmental decisions are rarely made today with overt discriminatory animus. Rather, it is an economically, politically, and socially entrenched reality that these “blind” decisionmaking processes, left to themselves, will subject poor, minority communities to a disparate share of environmental harm as compared to surrounding affluent, Caucasian neighborhoods. So called “disparate-impact” regulations promulgated by EPA pursuant to Title VI initially showed promise as a legal tool to obtain redress from discriminatory effects. The Alexander v. Sandoval Court closed the door to private enforcement of disparate-impact regulations by taking away those regulations’ implied cause of action and rejecting the existence of a � 1983 enforceable right against disparate-impact discrimination. In so doing, the Court also strongly suggested that disparate-impact regulations, standing alone within EPA’s own administrative enforcement process, were invalid exercises of administrative discretion under Title VI. The Court’s implicit reasoning, based upon Regents of the University of California v. Bakke, is unpersuasive because, contrary to Sandoval’s assertion, Bakke never held that there existed clear congressional intent to limit the scope of Title VI to intentional discrimination. Conversely, the Guardians Association v. Civil Service Commission–Alexander v. Choate line of cases is incapable of standing for the proposition that disparate-impact regulations are valid law. Rather, Chevron U.S.A. v. Natural Resources Defense Council provides the only appropriate means of determining the validity of disparate-impact regulations. After working through a Chevron analysis, it is apparent that the 88th Congress never expressed a clear and unambiguous intent as to the scope of Title VI’s anti-discrimination mandate. Because the 88th Congress did not precisely address whether “discrimination” embodied an intent or effects standard, under the holding of the Court’s opinion in Chevron U.S.A., the judiciary must defer to EPA’s permissibly constructed disparate-impact regulations. 40 C.F.R. 7.35(b) therefore remains valid federal law after Sandoval.