Environmental racism claims brought under Title VI of the Civil Rights Act.

"Longsimmering [sic] resentment in the minority and Native American communities about environmental fairness could soon be one of the most politically explosive environmental issues yet to emerge."

--anonymous Bush administration official in confidential 1992 memo(1)

I. Introduction: What is Environmental Racism? A. Defining Environmental Racism B. Poverty or Prejudice: Addressing the Arguments Against Using Title VI for Environmental Justice 1. Political Clout 2. Market Forces 3. Coming to the Nuisance II. The Disproportionate Environmental Risks Borne by Communities of Color A. Landmark Studies B. The Body of Evidence 1. Workplace Hazards 2. Hazards at Home: Lead Poisoning 3. Hazards in the Community 4. Enforcement of Environmental Laws a. Public Enforcement b. Private Enforcement III. A Brief Review of Environmental Justice Litigation: The Shortcomings of Equal Protection, Environmental Statutes and Common Law as Means of Redress A. Equal Protection Claims: The First Attempts To Establish Environmental Equity As a Civil Right B. Suing Under Environmental Statutes: Pollution Control and Participatory Rights As a Means to Equal Environmental Protection 1. Pollution Control: Citizen Suits To Enforce Emission Standards 2. Participatory Rights: Attacking Environmental Inequities Under NEPA or Its State Counterparts C. Common Law Claims: Property Rights As a Means to Equal Environmental Protection D. The Future of Environmental Justice Litigation IV. Title VI As A Remedy for Environmental Racism A. The Basis for a Title VI Environmental Justice Suit B. Choice of Forum: Litigation or Administrative Action? 1. The Administrative Complaint Process a. EPA's Titte VI Record b. The Clinton Administration's Position c. Evaluating Title VI Administrative Complaints 2. Litigation a. Preliminary Issues: Choosing a Defendant and "Standing" To Sue b. The Merits of a Title VI Case c Evaluating Title VI's Usefulness As a Means of Pursuing Environmental Justice 1. Demonstrating Racial Disparity, Impact, and Alternatives a. Proving Disparity b. Proving Impact c. Least Restrictive Alternatives 2. Title VI Remedies for Environmental Racism 3. Broader Aspects of Title VI's Usefulness V. CONCLUSION

I. INTRODUCTION: WHAT IS ENVIRONMENTAL RACISM?

Like much of America, the Bush administration was slow to acknowledge that scattered protests against environmental injustice had coalesced into "one of the strongest new forces for environmental reform to emerge in many years."(2) Since the early 1980s, environmental justice advocates have been publicizing and protesting the fact that environmental hazards at the workplace, in the home, and in the community are disproportionately visited upon poor people and people of color.3 After more than ten years of grassroots effort, President Clinton's signing of an executive order aimed at promoting environmental equity signals that the movement's concerns have reached the political mainstream.(4) Legally, however, the campaign to promote environmental justice--an effort on the "cutting edge of a new civil rights struggle"(5)--is still very much in its developmental stages.

This Article examines the legal issues surrounding a well-publicized subcategory of the environmental justice movement: the battle against "environmental racism."(6) It examines a number of legal claims available to those struggling against environmental racism, but focuses on actions brought under Title VI of the Civil Rights Act of 1964,(7) Which prohibits discrimination based on race or national origin in federally funded programs and activities.(8) The basic argument is this: The U.S. Environmental Protection Agency (EPA) provides large amounts of federal funds to state environmental agencies. These state agencies, in turn, are the governmental bodies responsible for much of the nation's environmental policy--the enforcement of pollution standards, the permitting of waste treatment and disposal facilities and industrial polluters, and the siting of those facilities. If the actions of those federally-funded state agencies create a racially discriminatory distribution of pollution, then a violation of Title VI has occurred and a civil rights lawsuit is warranted.(9)

Thus far there has been little attempt to evaluate Title VI's applicability and usefulness in the struggle against environmental racism. Most legal scholarship on the topic of environmental racism focuses on the failed attempts to bring suit under the Equal Protection Clause,(10) or under state law.(11) Only a few articles have concentrated on Title VI's application to environmental policy.(12) Those articles have not examined the particular evidentiary demands of a Title VI case in light of the historical problems involved in gathering data or evidence concerning environmental racism, nor do they analyze pending Title VI environmental cases in order to make a preliminary evaluation of the strengths and weaknesses of the Title VI approach.

This dearth of legal scholarship persists at a time when Title VI has become the most important legal issue in the public debate over environmental justice. The President, members of Congress, and leading environmental and civil rights activists have seized upon Title VI as the preferred means to analyze and address the problem of environmental racism.(13) A number of recently filed Title VI actions are currently pending in the federal courts or administrative processes.(14) At the same time, however, enthusiasm for civil rights lawsuits as a means of combatting pollution is far from total. For example, Professor Been represents the views of many skeptics when she postulates that market forces are responsible for the distribution of environmental hazards; as a result, she expresses doubt that "the siting process [for polluting facilities] is `broke' and needs fixing."(15)

This Article argues that Title VI can and should be put to work to achieve environmental justice. A Title VI approach would overcome doctrinal barriers that have frustrated past attempts to apply civil rights laws to the problem of environmental discrimination. It might also serve to ameliorate the "growing pains" within the environmental justice movement created by the traditional lack of cooperation (and even sympathy) between environmentalists and civil rights advocates. It must also be said, however, that the current enthusiasm regarding Title VI's usefulness in pursuing environmental justice is to some extent the product of a lack of information or wishful thinking. To avoid making bad law that would relegate Title VI to the list of failed tactics in the battle against environmental racism, the environmental justice movement must use the doctrine with care. Advocates must make strategic decisions about whether to pursue Title VI claims through the administrative process or in the courtroom. They must work to convince administrative and Article III courts to apply Title VI in light of recent pro-plaintiff changes in civil rights statutes. Most importantly, they must prepare their cases with an eye to the particular difficulties involved in gathering evidence of environmental racism.

This Article provides a road map for such efforts. Part I defines "environmental racism" and discusses the views of those who are skeptical of the environmental justice movement's claims. Part 11 reviews empirical evidence regarding the disproportionate distribution of environmental hazards. Part Ill begins by discussing failed attempts to bring environmental racism claims under the Equal Protection Clause, and then describes the difficulties advocates have faced and continue to confront when employing alternative legal theories on behalf of communities of color fighting pollution. This account of unsuccessful litigation explains why Title VI is now being carried to the forefront of the legal disputes concerning environmental justice. Part [V discusses Title VI itself. It analyzes the statutory, regulatory, and jurisprudential law of Title VI, and compares administrative and judicial avenues of seeking relief under the statute. Finally, this Article examines pending environmental racism cases based on Title VI, and makes a final evaluation of Title VI's usefulness to the environmental justice movement, arguing that Title VI can be an important weapon against environmental racism.

A. Defining Environmental Racism

Benjamin Chavis is credited with coining the term "environmental racism." In March of 1993 he gave this definition to a congressional committee investigating the phenomenon:

Environmental racism is defined as racial discrimination in environmental policy making and the unequal enforcement of environmental laws and regulations. It is the deliberate targeting of people of color communities for toxic waste facilities and the official sanctioning of life-threatening presence of poisons and pollutants in people of color communities.(16) Professor Robert Burard, a sociologist who is the most widely published commentator on the subject, describes environmental racism as:

[A]ny policy, practice, or directive that, intentionally or unintentionally, differentially

impacts or disadvantages individuals, groups, or communities based

on race or color, [as well as the] exclusionary and restrictive practices that

limit participation by people of color in decision-making boards, commissions,

and Staffs.(17) These statements contain two standards for gauging whether certain actions amount to environmental racism. Although Chavis's use of the terms "discrimination" and "unequal enforcement" might indicate a results-based approach to the problem, his condemnation of "deliberate targeting" implies that discriminatory intent is the defining characteristic of environmental racism.(18) In contrast, Bullard explicitly denies the importance of intentional discrimination, and makes unequal results the determinant.

These two standards reappear throughout the literature on environmental justice. In general, those skeptical of the movement's claims or opposed to its demands insist that environmental racism does not exist absent a showing of intentional discrimination.(19) They also deny that environmental decision making is in fact characterized by overt bias.(20) Those sympathetic to the claims and the goals of the movement proffer the effects-based definition of environmental racism,(21) although many in this camp also insist that in many cases the distribution of environmental hazards can only be explained by intentional discrimination.(22)

Those who seek to use the law to fight environmental racism must go beyond the philosophical definition of the term and ask what environmental policies, if any, are illegal. A first principle of anti-discrimination law is that the poor are not a protected group.(23) Thus, absent an impact on racial minorities, legal remedies will be unavailable against environmental policies that disadvantage the poor. Beyond this rule, two legal standards govern environmental racism claims. These standards are analogous to the two opposing points of view in the broader political debate over the meaning of environmental racism. Claims brought under the Equal Protection Clause of the Fourteenth Amendment require a direct or circumstantial showing of intentional racial discrimination.(24) Title VI of the Civil Rights Act, on the other hand, permits lawsuits which rest, as a prima facie matter, on a showing of disparate racial impact.(25) Because this initial showing comports with the more sympathetic "unequal results" definition of environmental racism, advocates for the movement are eager to apply it. Before pursuing that strategy, however, those advocates must address the general objections of critics who are skeptical that disproportionate pollution in communities of color is truly a civil rights issue.

B. Poverty or Prejudice: Addressing the Arguments Against Using Title VI for Environmental Justice

Some critics doubt that a demonstration of disparate impact alone justifies a legal claim of racism. At most, these critics acknowledge that heavy pollution in minority areas results from a lack of political power in communities of color.(26) Generally, they argue that the distribution of pollution can be explained by market forces(27) and that any racial disparity in environmental quality is, therefore, a function of poverty rather than prejudice.(28)

1. Political Clout

Environmental justice advocates agree that the lack of power in minority communities is largely responsible for the current distribution of environmental hazards.(29) But the argument that disparate environmental impact is the result of "political clout" rather than racial malice does not support a conclusion that civil rights concerns are absent. Under constitutional and statutory civil rights law, a dominant racial group acts illegitimately if it uses its majoritarian power to consciously deprive racial minorities of public benefits.(30)

2. Market Forces

A stronger argument against using anti-discrimination law to obtain environmental justice is the "market forces" or "poverty not race" critique. This two-part argument consists of 1) an empirical assertion that the distribution of environmental hazards is best explained by income levels, and 2) an underlying legal argument that activities that disadvantage racial minorities because they are poor is not actionable. The legal test that emerges from this "market forces" critique has been concisely described by Professor Vicki Been:

Because discrimination against the poor is not unconstitutional, whereas discrimination

against people of color is, a claim of racial discrimination might

need to separate out the disparate effect that a siting process has upon people

of color because of their race from the effect it has upon people of color because

of their poverty.(31)

Both the factual and the legal components of the "market forces" argument, however, are flawed. As part II of this article explains, the existing evidence generally shows that race is a better indicator than poverty of the location of environmental threats.(32) One cause of this disparity, as Professor Been herself notes, is that "[r]acial discrimination in the sale and rental of housing relegates people of color (especially African-Americans) to the least desirable neighborhoods, regardless of their income level."(33) Second, the legal premise contained in the market forces claim, that discrimination against blacks because they are poor is not actionable, is similarly incorrect. If the market forces standard were accurate, a regression analysis determining the independence of race and income would be a routine element of every Title VI case, whether it concerned the discriminatory provision of medical services, housing, or education. This is not, however, how Title VI functions. In the rare Title VI case where defendants have even raised such an issue, it has been rejected by the courts:

[I]n the United States, both now and at the time Title VI was passed, poverty

and minority status were deemed so closely correlated as to be almost indistinguishable.

Thus actions adversely impacting the poor will almost invariably adversely

impact upon minority groups. The fact that the disparate impact is

caused by socio-economic differences between the races rather than genetic

ones is irrelevant.(34)

A final version of the market forces argument might attempt to portray disproportionate pollution in communities of color as something that occurs "naturally," and is therefore beyond the purview of civil rights law. For example, with racial segregation in schools, "[r]acial imbalance . . . amounts to a constitutional violation only if it results from some form of state action, and not from factors, such as residential housing patterns, which are beyond the control of state officials."(35) Similarly, a Title VI plaintiff "cannot make out a prima facie disparate impact claim if the evidence tends to show that even had the defendant, not engaged in the challenged practice, the same disparate impact would nonetheless have existed."(36) A critic applying these principles to the field of environmental justice might attempt to argue that polluters rationally choose to locate on cheap property, and that the resulting disproportionate pollution of minority communities is as legally unobjectionable as a "naturally occurring" all-minority school.

An immediately apparent problem with the "naturally occurring pollution" argument is that it ignores the role that discrimination plays in residential housing patterns.(37) There is a more serious flaw in the argument, however. Even in the critics' own account of how the world works, the distribution of pollution is underdably facilitated by state action, in the form of permitting and siting decisions by the appropriate environmental regulatory agency. The "proximate cause" of the facility's arrival in a community of color can thus accurately be said to be the governmental permitting action. Consequently, the above-quoted legal principles concerning school desegregation do not apply in the environmental justice context. A more detailed discussion of the legal standards which apply to such challenges is discussed later, but here it is enough to point out that the basic arguments of the market forces critics fail to present a barrier to environmental racism claims.

3. "Coming to the Nuisance"

Professor Been's recent article(38) presents a more interesting challenge to those who would apply civil rights law to remedy severe pollution in minority neighborhoods. Professor Been postulates that market factors in combination with housing discrimination might lead minorities to "come to the nuisance": they seek jobs and affordable housing; they lack transportation and are hemmed in by segregation; and therefore they cannot choose to be suburban commuters.(39)

Professor Been's hypothesis yields both principled and pragmatic objections to the use of civil rights law to attack the status quo distribution of environmentally hazardous locally unwanted land uses (LULUs). A "principled" objection is that, even under a statute prohibiting disparate racial impact, communities of color that presently host disproportionate environmental risks have no legal claim, since as latecomers to the area they were not disparately affected by the facility siting.(40) Second, as a practical matter, any effort to "fix" the siting process and make it more "fair" will be fruitless.(41) Attempts to create equitable distributions of enviromental hazards would eventually be undone by market forces.42

But Professor Been's article does not make out a general case against the use of civil rights law to attempt to alter the distribution of environmental hazards. First, her argument is relatively narrow in scope: it applies ordy to "attractive nuisances" such as LULUs; thus, even if correct, Professor Been's arguments do not pertain to challenges to the discriminatory administration of environmental or public health programs--issues that are discussed below.43 Second, even with regard to LULUs, Professor Been's criticism presents no obstacle to existing communities of color that are fighting the intrusion of a polluting facility--several examples of which are discussed below.44 In these situations, the "nuisance is coming" to a community of color, and by her own account, Professor Been's argument has no implications regarding the merits of a disparate impact claim.(45)

Professor Been's "pragmatic" argument has several shortcomings as well. The claim that the market will eventually undo the benefits of a more equitable distribution of LULUs(46) overlooks the utility of such redistribution to residents of already polluted communities. Each additional facility in a community compounds the residents' exposure to environmental risks. Therefore, regardless of a LULU's power to "attract" minorities, the current and future residents of an area that successfully avoids its siting will benefit from its absence.

Of course, those who possess the ability to avoid pollution may blanch at the thought of polluting LULUs spread throughout the land; it may seem preferable to concentrate them in a small number of industrial zones rather than subject everyone to a little pollution. But this sentiment reveals another flaw in Professor Been's pragmatic argument: she improperly assumes that if a community of color avoids the intrusion of an environmental hazard, the nuisance will simply be sited elsewhere, afflicting another community or a "green site," and eventually attracting a new group of minority neighbors. In fact, potential sites outside communities of color may be home to residents whose political opposition will significantly raise a project's cost and perhaps lead to its cancellation. In other words, there may be some environmentally hazardous activities that the market considers 'profitable' only if they call be sited with little political Cost.(47) In these situations, efforts to remove from the siting process what Been terms "unfairness" will have beneficial effects.

In sum, Professor Been presents a scenario that, in those narrow instances where it applies, could create problems for environmental justice plaintiffs. But many advocates will be attacking either Non-LULU hazards or currently encroaching LULUs. Furthemore, the "market forces' critique misconstrues the utility and practical effect of making changes to siting regimes. For these reasons, Professor Been's article presents no general normative or practical challenge to the use of Title VI litigation to influence environmental policy making.

II. THE DISPROPORTIONATE ENVIRONMENTAL RISKS BORNE BY COMMUNITIES OF COLOR

A. The Landmark Studies

In 1982, police arrested more than 400 American-Americans participating in a civil disobedience campaign directed against efforts to site a PCB disposal facility outside a mainly black community in Warren County, North Carolina.48 The Warren County campaign was the first time that mainstream civil rights groups focused national attention on an environmental issue. The campaign included an attempt by the NAACP to stop the facility with an Equal Protection suit;49 it also led to a pair of landmark studies which gave credibility and momentum to the environmental justice movement.

One of those arrested in Warren County was Walter Fauntroy, the District of Columbia's delegate to the U.S. House of Representatives. Rep. Fauntroy requested that the General Accounting Office (GAO) examine hazardous waste landfill siting and its effect on African-American communities. The GAO's analysis(50) of the communities near four hazardous waste landfills in the Southeast (EPA's Region IV) found that African-Americans constituted between 52% and 90% of the population in three of the studied communities; the fourth facility was sited in a rural area that was 380/o African-American, but the population within a four-mile radius was between 69% and 92% African-American; aH of the communities were disproportionately poor, with below-poverty-line populations of 26% to 42%.(51)

Also arrested in the Warren County campaign was Dr. Benjamin Chavis, then the head of the United Church of Christ's Commission on Racial Justice (CRJ). Several years later the CRJ published the first national study analyzing the demographics of communities that hosted hazardous waste facilities.52 Using an EPA database and census data, the study compared the demographic makeup of the zip code areas that contained the 415 known commercial hazardous waste facilities to that of zip code areas without such facilities. The study found that the poor of all races were more likely to live near hazardous waste facilities than middle or upper class groups. It also found that communities with two or more hazardous waste facilities had three times the number of minorities as communities without such facilities. More significantly, the CRJ analysis used regression analysis to control for the effects of poverty and concluded that "race was consistently a more prominent factor in the location of commercial hazardous waste facilities than any other factor examined."(53)

B. The Body of Evidence

A significant body of evidence supports the contention that in most aspects of human activity--at the workplace, in the home, and in the larger community--people of color face more environmental risks than whites. Furthermore, evidence shows that race plays an even more significant role than poverty in determining the distribution of environmental hazards.54 This subsection examines the evidence regarding disparate racial impact, pointing out those few areas that are empirically well developed and those areas where more data is needed.

1. Workplace Hazards

Perhaps the most dramatic environmental problem people of color face at work is pesticide exposure among agricultural workers. "Ninety percent of the approximately two million hired farm workers in the U.S. are ethnic minorities. Latinos of Mexican origin comprise the largest group (75 percent of the agricutural workforce), followed by black North Americans ...."(55) Migrant workers also do some of the country's most dangerous work, suffering a high rate of job-related death and the highest incidence of toxic poisoning of any occupational group. One estimate calculates as many as 313,000 pesticide-related illnesses each year.56

While pesticide exposure is the most extreme example, occupational safety studies demonstrate that people of color are in general "concentrated in low-paying, high-risk blue collar occupations--jobs that have health-threatening environments and a ready supply of 'replacement labor.'"(57) Typical is an early 1970s study showing that "African-American men have a 27% greater chance than whites of facing safety hazards and a 600% greater chance of facing health hazards in the workplace."(58) Such general conclusions have been buttressed by case studies of minority workers in specific industries such as rubber making,(59) coke production, (60) battery manufacturing, lead plating and smelting,(61) and industrial laundrying.(62)

More current research bears out the results of these 1970s studies. For instance, a recent analysis found that Latino men suffer more than twice the risk of work-related illness or injury as white men, and that black men suffer a forty-one percent greater risk than white men.(63) Moreover, there is some evidence that this disparity exists independent from the level of skills blacks bring to the labor market. A 1984 study found that African-American workers with the same level of job training and education as whites on average nevertheless find themselves in substantially more dangerous occupations.(64)

2. Hazards at Home: Lead Poisoning

In an analysis of whether race-based incidents of disparate environmental impact have been documented, a recent EPA report noted the "unambiguous" case of lead poisoning.(65) Examining a 1988 study by the Centers for Disease Control,(66) the EPA report said that lead levels in the blood of urban African-American children under the age of five greatly exceed the levels found in similarly-aged white children living in the same cities. Significantly, this disparity persisted at various income levels. Thus for families with incomes less than $6000, 680/o of black children and 360/o of white children had unsafe blood levels. In families earning more than $15,000, 38% of black children and 12% of white children had excess levels of lead. 67 In a field where empirical studies have traditionally failed to disaggregate the effects of race and income, these lead studies provide important evidence that race exerts an independent effect on the distribution of environmental hazards.

3. Hazards in the Community

A number of recent findings by federal agencies support the conclusion that the CRJ reached in its national study: that the siting of hazardous waste facilities affects communities of color more than white neighborhoods. In September of 1993 an advisory committee to the U.S. Commission on Civil Rights found that "black communities located along the industrial corridor between Baton Rouge and New Orleans are disproportionately impacted by the present State and local government systems for permitting and expansion of hazardous waste and chemical facilities."(68) Also, a September 23, 1993 letter to the EPA requested an EPA investigation of Mississippi's facility permitting program. The acting staff director of the U.S. Civil Rights Commission, Bobby Doctor, stated that "although the state's siting criteria are facially neutral, they have the effect of discriminating against poor and predominantly African American communities."(69) Several months later, the main author of a controversial report released by the EPA (discussing toxic emissions, census data, and potential health effects for an area near Chattanooga, Tennessee) stated that "[t]he greatest amount of TRI chemicals and the most toxic of the TRI chemicals are being released in communities that are least able to cope with them . . . 'non-white, low-income, undereducated.'70

These government corroborations of environmental disparate impact add to other studies documenting the unequal distribution of risks in Texas, Louisiana, New Jersey, St. Louis, Los Angeles, and Richmond, California as well as on a national level.(72) A final pair of studies share the CRJ study's approach of isolating the effects of race and income in analyzing disparate environmental impact; they also found that race was a better predictor than poverty of the distribution of environmental hazards. The first study examined facility siting and established that, after controlling for the effects of different income levels, people of color living in the tricounty Detroit area still had a four times greater chance of living within a mile of a hazardous waste facility than did whites.(73) The second study examined whether Michigan's regulations governing the discharge of pollutants to surface waters protected fishermen who ate what they caught.74 It found that while these pollution standards generally protected whites, they were insufficient to prevent minorities from ingesting unsafe levels of toxics, and that this failure occurred independent of any income effect.(75)

4. Enforcement of Environmental Laws

U.S. environmental statutes are enforced through a combination of government (federal and state)(76) and private efforts. But neither public nor private enforeement have provided commurdties of color with the ftffl benefits of environmental law.

a. Public Enforcement

A 1992 study by the National Law Journal concluded that federal environmental enforcement is more vigorous in white communities than in communities of color.(77) The authors of the study reviewed every civil enforcement lawsuit concluded between 1985 and 1991 and examined the pace of cleanup at all the toxic waste sites in EPA's Superfund program that were near residential areas. The report concluded 1) that RCRA fines were 506% higher in white areas than in minority areas,(78) 2) that the average of all enforcement fines was 46% higher in white areas than in minority areas,(79) (3) that while Superfund penalties were 9% higher in minority than in white communities, the former communities waited an average of 20% longer to have a site placed on the National Priority List (NPL),(80) and (4) that while in white areas 'treatment" of the waste at contanimated sites was chosen 22% more often than its mere containment, in minority areas the opposite was true--containment was chosen 7% more frequently than treatment.81

b. Private Enforcement

The majority of American environmental statutes contain provisions authorizing private lawsuits to enforce their provisions. The Clean Water Act (CWA), Clean Air Act (CAA), RCRA, and CERCLA allow any person to act as a "private attorney general," and file suit for civil damages, the proceeds of which go to the federal treasury.(82) Private citizens can also sue under NEPA to ensure that government actors follow deliberative and participatory steps before taking action that will "signiticantly affect" the human environment.83 Under these provisions, environmental groups have obtained millions of dollars in penalties under the pollution statutes,(84) and used NEPA to influence government action.85 This private enforcement system has traditionally failed to function well in minority communities, however, because of a lack of cooperation, and even hostility, between social justice or civil rights groups and environmental litigators.(86) Thus, while instances of collaboration between mainstream environmental and civil rights or grassroots groups do exist and are increasing,(87) Minority communities have not been the traditional beneficiaries of enforcement brought through citizen suits.

III. A BRIEF REVIEW OF ENVIROMENTAL JUSTICE LITIGATION: THE SHORTCOMINGS OF EQUAL, PROTECTION ENVIRONMENTAL STATUES, AND COMMON LAW AS MEANS OF REDRESS

Having reviewed the exidence that communities of color bear a disproportionate share of society's environmental risks, I will now examine those communities' attempts to use the courts to obtain environmental justice.

The first reaction of communities opposed to environmental injustices has been to organize and demonstrate. By the late 1980s hundreds of grassroots groups had formed to focus on local issues of facility siting, hazardous waste cleanup, highway construction, and lead and pesticide poisoning.(88) In addition to this direct political action, lawyers have filed a number of suits on behalf of environmentally besieged communities. These suits used common law, environmental law, and civil rights claims, often combining two or more types of claims. This section briefly reviews the history of this litigation and why it has met with little success. It then discusses why Title VI is an attractive alternative to the methods that have failed so far.

A. Equal Protection Claims: The Firstn Attemps To Establish Environmental Equity As a Civil Right

Equal Protection litigation is controlled by two seminal Supreme Court decisions: Washington v. Davis(89) of Arlington Heights v. Metropolitan Housing Development Corporation.(90) In Davis, the Court first held that plaintiffs must show discrinatory intent as a necessary element of an Equal Protection case.(91) In Arlington Heights, the Court extended that strict standard from the employment context to land use decisions.(92) The Court allowed discriminatory intent to be proved through circumstantial evidence, and set out five categories of evidence that would be relevant in that regard.(93)

The scrutiny by lower courts of such circumstantial evidence is generally demanding, and as a result no environmental justice plaintiffs have yet satisfied their burden of proof. Some advocates bringing Equal Protection environmental racism claims have also failed to convince the courts of the lesser showing of disparate impact.(94) Even where environmental impact was starkly disproportionate along racial lines,(95) claims have been unsuccessful.

The reluctance of courts to provide remedies for Equal Protection environmental justice claims stands in marked contrast to a series of municipal services cases decided in the Eleventh Circuit in the mid-1980s.(96) There courts held that an Equal Protection violation had been proved where the knowing deprivation of water hookups, street paving, and storm-sewer capacity caused foreseeable disadvantage in minority neighborhoods.(97) Despite the conceptual similarity between these Equal Protection claims and those complaining of environmental racism,(98) many commentators agree that these cases hold out little hope for future Fourteenth Amendment claims.(99) Absent a "smoking gun" which reveals intentional discrimination, the difficult burden of proof imposed by Davis and Arlington Heights seems likely to continue to frustrate plaintiffs seeking an Equal Protection remedy for environmental racism.

B. Suing Under Environmental Statutes: Pollution Control and Participatory Rights As a Means to Equal Environmental Protection

When mainstream environmental groups have cooperated with civil rights advocates and the environmental justice movement, environmental law itself has been used to combat environmental racism. Such lawsuits will doubtless increase with additional cooperation, and they serve a double purpose: while giving communities a valuable resource with which to compel compliance with the law, the resulting collaboration might also serve to broaden and strengthen the environmental justice movement. Because of the current structure of environmental law, however, conventional environmental lawsuits will often be anable to address the movement's most basic complaint--that our society is characterized by a fundamental, race-based maldistribution of environmental risks.

1. Pollution Control: Citizen Suits To Enforce Emission Standards

The environmental justice movement is now using the citizen suit provisions of various pollution control laws explicitly as a weapon against environmental racism.(100) To the extent that such laws are unenforced or underenforced in minority communities,(101) this private enforcement is valuable. Nevertheless, discharging is legal under federal law if done pursuant to a valid permit.(102) For communities where polluting facilities are concentrated heavily, suits to enforce discharge limits cannot therefore bring about a more equitable distribution of environmental risks.(103)

2. Participatory Rights: Attacking Environmental Inequities Under NEPA or Its State Counterparts

The second shortcoming of environmental lawsuits as a means of attaining environmental justice is that these statutes contain no substantive standards for the siting of environmental hazards.(104) Environmental justice advocates see this lack of standards regarding where hazardous waste will be concentrated as an opportunity for the exercise of discrimination:

When middle-class neighborhoods say NIMBY (Not in My Backyard) and

use environmental laws to defeat locally unwanted land uses (LULUs), such as

toxic waste dumps or polluting industry, the developers usually go to a different

neighborhood, where opposition is less organized and powerful.... Based

on their studies of the Southern U.S., sociologists Robert Bullard and Beverly

Wright have called public officials' and developers' response to NIMBY the

"PIBBY principle"--"Place in Blacks' Back yard."(105) Thus, Say Many in the environmental justice movement, "[i]t is because the law works for white middle-class communities that it does not work for the poor, or for people of color."(106)

The statute most applicable to siting challenges is the National Environmental Policy Act (NEPA),(107) or state analogues, which minority plaintiffs have called upon in a number of cases to oppose land uses that pose environmental risks.(108) Because NEPA's requirements are solely procedural, however, victorious plaintiffs can win only an order directing the defendant to repeat the decision making process correctly before taking action.(109) The advantage of a NEPA suit is that it can buy time for the plaintiffs, and might also provide an opportunity to galvanize the community to political opposition.(110) In some cases, this delay, either alone or in combination with political pressure, may be sufficient to achieve a substantive victory. But polluters may target minority communities for unwanted land uses because, in comparison with more politically active and powerful affluent communities, minority communities have traditionally mounted less opposition.(111) Thus, in the final analysis, for those who lack the power to implement substantive political decisions, NEPA's procedural remedies may provide a reprieve rather than a remedy: the decision-making body might simply reiterate the process, and then site the facility.

C. Common Law Claims: Property Rights As a Means to Equal Environmental Protection

A number of those skeptical about the claims of the environmental justice movement have suggested that if communities are suffering harm from the pollution of neighboring industry or hazardous waste facilities, they should vindicate their property rights under common law. The environmental justice claims brought under common law or codified tort law, however, do not suggest that this is a viable means of remediating the maldistribution of environmental hazards.

In the environmental justice context, common law suits may be useful,(112) but they possess a common set of disadvantages. The first "arise[s] from the plaintiff's burden to establish intentional or unreasonable conduct as the basis for liability."(113) In other words, if an encroaching facility possesses the requisite environmental permits, then its location and discharge of pollution may not provide grounds for a suit.(114) Second, proving causation in a personal injury suit is difficult because of the lack of available data on the health effects of toxins.(115) Even where the merits of a case are susceptible to proof, procedural obstacles may bar recovery.(116) Plaintiffs in such suits are thus often left with inadequate surrogates such as decreased property value for which to seek compensation.(117) These barriers to proving injury and damages become additionally troublesome in light of tort reform legislation pending in the 104th Congress, which would limit punitive damages to treble damages or $250,000, whichever is higher.(118) Another remedies problem is the difficulty in obtaining equitable relief: damages are the more common remedy for prevailing plaintiffs.(119) Finally, common law suits may frustrate communities' efforts to address their problems as a group. Because the focus of such suits is usually on the plaintiffs individual rights to property or bodily integrity,(120) energy and resources devoted in this direction may shortchange community-based action. Philosophically, this runs counter to the natural and appropriate thrust of the environmental justice movement thus far, which has been communities' concerted efforts to address pollution that has been imposed on them as a discernable minority group.

D. The Future of Environmental Justice Litigation

This unsuccessful litigation record has produced various reactions from observers and advocates. While most have given up on Equal Protection claims, some remain undaunted: for instance, in 1992 a mostly Latino community group in West Dallas, Texas filed an Equal Protection suit against the EPA in an attempt to force the cleanup of lead pollution in their neighborhood.(121) Others see environmental law claims as a litigant's best hope, despite the problems set out above.(122) Still others have largely given up on litigation as the primary mechanism for achieving environmental justice; they fix their hopes instead either on legislative reform(123) or political action.(124) From amid these contradictory responses, however, a consensus is emerging regarding the importance and applicability of Title VI.(125)

Nevertheless, there has been virtually no examination of how Title VI suits would proceed in the environmental context, or of whether they will prove a truly effective legal tool. For the most part, this deficit simply reflects the fact that applying Title VI to environmental policy is a very recent phenomenon. I now turn to an examination of Title VI: what it says, how it is applied in courts and administrative agencies, and how it has formed the basis of several pending environmental racism claims.

IV. TITLE VI As A REMEDY FOR ENVIRONMENTAL RACISM

Some accounts of Title VI environmental claims include the vague notion that Title VI prohibits racially unequal results in federally funded programs; the implication is that any plaintiff who can demonstrate disparate racial impact will prevail(126) As this Section explains, this view is overly optimistic. Nevertheless, while it is not the "magic bullet" that some commentators make it out to be, Title VI can be a potent weapon for the environmental justice movement, both in its basic legal application, and in its aptness as a tool for building and broadening the movement.

A. The Basis for a Title VI Environmental Justice Suit

Title VI provides: "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."(127) Title VI also directs each federal agency that is empowered to extend federal assistance to promulgate regulations implementing the statute's objectives.

EPA administers a number of financial assistance programs created by federal environmental law,(128) For example, EPA provides the majority of the funding for marty states' hazardous waste enforcement programs; nearly $930,000 of Mississippi's $1.6 million annual hazardous waste enforcement budget comes from EPA.(129) All actions taken by EPA's funding recipients are subject to the anti-discriminatory requirements of Title VI.

Title VI also requires each federal agency that disburses funds to promulgate regulations implementing the statute's objectives. EPA's regulations implementing Title VI state, in relevant part:

(b) A recipient shall not use criteria or methods of administering its program

which have the effect of subjecting individuals to discrimination because of

their race, color, [or] national origin ....

(c) A recipient shall not choose a site or location of a facility that has the

purpose or effect of excluding individuals from, denying them the benefits of,

or subjecting them to discrimination under any program to which this part applies ...

or with the purpose or effect of defeating or substantially impairing

the accomplishment of the objectives of this subpart.(130) The regulations also provide that

In administering a program or activity receiving Federal financial assistance in

which the recipient has previously discriminated on the basis of race, color,

sex, or national origin, the recipient shall take affirmative action to provide

remedies to those who have been injured by the discrimination.(131) Pursuant to Department of Justice regulations regarding the implementation of Title VI requirements,(132) EPA has also promulgated regulations regarding its procedures for monitoring a recipient's pre- and post-award compliance,(133) as well as for investigating complaints, which may be filed by any person who believes she has been discriminated against in violation of the regulations.(134) Finally, the regulations set out those actions that EPA may take against recipients to compel compliance with Title VI; these include refusing to award or continue assistance, and referring of the matter to the Department of Justice.(135)

B. Choice of Forum: Litigation or Administrative Action?

Title VI complaints can be initiated either through the administrative process described below(136) or in federal court. Since the courts do not require that plaintiffs exhaust their administrative remedies before filing suit,(137) the first step for an environmental justice advocate seeking Title VI relief is to compare prospects for success under administrative action and litigation.

1. The Administrative Complaint Process

a. EPA's Title VI Record

As James Q. Wilson, perhaps the nation's pre-eminent scholar of bureaucracy, explains, "[a]n agency with a mission will give perfunctory attention, if any at all, to tasks that are not central to that mission."(138) EPA's first experience with Title VI involved the provision of sewage treatment services under the Clean Water Act,(139) and it is an example of the phenomenon that Wilson describes.

In the early 1970s, the Clean Water Act gave EPA a statutory mandate to stem the flow of untreated municipal sewage.(140) The Act established a program of federal grants, which triggered mandatory state contributions, for the construction of sewage treatment facilities.(141) Despite Title VI's commands, EPA pursued its anti-pollution goals without regard to substantiated complaints that minority communities were being excluded from the benefits of the newly constructed facilities.(142) From EPA's perspective, an irreconcilable conflict existed between its task and the demands of Title VI, because the agency could discipline discriminatory recipients of funding only by terminating their grants and deferring the existing pollution problem.(143)

This conflict set the tone for EPA's attitude toward Title VI, which until recently has been relegated to an almost nonexistent role the in the agency's agenda. In 1975, the agency's Office of Civil Rights (OCR) stated that "[the U.S. Civil Rights Commission's critical] report should give more recognition to the fact that EPA is essentially a pollution abatement agency and, as such, is to be distinguished from an agency principally concerned with community development."(144) In 1990, the chair of an EPA taskforce, who was assigned to study the issue of environmental justice, exhibited a similar skepticism about coupling civil rights with environmental enforcement: "Surprise, surprise: We have these facilities near poor people. Look back 500 years and you'll find the same thing."(145) EPA's record with regard to Title VI was so lackluster that when the environmental justice movement began to gain prominence, some confusion existed in Congress over whether EPA was even subject to Title VI.(146)

b. The Clinton Administration's Position

In a marked change from the traditional EPA perspective, the new administration has shown general receptiveness to the claims of the justice movement and unprecedented willingness to begin serious enforcement of EPA's Title VI responsibilities.

While few activists are satisfied with the pace of change, the government's policy is beginning to take effect at many levels. Examples include an executive order requiring all agencies to establish a mechanism to monitor and ensure compliance with Title VI whenever its programs have environmental consequences;(147) programs that gather data about environmental racism;(148) enforcement activity, such as EPA's investigations of the racial impacts of statutory schemes that govern the siting of polluting facilities;(149) and continuing rhetorical encouragement and recognition that serves to legitimize the environmental justice movement and alert industry to the importance of the issue.(150)

The Clinton administration's position on the environmental justice issue has not yet yielded great results, but two types of change can be seen. First, the administration increased political pressure on local siting authorities with an unprecedented commitment of federal investigative resources for examining specific claims of environmental racism.151 Second, the policy paves the way for increased private enforcement of Title VI, both by creating an atmosphere that is sympathetic to such challenges to the status quo distribution of environmental risks, and by instituting programs that will put more information in the hands of advocates.

c. Evaluating Title VI Administrative Complaints

The administrative process may be used to good effect in an activist adminstration. Because courts often defer to agencies' adjudicatory factfinding, relief at the agency level under a sympathetic administration might be more easily obtained(152) than a favorable decision from the federal judiciary, which has become more conservative under Presidents Reagan and Bush.(153)

However, as the Supreme Court noted when granting an implied right of action under Title VI, a complainant has no formal means of participation in the administrative process.(154) Moreover, under EPA regulations, the only penalty the Agency may impose against a discriminatory grantee is the termination of that grantee's funding.(155) These drawbacks may lead advocates to take their complaints to federal court.

2. Litigation

The current enthusiasm for the use of Title VI in the environmental justice context results from the combination of environmental justice advocates' unsuccessful experiences with the Equal Protection Clause,(156) which requires proof of discriminatory intent, and the recognition that Title VI requires only disparate impact--a lesser showing. This enthusiasm often overshadows the underlying reality of a plaintiffs evidentiary burden in a Title VI suit. In fact, the application of Title VI is fraught with more difficulties than many commentators acknowledge.

The most important legal elements in determining whether Title VI will be an effective litigation tool for the environmental justice movement are the modifications made to the Civil Rights Act in the Civil Rights Restoration Act of 1987 and the Civil Rights Act of 1991.(157) Title VI jurisprudence has not yet properly responded to these legislative changes and, as a result, environmental racism plaintiffs may face stricter standing requirements and burdens of proof than should be the case. The usefulness of Title VI will depend on whether civil rights advocates can win recognition of these changes in the law; it will also depend on whether environmental justice advocates can carefully marshal their evidence to meet the particular standards of a Title VI case.

a. Preliminary Issues: Choosing a Defendant and Standing" To Sue

In general, two types of suits can be filed under Title VI: suit against the recipient of federal funds, or a suit against the funding agency itself. The first type of suit is much easier to undertake because courts' interpretations of Title VI and the Administrative Procedure Act (APA) have limited the availability of actions against funding agencies.(158) An advocate's first question should therefore be: Can we gain relief by suing the discriminatory recipient of funding? Fortunately, the answer will almost always be yes, when the recipient is a state department of natural resources that implements a RCRA, CWA, or CAA enforcement program.

The other preliminary issue is commonly termed a question of "standing" to sue under Title VI, though in fact it is actually simply a question of interpreting the breadth of the statute's prohibition on discrimination. In Laramore v. Illinois Sports Facilities Authority, 159 a mostly African-American coalition of community groups filed suit to prevent damage to their neighborhood that was about to result from the construction of a new baseball stadium for the Chicago White Sox. The court dismissed the claim on the ground that the plaintiffs were not the "intended beneficiaries" of the federal funds at issue,(160) and that they therefore "lacked standing" to bring the claim.(161) Environmental justice advocates should be aware of the problems posed by this "intended beneficiary doctrine" (IBD), and of the ways to surmount this barrier.(162)

It is unfortunate that this issue merits discussion, because an analysis of the Civil Rights Restoration Act of 1987(163) (1987 Act) indicates that the IBD, which was applied in several 1980s opinions,(164) has been abolished. The 1987 Act changed the law underlying Grove City College v. Bell,(165) a Supreme Court decision that applied the IBD to Title IX of the Civil Rights Act.(166) Grove City held that federal funds received by a subunit of an educational institution did not subject the entire institution to the non-discriminatory demands of the statute.(167) Since courts faced with a Title IX or Title VI case look to one statute's precedents when interpreting the other, Grove City applied to Title VI jurisprudence as well.(168)

The 1987 Act did away with Grove City's restriction by broadly defining the extent to which a program or activity's receipt of federal assistance triggers Title VI's prohibition of discrimination. The 1987 Act expanded the ban on discrimination on an "institution-wide" basis(169) to "all of the operations"(170) of the recipient entity. As one commentator notes:

Consideration of the statute's inherent logic reveals the incompatibility of the

Restoration Act with the IBD. The purpose of the Act was to broaden the applicability

of Title VI's non-discriniination duty to include subunits of federally

funded institutions that do not themselves receive federal aid. Since these

subunits are not federally funded, participants in their activities are by definition

not the intended beneficiaries of the federal aid at issue. The mission of

the Restoration Act was therefore to extend Title VI's protections to persons

not qualifying as intended beneficiaries.(171)

Despite the changes worked by the 1987 Act, however, some courts continue to look to 1980s case law, and apply the IBD to deny "standing" to would-be Title VI plaintiffs.(172) Environmental justice advocates must convince courts to discard this improperly restrictive and quasi-legislative approach to Title VI. Avoiding the issue altogether will often prove a simple task, however, since a large number of Title VI cases will be unaffected by the IBD. Most Title VI environmental suits will target the siting or permitting of a facility, the administration of an environmental enforcement program, or the construction of a highway--all cases in which federal monies fund state programs intended to benefit all the residents of the jurisdiction. For plaintiffs in such situations, the IBD should pose no obstacle.

b. The Merits of a Title VI Case

In Guardians Association v. Civil Service Commission of New York,(173) a 5-4 majority of the Supreme Court held that a private party could bring suit for prospective relief to enforce Title VI regulations that prohibited disparate racial impact. As a unanimous Court explained two years later in Alexander v. Choate: "The [Guardians] Court held that actions having an unjustifiable, disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI."(174)

Thus after Guardians, while a showing of discriminatory purpose is required in a suit based on Title VI itself, plaintiffs do not face this burden when suing under regulations that prohibit disparate impact.(175) Following Guardians and Choate, the decisions of lower courts have firmly established the principle that regulations adopted "pursuant to Title VI may validly proscribe actions having a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory."(176)

Beyond this question of the legal standard initially applicable in a Title VI suit, the Supreme Court has not ruled on a plaintiffs burden of proof Federal courts hearing Title VI claims, however, have applied the strict evidentiary approach used under Title VII.(177) As others have pointed out,(178) the importation of Title VII standards to Title VI cases seems to be an unduly restrictive reading of the latter statute. Unlike Title VII, which extends into the private sector labor market where there is a presumption of employment at will, Title VI applies only to those parties who subject themselves to its requirements by accepting federal aid. Moreover, Title VII explicitly acknowledges that defendants have affirmative defenses that will justify practices that lead to disparate impact.(179) It also states explicitly that women and minorities need not be hired in numbers reflecting their representation in the population.(180) Title VI contains none of these qualifications. Nevertheless, courts seem to 'treat the disparate impact methodology developed under Title VII as a federal common law definition of discrimination generally applicable under the modem civil rights acts."(181) Accordingly, an analysis of a Title VI plaintiff s burden of proof requires an examination of Title VII case law.

The evidentiary structure that is used in a Title VII disparate impact case proceeds as follows: The plaintiff must make a prima facie showing of disparate impact. The defendant can escape liability by demonstrating that the disputed policy has a legitimate purpose--i.e., that it is "significantly related to some institutional concern at the core of the enterprise in question."(182) The plaintiff can still prevail, however, by offering a "less discriminatory alternative" that would sufficiently serve the defendant's legitimate interests. Courts deciding Title VI cases have followed this framework and have ruled that the burden of proof rests with the plaintiff in this last step.(183)

This outline of a plaintiff s burden of proof demonstrates that it is not true that Title VI prohibits disparate impact per se; rather, courts hold that Title VI forbids only those actions that have an unjustified disparate impact.184 Thus despite EPA's regulatory prohibition on discriminatory effect, environmental racism plaintiffs cannot prevail in court simply by "point[ing] to the bottom-line results of a complicated ... process and challeng[ing] the process's overall discriminatory effect."(185)

The fact that Title VI disparate impact analysis mirrors Title VII jurisprudence has recently worked to the advantage of environmental racism plaintiffs. The Civil Rights Act of 1991 (1991 Act) 186 changed Title VII law (and thus Title VI) to make it more difficult for a defendant to rebut a prima facie showing of disparate impact. In the 1991 Act, Congress legislatively reversed Wards Cove Packing Co. v. Atonio,(187) a case which favored defendants in Title VII suits. The 1991 Act amended Title VII to explicitly state that after a plaintiff demonstrates that a particular practice results in disparate impact, the defendant must "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity."(188) The act defines "demonstrate" as "meet[ing] the burdens of production and persuasion."(189) Thus, the new disparate impact analysis set out by the legislature clearly requires defendants confronted by a showing of disparate impact to prove both the non-racial nature of the program and the necessity for retaining it in its current form. Since Title VII jurisprudence applies to Title VI cases, the 1991 Act, which modified Title VII, should also change Title VI law.(190) This change should help environmental justice advocates when the new standard is carried over from Title VII to Title VI disputes.

C. Evaluating Title VI's Usefulness As a Means of Pursuing Environmental Justice

Title VI environmental racism claims give rise to problems with evidence and remedy that do not confront advocates bringing Title VI claims in housing, school, or employment cases. Using examples from the small universe of Title VI environmental cases, this section analyzes the difficulties involved in preparing Title VI environmental claims and suggests ways that those barriers can be surmounted.(191) It also highlights the issues involved in selecting a remedy that will best benefit plaintiffs without running afoul of the judiciary's unwillingness to redistribute environmental hazards. Finally, it describes how the increased use of Title VI claims can have structural, political benefits for the environmental justice movement.

1. Demonstrating Racial Disparity, Impact, and Alternatives

Environmental justice advocates will confront three problems as they press Title VI claims. First, what units will be measured and compared against each another in the disparate impact analysis? This might be simply stated as: Disparate as compared to what? Second, will simple proximity to a polluting facility be considered impact, or will some tangible harm have to be shown? Finally, after the burden of proof shifts, will plaintiffs be capable of disproving a defendant's assertion that a program or proposed facility with disparate impact serves "necessary" purposes?

a. Proving Disparity

Choosing the unit of population for comparison is the first factor that will affect the results of the disparate impact analysis. To construct an accurate study, the analyst must determine the size of the affected area and compare the demographic profile of that region with the demographics of unaffected areas within the defendant's decision making jurisdiction. A legal challenge to the administration of a state enforcement scheme would necessitate a comparison of enforcement in the plaintiffs' community with state-wide enforcement as a whole. On the other hand, if the target of the suit is a facility sited by a county land-use board, then that county would be the universe for statistical analysis.(192)

Part III's survey of equal protection cases revealed an analytical problem in most studies of the impacts resulting from the siting of LULUs. The effort involved in gathering data often leads analysts to use pre-ordained units of comparison, such as census tracts or zip codes, for which demographic information is already known. To see the problems that result from this method, consider a group of plaintiffs suing to halt the siting of a new municipal incinerator and alleging that in this instance and in others the city has violated Title VI by placing incinerators in minority neighborhoods. The plaintiffs would have a strong claim if they could show that the area surrounding the proposed facility to a ten block radius was composed almost exclusively of minority residents, and that the population became more white as distance from the facility increased.(193) Both the scale and the geographic structure of their unit of comparison are crucial to the analysis, however. If the plaintiffs base their study on census tracts or zip codes, then their analysis suffers from two types of problems.

The first problem is that the size of the study area bears no relationship to the area impacted by the polluting facility. If the census tract is larger than the impacted area, for example, whites might be counted as "impacted" when they are not, reducing the statistical disparity apparent in the plaintiffs' study.(194) Even if the census tract and the impacted area are coextant, the degree of impact is ignored since the method equates the effect on persons at the outer edge of the impacted area with the effect on people of color who are the incinerator's neighbors. The second problem with using "pre-studied" units of comparison is that the boundaries of the study area are uncorrelated to the area affected by the facility. Thus if the census tract lines cut close to an incinerator, minority residents who live in close proximity to the facility but across the boundary line will not be counted among the impacted.

One way to address such problems is illustrated by a Title VI complaint filed in late 1993 on behalf of African Americans for Environmental Justice (AAEJ), a group opposed to the siting of hazardous waste landfills and an incinerator in Noxubee County, Mississippi. 195 In the complaint, attorneys from the Sierra Club Legal Defense Fund point out that Noxubee County has the highest percentage of non-white residents and the lowest per capita income of any county that the state DEQ considers suitable for the facility.(196) In its depiction of the siting decision's disparate impact, the complaint employs counties as its demographic unit of measurement, but avoids the traps posed by the size and boundary problems. First, the complaint demonstrates how disparate impact stems partly from the transcounty boundary affect of existing hazardous waste facilities. It explains that a hazardous waste landfill sits in Emelle, Alabama--just fifteen miles from the Noxubee County line, and atop the same drinking water aquifer used by the complainants.(197) The complaint then describes a recently permitted hazardous waste burning kiln which sits in neighboring Lowndes County, but only five miles from the Noxubee County Line.(198) Here, the problem presented by the county-size unit of analysis is addressed, by highlighting the fact that "[a]lthough Lowndes County as a whole is predominantly write, the area of the county adjacent to the Noxubee County line, where the [recently-permitted kiln] is located is predominantly African-American."(199) Finally, the complaint addressed two hazardous waste facilities applying for permits in Noxubee county itself.(200) The picture is then complete: by addressing the size and boundary issues, the AAEJ complaint shows that while Mississippi as a whole produces about 45,000 tons of hazardous waste per year, Noxubee County and its immediate vicinity is the slated dumping ground for 130,000 tons annually of hazardous waste.(201)

In sum, advocates must approach the organization of their evidentiary case with an awareness of the size and boundary problems posed by units of measurement. The optimum analytic method is a radial study approach that analyzes demographics in concentric circles around a LULU. The disadvantage of this approach is that it is vastly more resource-intensive than using data from pre-measured units.(202) Because data collection is one task that governmental agencies are enthusiastic about, this disadvantage may be surmountable. The effort to gather data strong enough to withstand challenge in court is an area where environmental justice advocates would benefit greatly from public and mainstream environmental groups' resources.203 Where the resources necessary for radial-demographic study are not available, the AAEJ complaint demonstrates how advocates can choose a next-best approach that addresses the size and boundary problems that plague disparate impact analysis.

b. Proving Impact

The second issue in proving disparity is to demonstrate tangible "impact." In Title VI challenges to the siting of LULUs, defendants might argue that proximity to a polluting facility does not necessarily constitute "impact." None of the defendants in equal protection cases have made such a claim, but assuming, arguendo, that some sort of showing of actual "impact" will be necessary, this prerequisite should not be a serious barrier to filing suit.

If the subject of the suit is a facility or a facility siting regime, a showing of decreased property value or lessened enjoyment (because of noise, odor, smoke, etc.) should suffice.(204) In other cases, the impact of a defendant's actions will be so clear that demonstrating actual harm will not be at issue. For example, if the lawsuit targets the administration of an environmental program, it will be enough to show that plantiffs are deprived of the program's valuable benefits.(205) Finally, in some cases plaintiffs will be able to point to the fact that a disputed facility was successfully opposed by a white community, providing at least strong circumstantial evidence that minority residents who are forced to accept the facility have been harmed.(206)

c. Least Restrictive Alternatives

The plaintiffs' ability to demonstrate feasible, non-discriminatory alternatives to a challenged policy or action may present problems, even when a court applies the standard set out in the Civil Rights Act of 1991, which requires the defendant to prove that a project is necessary to achieve legitimate purposes. This problem is demonstrated by the only reported Title VI environmental racism case, Coalition of Concerned Citizens Against I-670 v. Damian.(207)

In Damian, an African-American community group sued under the Department of Transportation's Title VI regulations to enjoin highway construction that threatened their neighborhood. The court found that the plaintiffs had made out a prima facie case of disparate impact.(208) But, the court noted: "Defendants are not per se prohibited from locating a highway where it will have differential impacts upon minorities. Rather, Title VI prohibits taking actions with differential impacts without adequate justification."(209)

The court concluded that for two reasons the highway authorities had met their burden of proof by articulating legitimate, non-discriminatory reasons for the siting decision. First, the court found that the defendants had selected a final location for the highway "so as to minimize impacts upon minority neighborhoods."(210) (The highway avoided "most" of the neighborhoods that were 90% minorities.)(211) The court found in the alternative that the plaintiffs' claim should be disallowed because their proffered alternative, a combination of constructing public transportation and expanding the capacity of existing city streets, would not accomplish the objective sought (alleviating traffic congestion in the city of Columbus).(212)

Thus, in Damian, the court found that the defendants did have the responsibility to show necessity (although under federal highway regulations rather than under Title VI itself).(213) Nevertheless, the court accepted the defendants' claim that there simply were no alternatives available. In this regard, the challenge for plaintiffs is clear: even after they persuade the court that the defendant bears the burden of proving necessity, they must come to court with a viable "less discriminatory alternative," in order to refute the defendant's proof that no alternative exists.(214)

But while Damian should serve as a cautionary tale for environmental justice advocates preparing title VI claims, it should not be a source of discouragement. Damian presented the plaintiffs with particularly difficult problems of project momentum and geography. The court was clearly influenced by the fact that project's planning had been underway for ten years and six million dollars worth of property had already been purchased under the power of eminent domain.(215) These efforts were all directed toward siting a freeway somewhere in a largely minority urban area, which made proposing no- or low-impact alternatives difficult. In other cases, such momentum and geography problems will not arise, or can be mitigated or avoided.

For example, Matthews v. Coye was a suit brought by the Natural Resources Defense Council, the NAACP Legal Defense Fund, and several other groups on behalf of a class of predominantly African-American children in Oakland, California.(216) The Suit aimed to force California to implement a program to detect and treat the plaintiffs' lead poisoning. While Matthews was based on provisions of the Medicaid Act and 42 U.S.C. [sections] 1983, it is instructive as an example of a suit that does not attack a project with a huge amount of inertia--here the plaintiffs were not holding up the "progress" of a huge public works project. Ten months after the complaint was filed, the case settled after the state agreed to establish a program of blood testing and education to prevent lead poisoning.(217)

Nor will the geographical problem at issue in Damian be present in all Title VI cases. By its very nature, the issue arises only in cases involving the siting of LULUs, not where enforcement policies or the provision of health services are being challenged. Even in siting disputes, providing an alternative location is only difficult in those cases where a freeway must go somewhere through an all-minority area. In other types of disputes, however, there will be no necessary link between a minority-populated area and a LULU site. For example, in the Noxubee County, Mississippi dispute, the state siting agency has identified a number of counties that would be acceptable locations for the proposed incinerator.(218) In such cases, plaintiffs possess the ability to propose alternatives that would result in significantly less disparate racial impact.

Nevertheless, in some cases, problems of project momentum and geography cannot be avoided. For instance, in March 1993, a Title VI lawsuit was filed on behalf of a number of African-American groups and individuals challenging the reconstruction of the Cypress Freeway in West Oakland, California.(219) The freeway had been destroyed in a 1989 Bay Area earthquake, and the reconstruction site ran through an African-American neighborhood. The complaint stated:

The brunt of the Proposed Project's negative social, human health, and environmental

impact--including those associated with noise and air pollution, the

dislocation of persons, the condemnation of homes and businesses, the chilling

of economic development as well as the disruption of the life of the community--will

be borne by minority residents of West Oakland, including

plaintiffs.(220)

In such cases, a suit filed earlier stands a better chance of success. In Damian, over the many years of planning, many alternatives had been studied; all would have burdened some minority communities, and according to the court, the chosen route minimized that impact.(221) By taking action earlier, plaintiffs can influence the parameters of the alternative question, so as not to be boxed in when they reach trial. Thus, the West Oakland plaintiffs noted in their complaint that construction had not yet begun, and that "alternative freeway alignments exist which will eliminate or sharply reduce negative impacts."(222) Like Matthews, this case was eventually settled.

In some cases it may be possible to go beyond alternative sites and totally change the parameters of the equation, so that the function of a "necessary" facility can be performed in some other way. The plaintiffs in Damian attempted to do this with their proposal to alleviate traffic congestion through mass transit rather than a new freeway. While the Damian plaintiffs were unsuccessful, environmental policy is replete with examples of pollution that was considered "necessary" until a legal or financial incentive provoked a search for alternatives. For example, in the early 1970s, the oil industry opposed phasing lead out of gasoline, arguing that such a measure would cost seven cents a gallon, or $7 billion a year. In 1990, with the phase-out 99% complete, actual costs had proven to be 95% lower than the industry estimate, due to technological innovation.(223) A more recent example involved the Supreme Court's decision classifying municipal incinerator ash as a hazardous waste if it meets certain EPA criteria.(224) The city of Chicago argued before the Court that short of closing all their incinerators, there was no feasible alternative to their continued production of lead- and arsenic-bearing ash. But after the Court ruled that the ash had to be sent to expensive landfills designed for hazardous waste, the city announced that it would neither close the incinerator nor keep producing large amounts of hazardous ash; instead, it would separate lead- and arsenic-bearing items from the waste stream, ensuring that most of the ash would be non-hazardous.(225)

When advocates in a Title VI environmental racism suit can produce information that shows the feasibility of such alternatives, their claims have a greater chance of success. Even when alternatives are uncertain or difficult to clearly demonstrate, the construction of a prima facie case can yield valuable benefits to Title VI plaintiffs. As Matthews and Clean Air Alternative Coalition indicate, the establishment of a prima facie case will often be enough to elicit an advantageous settlement.(226)

2. Title VI Remedies for Environmental Racism

Under Title VI, declaratory and injunctive relief are available once disparate impact has been demonstrated to a court.(227) Damages, however, seem precluded except in cases of intentional discrimination.(228) A 1992 Supreme Court decision clarified this principle, holding that damages are available in antle IX case for intentional violations of Title IX.(229) Since Titles IX and VI are usually interpreted in parallel fashion,(230) damages should be available for intentional violations of Title VI.(231) Because of the difficulty of proving intent, however, this remedy will usually be unavailable to environmental justice plaintiffs. On the other hand, this can be turned to the plaintiffs' advantage, since it makes an equitable redistribution of environmental risks the only manner by which their injuries can be redressed.

Since Title VI prohibits discrimination in programs and activities, many lawsuits will be of the sort that request institutional remedies in addition to the cancellation or relocation of an individual facility.(232) Advocates must think through what type of changes are required to remedy the disputed program's disparate impact discrimination.

Some of the complexities of remedy selection are illustrated by comparing the currently pending Noxubee County, Mississippi Title VI complaint with disputes over environmental racism in Louisiana. In November 1994 the Tulane University Environmental law clinic Med a complaint on behalf of six African-American groups opposed to the sitting of a hazardous waste facility in Iberville Parish.(233) The complaint alleged that the Louisiana Department of Environmental Quality (LDEQ) was engaged in a number of practices which violated Title VI.(234) The complaint triggered an EPA investigation of Louisiana's siting regime, whereupon the governor announced that the state had reconsidered and was cancelling the facility's permit.(235) The dispute is not resolved, however, because the Clinic's clients plan to press their demand for a broader investigation, and have "suggest[ed] that a full review ... of all the public participation and hearing processes and procedures at the LDEQ would be in order."(236)

Several months before the Louisiana groups filed their complaint, an Advisory Committee to the U.S. Commission on Civil Rights issued a "comprehensive review of environmental problems in predominantly black communities in Louisiana."(237) The Committee report found that black communities in the corridor between Baton Rouge and New Orleans (often referred to as "Cancer Alley") were "disproportionately impacted by the present State and local government systems for permitting and expansion of hazardous waste and chemical facilities."(238) One of the Committee's many recommendations to ameliorate the problem was the establishment of buffer zones between polluting facilities and "residences, churches, and schools."(239)

By contrast, in the Noxubee County dispute the complainants contend that similar "buffer zone" criteria in Mississippi's siting statute work to push polluting facilities away from developed areas into rural regions which are predominantly African-American.(240) Thus, statutory criteria which are suggested as a remedy in Louisiana are characterized by the Mississippi plaintiffs as a cause of discriminatory disparate impact. This interstate comparison demonstrates how carefully advocates will have to craft proposed remedies to fit the specifics of individual cases.

In their effort to obtain effective remedies, prevailing plaintiffs can cite EPA's Title VI regulations, which provide that funding recipients who are found guilty of discrimination "shall take affirmative action to provide remedies to those who have been injured by the discrimination."(241) What form such "affirmative action" might take be will be determined by the court, but legislation introduced in the 103d Congress provides several examples. A 1993 Senate bill conferring cabinet status on EPA contained environmental justice provisions which would have obligated the agency to identify "environmentally disadvantaged populations" and to step up enforcement actions against industrial facilities in those communities.(242) A second bill evidenced a more aggressive type of "affirmative action:" it would have allowed EPA to enact a moratorium on all siting and permitting of new toxic chemical facilities in the country's 100 top "environmental high impact areas."(243) There is little hope that these bills will become law in the hear future, given the political mood of the 104th Congress, but the policies they contain might serve as models for consent decrees or court orders.

Of course, the truly difficult remedy issue for Title VI plaintiffs will be convincing a judge that the law requires some sort of redistribution of environmental risks. Courts certainly possess the power to order such risk redistribution.(244) But commentators studying existing environmental racism litigation have noted that as a practical matter, while the judiciary is willing to find for plaintiffs in cases that involve the provision of a social "good," the courts seem reluctant to make decisions regarding the placement of a social "bad" like a LULU.(245) This troublesome dynamic will not plague Title VI cases in the Matthews v. Coye mold, where plaintiffs seek the benefits of an enforcement program; but it may affect cases like the Mississippi and Louisiana disputes, where the complainants attempt to avoid the siting of a noxious facility. Where advocates are forced to confront this problem, they can only emphasize Title VI's uncompromising non-discriminatory commands, and argue that the court is not telling state or local authorities where to place the LULU--indeed, is not saying that it must be located anywhere at all--but rather is holding that the potential environmental hazard cannot be sited in the plaintiffs' community.

3. Broader Aspects of Title VI's Usefulness

The utility and applicability of Title VI, however, goes beyond its legal effectiveness. There are two ways it might facilitate positive changes within the environmental justice movement, which is at a crucial point in its development. The movement originally consisted of and continues to be dominated by community organizing and political activism. Grassroots activists in minority communities have a mistrust borne of experience of a strategy that works through the legal system.(246) This pessimism is shared even by some lawyers within the movement, who believe that a reliance on legal tactics distracts communities from their strongest weapon--political protest.(247)

This general difference in perspective between lawyers and activists(248) exists alongside a deeper rift that has always characterized the relationship between the environmental justice movement and environmentalism in general. One source of tension has been the perceived incompatibility between the civil rights movement's social justice agenda and the goals of the environmental movement--a perception borne mainly of environmentalism's traditional focus on natural resource conservation.(249) An additional source of conflict has been the absence--characterized by some as exclusion--of people of color and their concerns from the staff rooms and agendas of the mainstream environmental groups.(250)

Title VI can serve as a conceptual bridge between the environmental and civil rights legal communities. Moreover, the fact-intensive, statistical, and scientific nature of a Title VI disparate impact showing will hopefully continue to draw resources and support from mainstream environmental groups. If so, the "legal-scientific approach"(251) partially responsible for mainstream environmentalists' estrangement from the activist environmental justice movement can actually be put to good use. Additionally, Title VI provides the government with an established, if controversial, means of responding with its own initiatives to the political pressures brought to bear by the environmental justice movement. It thus serves as a bridge between a traditionally marginalized community of activists and an administration that appears to be sympathetic to their demands. By providing an avenue for environmental justice to take on the mantle of "good government," Title VI smoothes the way for a formally radical political idea's transition into the mainstream.(252)

V. CONCLUSION

Despite the failure of past attempts to seek environmental justice in the courts, advocates can pursue a civil rights claim under Title VI in response to disproportionately distributed environmental hazards. I have attempted to highlight the aspects peculiar to Title VI environmental claims and to show how the Title can be used to maximum effect. To that end, and against the backdrop of general Title VI jurisprudence, I have tried to anticipate the problems that may confront advocates litigating a Title VI environmental racism suit and to suggest how those problems can be surmounted.

Each type of litigation against environmental racism suffers from serious faults. Equal Protection claims impose an often impossible standard of proof Suits under environmental or common law offer inadequate remedies: only procedural rights in siting battles; only damages when a community suffers tortious injury; and no protection from the pollution emitted by numerous, concentrated facilities so long as each is complying with its individual permit.

The challenge for environmental justice advocates is to move beyond laws that guarantee only procedural fairness, that contain no substantive protections other than a prohibition on intentional discrimination. They need to find and employ legal tools that forbid discriminatory effects and provide substantive, equitable remedies for injury. Title VI meets these qualifications: it focuses on disparate impact, allowing plaintiffs to avoid having to prove intentional discrimination;(253) and it affords equitable remedies. Moreover, civil rights suits can serve a valuable symbolic function, allowing the community to state its complaint as a group and to assert directly what it believes the dispute is truly about: discrimination based on race.

Title VI's disparate impact approach also appears attractive in light of the empirical record examined in part II. The studies reviewed there showed (though with widely varying degrees of precision) a correlation between communities of color and the location of environmental risks. They did not, however, offer any evidence regarding causation, to say nothing of demonstrating the specific type of cause--intentional discrimination--that plaintiffs must prove in order to win an Equal Protection case. Title VI's impact-oriented inquiry would allow plaintiffs to avoid this difficulty.

Thus both the frustrations of past litigation efforts and the trend of the empirical record point the way Title VI as a weapon against environmental racism. By familiarizing themselves with Title VI's characteristics and application, advocates will be able to file suits that can put disparate impact evidence to good use. The growing body of empirical evidence is all the more reason for environmental justice advocates to gain a solid understanding of Title VI. Not only will they be able to put new data to immediate use, but they could also maximize the usefulness of the data gathering itself, by ensuring that researchers structure their inquiry in a manner that focuses on legally relevant questions, and thus produces valuable evidence for future Title VI claims.

As this new field of environmental anti-discrimination law begins to take shape, environmental justice advocates must also remember that Title VI--a congressional creation now subject to administrative and judicial application--is a creature both of politics (or at least policy) and law. There must be advocates in both of these arenas, arguing for an expansive view of Title VI's application to the question of how society distributes its pollution. In this fashion, they will be able to influence whether and to what extent Title VI can reshape environmental policymaking and environmental jurisprudence. By pushing for more energetic administrative interpretation and enforcement of the Title, and by working to convince courts not to create unduly restrictive Title VI environmental precedents, advocates can help give the Civil Rights Act new meaning for communities of color exposed to disproportionate environmental risks. (1) Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law: A Special Investigation, Nat'l L.J., Sept. 21, 1992, at S2. (2) John H. Adams, Message From the Director: Environmentalism and Justice at NRDC, Amicus J., Spring 1994, at 2 (statement of the Executive Director of the Natural Resources Defense Council). (3) See Linda D. Blank, Comment, Seeking Solutions to Environmental Inequity: The Environmental Justice Act, 24 Envtl. L. 1109, 1113-15 (describing the history of the environmental justice movement). (4) Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994). (5) Lavelle & Coyle, supra note 1, at S2 (statement of Wade Henderson, Director of the Washington, D.C. office of the NAACP). (6) For a definition of "environmental racism," see infra part I.A. See also Louisiana Advisory Comm. to the U.S. Comm'n on Civil Rights, The Battle for Environmental Justice in Louisiana . . . Government, Industry, and the People, at 95 app. (1993) [hereinafter THE Battle for Environmental Justice] ("In contrast, to the term `environmental racism,' environmental equity more broadly includes the disproportionate risk burden placed on any population group, as defined by gender, age, income, location, or occupation, as well as by race."). (7) 42 U.S.C. [sections] 2000d (1988). (8) See infra part IV.A (describing Title VI's statutory and regulatory commands). (9) Id. (10) U.S. Const. amend. XIV, [sections] 1. (11) See Regina Austin & Michael Schill, Black, Brown, Poor & Poisoned: Minority Grassroots Environmentalism and the Quest for Eco-Justice, 1 Kan. J.L. & Pub. Pol'y 69 (1991); Edward P. Boyle, It's Not Easy Being Green: The Psychology of Racism, Environmental Protection, and the Argument for Modernizing Equal Protection Analysis, 46 Vand. L. Rev. 937 (1993); Leslie A. Coleman, It's the Thought That Counts: The Intent Requirement in Environmental Racism Claims, 25 ST. Mary's L.J. 447 (1993); Jon C. Dubin, From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income Communities of Color, 77 Minn. L,. Rev. 739 (1993) (also discussing the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. [subsections] 3601-3631 (1988 & Supp. V 1993)); Pamela Duncan, Environmental Racism: Recognition, Litigation, and Alleviation, 6 Tul. Envtl. L.J. 317 (1993); Robert M. Frye, Environmental Injustice: The Failure of American Civil Rights and Environmental Law to Provide Equal Protection from Pollution, 3 Dick. J. Envtl. L. & Pol'y 53 (1993); Rachel D. Godsil, Remedying Environmental Racism, 90 Mich. L. Rev. 395 (1991); Carolyn M. Mitchell, Environmental Racism: Race as a Primary Factor in the Selection of Hazardous Waste Sites, 12 Nat'l Black L.J. 176 (1993); Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. Kan. L. Rev. 271 (1992); Naikang Tsao, Ameliorating Environmental Racism: A Citizen' Guide to Combatting the Discriminatory Siting of Toxic Waste Dumps, 67 N.Y.U. L. Rev. 366 (1992); R. George Wright, Hazardous Waste Disposal and the Problem of Stigmatic and Racial Injury, 23 Ariz. ST. L.R. 777 (1991). (12) Eg., Luke W. Cole, Environmental Justice Litigation: Another Stone in David's Sling, 21 Fordham Urb. L.J. 523, 531-34 (1994) (discussing Title VI); James H. Colopy, The Road Less Ykaveled: Pursuing Environmental Justice Through Titte VI of the Civil Rights Act of 1964, 13 Stan. Envtl. L.J. 125 (1994); see also Richard J. Lazarus, Pursuing & Environmental Justice": The Distributional Effects of Environmental Protectior, 87 Nw. U. L. Rev. 787, 834-839 (1993) (discussing Title VI). (13) Executive Order on Environmental Justice Calls on U.S. Agencies to Develop Strategies, 24 Env't Rep. (BNA) 1779 (Feb. 18, 1994) (discussing executive order directing compliance with Title VI and Senate bill explicitly applying the language of Title VI to toxics regulation); see also infra parts IV.B.2, IV.C (discussing recent Title VI environmental actions). (14) See discussion infra parts IV.B.2, IV.C. (15) Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 Yale L.J. 1383, 1386 (1994). For a discussion of Professor Been's scholarship and its relation to Title VI environmental racism suits, see infra part I.B.3. (16) Environmental Racism: Hearings Before the House Subcomm. on Civil and Constitutional Rights, 103d Cong., 1st Sess. (Mar. 3, 1993) [hereinafter Hearings] (testimony of Dr. Benjamin F. Chavis, Jr.). (17) Alice L. Brown, Environmental Justice: New Civil Rights Frontier, Practicing Law Institute, Environmental Law Update 1993, available in Westlaw, 474 PLI/Lit 813 (quoting Robert D. Bullard, Environmental Equity: Examining the Evidence of Environmental Racism, Land Use F., Winter 1993, at 6). (18) Dr. Chavis's statement is used here not to define his personal views, but because some commentators have cited it for the proposition that environmental racism does not exist without intentional discrimination. See sources cited supra note 17 (listing commentators who argue that environmental racism is intentional discrimination). In fact, Dr. Chavis clearly believes that discriminatory effect can be indicative of racism. See Benjamin F. Chavis Jr., Preface to Commission for Racial Justice United Church of Christ, Toxic Wastes and Race in the United States ix (1987) ("We share a common definition of racism with the National Council of Churches Racial Justice Working Group: . . . Racism is the intentional or unintentional use of power to isolate, separate and exploit others.'"). (19) See, e.g., Letter from John Baker, Professor of Law, Louisiana State University Law Center, in The Battle for Environmental Justice supra note 6, at 69 ("None of the extensive findings contains anything about, nor could they support a finding of, `deliberate targeting' or `official sanctioning'. .... Environmental racism has not been shown to exist in Louisiana."). (20) See, e.g., Linda Campbell, Environmental Justice Force Arrives, Chi. Trib., July 25, 1993, at C1 (quoting Richard Samp, Chief Counsel of the Washington Legal Foundation: "I have never seen any solid evidence that this is something that is based on race. I doubt there is any intentional racial discrimination."). (21) See, e.g., Colopy, supra note 12, at 129 n.7 ("This author defines environmental racism as the burdening of communities of color with higher than average amounts of pollution without a concomitant equitable share of benefits from environmental regulations."); Gerald Torres, Introduction: Understanding Environmental Racism, 63 U. Colo. L. Rev. 839, 840 (1992) (stating that to describe environmental policy as racist is "saying that the predictable distributional impact of that decision contributes to the structure of racial subordination and domination that has similarly marked many of our public policies in this country" . (22) See, e.g., Robert Bullard & Beverly H. Wright, Environmentalism and the Politics of Equity: Emergent Trends in the Black Community, 12 Mid-American Rev. of Sociology, Winter 1987, at 21, 25. (23) See San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 24 (1973) (stating that the Equal Protection Clause does not prohibit discrimination against the impoverished); see also discussion of Title VI, infra part IV.A (explaining that Title VI prohibits only race and national origin discrimination). (24) Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977) finding that an Equal Protection Clause violation requires a showing of intentional or purposeful discrimination against protected class). Disparate racial impact may be probative of discriminatory intent if it is accompanied by other evidence of prejudice. Id. at 265-66. See infra part III.A for a discussion of Equal Protection environmental justice clairm. (25) See, e.g., NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1328-31 (3d Cir. 1981) (finding violation of Title All of the Civil Rights Act can be proved based on disparate impact). See infra part IV.B.2.b for a discussion of the plaintiffs burden of proof in a Title VI case. (26) The Governor of Louisiana recently said: "Much of [the disparate impact] comes from the fact that up until recently, excepting Louisiana, minorities have had little political power and are easier targets than those in affluent areas." Mark Schleifstein & Ed Anderson, Hazardous Waste Taxes May Rise, Times Picayune, Jan. 25, 1994, at B1. (27) Louisiana's former Secretary of Environmental Quality, Kai Midboe, said of the African-American communities disproportionately affected by pollution in the Baton-Rouge to New Orleans industrial corridor: "These companies tend to locate where they can buy land cheaply, and they tend to locate in poor neighborhoods,. Unfortunately, the black community is disproportionately represented in those areas. And yes, the people living there are going to get more pollution." Scott Bronstein, Around the South: Environmental Racism?, Atlanta Const., Dec. 7, 1992, at A.3. (28) Robert Wolcott, Chairman of EPA's Environmental Equity Workgroup in 1992, concluded: "It's more economic class [than race]. It comes down to resources and to locating oneself in jobs and homes that avoid exposure. In many cases, `racial minorities don't have the capital to exercise that mobility."' Frye, supra note 11, at 65-66; see also Stephen C. Jones, EPA Targets `Environmental Racism,' Nat'l L.J., Aug. 9, 1993, at 28 ("The most basic issue--whether environmental racism actually exists as a phenomenon independent of the many social factors that determine racial disparities in this country--requires further empirical study."). (29) See, e.g., Robert D. Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement, in Confronting Environmental Racism: Voices from the Grassroots 15, 23 (Robert D. Bullard ed., 1993) ("[S]ocial inequality and imbalances of social power are at the heart of environmental degradation..."); Paul Mohai & Bunyan Bryant, Environmental Racism: Reviewing the Evidence, in Race and the incidence of Environmental-Hazards 163, 164 (Bunyan Bryant & Paul Mohai eds., 1992) (listing as a cause of disparity the "lack of local opposition to the facility, often resulting from minorities' lack of organization and political resources"). (30) See infra part IV.B.2.B (describing Title VI's prohibition on discriminatory effect in federally funded program and activities); see also infra note 96 and accompanying text (listing cases finding Equal Protection Clause violations where the knowing deprivation of municipal services by a city council caused foreseeable disadvantage in African-American neighborhoods). (31) Been, supra note 15, at 1391 n.28. (32) See generally Mohai & Bryant, supra note 29, at 165-69 (reviewing 15 studies that examined the distributional effects of environmental hazards, and finding that the majority of those that assessed the relative importance of race and income found race more significant). See infra notes 96, 106-08 and accompanying text (describing studies that employ a multivariate analysis to determine whether race has a relationship with the distribution of environmental hazards that is independent of income). (33) Been, supra note 15, at 1389; see also Bullard, supra note 29 at 21 ("African Americans and whites do not have the same opportunities to `vote with their feet' by leaving unhealthy physical environments."). Bullard notes studies showing that "an affluent African-American family (with an income of $50,000 or more) is as segregated as an African-American family with an annual income of $5000." Id. at 21-22; see also Luke Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 Ecology L.Q. 619, 628 n.24 (1992) [hereinafter Cole, Empowerment As the Key) (noting that "[r]esidential segregation today makes people of color vulnerable to toxic 'attacks' in much the same way that segregation in the 19th century made African-Americans vulnerable to less subtle attacks" . (34) NAACP v. Wilmington Medical Ctr., Inc., 491 F. Supp. 290, 307 n.158 (D. Del. 1980), aff'd, 657 F.2d 1322 (3d Cir. 1981); see also Linton ex rel Arnold v. Carney ex rel Kimble, 779 F. Supp. 925, 932 (M.D. Tenn. 1990) ("Because of the higher incidence of poverty in the black population, . . a policy limiting the amount of nursing home beds available to Medicaid patients will disproportionately affect blacks."). (35) United States v. Lowndes County Bd. of Edue., 878 F.2d 1301, 1305 (11th Cir. 1989) (discussing the desegregation of public schools). (36) Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993). (37) Been, supra note, 15, at 1406. (38) See sources cited supra note 33. 39 Been, supra note 15, at 1404-05. Professor Been is not the first to postulate that minorities "come to the nuisance." See Peter Asch & Joseph J. Seneca, Some Evidence on the Distribution of Air Quality, 54 Land Economics 278, 294 (1978). (40) Been, supra note 15, at 1391-92.

(41) Id. at 1392. (42) Id. (43) See infra nole 121 and accompanying text; see also discussion of Matthews v. Coye infra part IV. C.1.c. (44) Examples include Louisiana v. United States, 380 U.S. 145 (1965) analogizing to Title VR); Coalition of Concerned Citizens Against 1-670 v. Damian, 608 F. Supp. 110 (S.D. Ohio 1984); Clean Air Alternative Coalition, Inc. v. United States Dep't of Transp., No. C-93-0721- VWR (N.D. Cal. Med March 2, 1993); [hereinafter from Steven M. Staes & Robert R. Kuehn, Tulane Environmental Law Clinic, to Dan Rondeau, Office of Civil Rights, U.S. Environmental Protection Agency (Nov, 8, 1993) hereinafter Tulane Complaint) (on file with author). See also infra part III. C.2. (45) Professor Been notes that her hypothesis applies only to those cases where an initially "fair" siting procees later atttacted minorities to the area of impact. She says further that "[f]or the purposes of [herl discussion, a fair' siting will be considered one that has no disproportionate effect upon the poor or upon people of color." Been, supra note 15, at 1385 n.3. As Professor Been has noted elsewhere, "If the government has an obligation to distribute LULUs fairly, that obligation is not waived because some of the benefits of fair treatment will be dissipated by the unfairness of the private sector." Vicki Been, What's Fairness Got to Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 CORNELL L. Rev. 1001, 1024 1993) [hereinafter Been, Fairness]. (46) Equitable changes to the status quo might stern from lawsuits, administrative action, or new legislation. See, e.g., The Environmental Justice Act of 1992, H.R. 2105, 103d Cong., lst Sess. (1993) (proposing to establish a moratorium on the construction of polluting facili- ties in the 100 most polluted counties). (47) Cole, supra note 33, at 645 ("Grassroots activists .... by stopping the siting of toxic waste disposal facilities in their communites, have begun to force industry to move from pollution control to pollution prevention." . (48) Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environ- mental Racism, 11 VA. Envtl. L.J. 495, 503 (1992) (citing Robert D. Bullard, DUMPING IN Dixie: Race, Class, and Environmental Quality 37-38 (1990)). (49) Lazarus, supra note 12, at 832 citing NAACP v. Gorsuch, No. 82-768-CIV-5 (E.D.N.C. Aug. 10, 1982)). (50) U.S. General Accounting Office, Siting of Hazardous Waste Landfills and their Correlation with Racial and Economic Status of Surrounding Communities (1983). (51) Id. at 4. African Americans constituted 12% of the U.S. population in 1980. U.S. Bu- reau of the Census, Statistical Abstract of the United states 16 (1993). (52) Commission for Racial Justice, supra note 18. (53) Id. at 15. (54) See infra text accompanying notes 73-75. (55) Ivette Perfecto, Pesticide Exposure of Farm Workers and the International Connection, in Race and the Incidence of Environmental Hazards, supra note 29, at 180. These laborers live in extreme poverty, making an average yearly wage of $6000 and possessing a remarkably short life expectancy of just 49 years. Id. at 184 citing Marshall F. Goldsmith, As Farmworkers Help Keep America Healthy, Illness May Be Their Harvest, 261 J. Am. Med. Ass'n 3207-13 1989)). (56) Robert F. Wasserstrom & Richard Wiles, Field Duty: U.S. Farmworker and Pesticide Safety 3 (1985). (57) Hawley Truax, Minorities at Risk, Envtl. Action, Jan.-Feb. 1990, at 19, 20. (58) Cole, supra note 3:3, at 626 n.17 interpreting Robert E.B. Lucas, The Distribution of Job Characteristics, 56 Rev. ECON. & STAT. 530, 533 (1974)). (59) Cole, supra note 33, at 627 n. 17 (interpreting A.J. McMichael et al., Mortality Among Rubber Workers: Relationship to Specific Jobs, 18 J. Occupational Med. 178, 184 (1976), which reports a study of 6678 rubber workers that found that 27% of African-Americans but only 3% of whites worked in the industry's most dangerous areas). (60) See J. William Lloyd et al., Long-Term Mortality Study of Steelworkers, 12 J. Occupa- tional Med. 151, 157 (1970) (cited in Cole, supra note, 33, at 626-27 n. 17, for the proposition that African-Americans working in coke oven operations showed double the expected mortality rate from malignant neoplasms" ; J. William Lloyd, Long-Term Mortality Study of Steelworkers: Respiratory Cancer in Coke Plant Workers, 13 J. Occupational Med. 53, 55-56 (1971) finding that of coke plant workers, 320/o of whites and 89% of blacks were employed in oven area, where exposure to dust particles and dangerous gases is greatest; of this workforce, non-whites had double the expected death rate from malignant neoplasmas). (61) Truax, supra note 57, at 20 (stating that a disproportionate number of minority workers have blood levels exceeding workplace safety standards for lead in California and Texas, which are "the only two states that designate race on lab[oratory] forms for lead screening" . (62) Aaron Blaire, Causes of Death Among Laundry and Dry Cleaning Workers, 69 Am. J. Pub. Health 508 (1979) (showing, in National Cancer Institute study, that laundry workers, a high percentage of whom are non-white, have a higher risk of cancer of the liver, lung, cervix, uterus, and skin than the general population). (63) Cole, supra note 33, at 626 n.17 interpreting James C. Robinson, Exposure to Occu- pational Hazards Among Hispanics, Blacks, and Von-Hispanic Whites in California, 79 Am. J. Pub. Health 629, 629-30 (1989)). (64) Cole, supra note 33, at 626 n.17 (interpreting James C. Robinson, Racial Inequality and the Probability of Occupation-Related Injury or Illness, 62 MilBank Q. 567, 587-88 (1984)). (65) Environmental Equity Workgroup, U.S. Environmental Protection Agency, Environmental Fquity: Reducing Risk For All Communities 11-12 (1992); see also Janet Phoe- nix, Getting the Lead Out of the Community, in Confonting EnvironmentalL Racism: Voices From THE Grassroots, supra note 29, at 77. (66) Agency for Toxic Substances and Disease Registry, Centers for Disease Control, the Nature and Extent of Lead Poisining in Children in the U.S.: A Report to Congress (1988). (67) Id. at I-12. see also Campbell, supra note 20, at Cl. (68) Letter of Transmittal from Robert Kutcher, Chairperson, Louisiana Advisory Committee to Bobby Doctor, Acting Staff Director, U.S. Commission on Civil Rights, in the Battle for Environmental. Justice, supra note. 6. (69) Viki Reath, EPA. Commission Investigating Civil Rights Allegations, ENV'T WEEK, Oct. 14, 1993, at 1, 2. (70) Controversial Report on Health Effects in Poor Areas of Tennessee Released by EPA, 24 Env't Rep. (BNA) 1468 Dee. 3, 1993). (71) Been, Fairness, supra note 45, at 1012-13. In support of the correlation between the presence of a hazardous waste facility and the percentage of nonwhites in a given area, Been cites Robert Bullard, Solid Waste Sites and the Black Houston Community, 53 Soc. INQUIRY 273, 279-82 (1983) (Texas study finding that while 28% of Houston's population in 1980 were African-Americans, six of eight municipal incinerators, five of six permitted landfills, and five of five unpermitted landfills were in predominantly African-American neighborhoods); Harvey L. White, Hazardous Waste Incineration and Minority Communites, in RACE AND The Incidence of Environmental Hazards, supra note 29, at 126, 132 Louisiana study finding that minority conmunities in the Baton Rouge area in 1986 had one hazardous waste incineration facility for every 7349 residents, compared to one facility per 21, 110 residents in white communities); MICHAEL GREENBERG & RICHARD F. ANDERSON, HAZARDOUS WASTE Sites: The Credibility Gap 158-59 (1984) (New Jersey study); Kevin L. Brown, Environmental Dis- crimination: Myth or Reality 16-18 (1991) (unpublished manuscript) (St. Louis study of chemical emissions showing 46% more emissions in census tracts that were 75% African-American); Jane Kay, Minorities Bear Brunt of Polution, S.F. Examiner, Apr. 7, 1991 at Al- 2 Los Angeles County study of chemical emissions by zip code); Citizens FOR A Better Environment, at Risk: Community Demographics and Toxic Hazards from Industrial Polluters 2, 121-22 (1989). (72) A nation-wide survey of communities where hazardous waste incinerators were sited or proposed revealed that the communities with existing incinerators had a minority population 89% higher than average, and those communities targeted for incinerators had a 60% greater minority population. See PAT COSTNER & JOSEPH THORNTON, PLAYING With FIRE: Hazard- ous Waste Incineration (1990), cited in Michael Greenberg, Proving Environmental Inequity in Sitinq Locally Unnwanted Land Uses, 4 RISK 235, 241 (1993). (73) Mohai & Bryant, supra note 29, at 169-74. (74) Patrick C. West et al., Minority Anglers and Toxic Fish Consumption: Evidence from a Statewide Survey of Michigan, in RACE AND THE INCIDENCE OF ENVIRONMENTAL HAZARDS, supra note 29, at 100. (75) Michigan regulations set discharge limits based on the assumption that residents of the state consumed an average of 6.5 grams of fish per person per day. Id. at 104. The study showed that minority fishermen in fact consumed a great deal more--up to 33.7 grams per day for some age and income groups among the Native American population. Id. at 1 10-1 1. All anglers, including whites, exceeded the state's assumed limit. Id minorities consumed more contaminated fish than whites, with blacks exceeding the limit by more than four times. Id. at 110-12. Finally, income did not have a statistically significant relationship to contaminated fish consumption; rather, the anglers' degree of toxic exposure was determined by a combination of their race and age. Id. at 112. (76) Robert D. Bullard, Introduction to Confronting Environmental RACISM: Voices from THE GRASSROOTS 7, 11 Robert D. Bullard ed., 1993) "[Glovernmental action has in fact exacerbated many of the environmental threats to communities of color." . (77) Lavelle & Coyle, supra note 1, at S1. (780 Id. at S2. The average RCRA fine in white areas was $335,556; in minority areas, $55,318. (79) Id. at S1. The average fine in white areas was $153,067; in minority areas, $105,028. (80) Id. at S4. The NPL is the group of sites that EPA has determined require expedited cleanup under regulatory criteria. See CERCLA [sections] 105, 42 U.S. C. [sections] 9605 (1988). The National Law Journal study found that the disparity in treatment narrowed once a minority community site was placed on the NPL--cleanup began after 9.9 years in white areas, and after 10.4 years in minority communities. Lavelle & Coyle, supra note 1, at S6. But see John A. Hird, Environmental Policy and Equity: The Case of Superfund, 12 J. POL'Y ANALYSIS MGMT. 323, 337 (1993) (finding no relationship between speed of CERCLA cleanup and host community demographics).

The disparate treatment in individual cases, however, remains dramatic. A member of an Aspen, Colorado group whose community hosts an NPL site which presents little health risk testified, "Explain to a mother of a lead paint poisoned child in the inner city with a blood level of 35 [ug/dl] what the EPA is doing in Aspen, Colorado for 10 years and $10 million focused on people with 3.0 [ug/dl] blood leads." Site Listing, Cleanup Should Be More Fair, Based on Actual Risks, Witnesses Tell Panel, 24 Env't Rep. (BNA) 32 (May 14, 1993). In West Dallas, Texas a Latino citizens' group has filed a civil rights claim against EPA, charging that the Agency's delay in cleaning up their lead-contaminated neighborhood violates the Equal Protection Clause. See infra note 120. (81) Lavelle & Coyle, supra note 1, at S6. This greater incidence of containment in minority areas conflicts with a clear statement in the Superfund Amendments and Reauthorization Act of 1986 SARA) that treatment is the preferred remedy. CERCLA [sections] 121(b), 42 U.S.C. [sections] 9621(b) (1988). (82) See Clean Air Act, 42 U.S.C. [sections] 7604 (1988 & Supp. V 1993); Clean Water Act, 33 U.S.C. [sections] 1365 (1988); Resource Conservation and Recovery Act, 42 U.S.C. [sections] 6972 (1988); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. [sections] 9659 (1988). CERCLA also allows private lawsuits among polluters, but this serves only to allocate liability among pardes jointly and severally liable for cleanups. 42 U.S.C. [sections] 9613(f) (1988). (83) Citizen suits claiming NEPA violations are filed as challenges to final agency action" under [subsections] 701-706 of the Admnistrative Procedure Act. See Kleppe v. Sierra Club, 427 U.S. 390, 394 (1976). (84) The enforcement efforts of environmental groups have sometimes surpassed those of the federal government. For example, in 1983 the NRDC brought 62 citizen suits under the Clean Water Act, whereas the Justice Department brought only 56. Robert V. Percival et al., Environmental Regulation: Law, Science, and Policy 996 (1992). (85) Nepa suits have been employed in the hope of influencing government policy regarding both natural resources and the urban environment. See, e.g., Northwest Coalition for Alternatives to Pesticides v. Lyng, 673 F. Supp. 1019, 1026 (D. Or. 1987) (partially enjoining Forest Service herbicide spraying), aff'd, 844 F.2d 588 (9th Cir. 1988); Confederated Tribes & Bands of the Yakima Indian Nation v. Ferc, 746 F.2d 466, 470 (9th Cir. 1984) (enjoining relicensing of a hydroelectric project), cert. denied, 471 U.S. 1116 (1985); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 101 1, 1034 (2d Cir. 1983) ordering supplemental EIS on highway construction project's effect on fisheries in Hudson River); Hanley v. Kleindienst, 471 F.2d 823, 836 (2d Cir. 1972) (enjoining construction EIS in Manhattan). (86) See supra text accompanying note 15; see also Billy Easton, WHE-ACT for Justice, Envtl. Action, Winter 1993, at 33, 35 "Speaking of some national environmental groups, [West Harlem actevitest Vernice] Miller says, I don't think we have enough green stuff-trees and all. We don't have any birds except pigeons. Maybe we could get them to deal with us if we declared ourselves an endangered species.'"). (87) See infra, note 88. (88) For example, in Louisiana alone, a partial listing of minority organizations fighting environmental racism includes the Ascension Parish Residents Against Toxic Pollution, Citizens Against Nuclear Trash, the Congo Square Foundation, Geismar/Dutchtown Residents for Clean Water and Air, the Gulf Coast Tenants Association, Neighbors Assisting Neighbors, the North Baton Rouge Environmental Association, the, Oakville Community Action Group, Operation Clean Air of Paulina, the River Axea Planning Group, the Shrewsbury Community Organization, Victims of a Toxic Environment, and the Vietnamese-American Voters Association. See The Battle For Environmental Justice, supra, note 6, at 14; Tulane Complaint, supra note 44. (89) 426 U.S. 229 (1976). (90) 429 U.S. 252 1977). (91) 426 U.S. at 238-39. Any lesser standard, the Court explained, would threaten 'a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S. at 248. (92) 429 U.S. at 264-66. (93) The Court listed the relevant factors as 1) the existence of racially disparate impact; 2) the historical background of the decision, especially if this "reveals a series of offecial actions taken for invidious purposes"; 3) events leading up to the decision that reveal the decision makers' purpose; 4) any departures from the normal decision making process; 5) legislative and administrative history of the decision, including contemporaneous statements and minutes of meetings. Id. at 266-68. (94) The earliest reported Equal Protection case in the environmental field is Harrisburg Coalition Against Ruining the Env't v. Volpe, 330 F. Supp. 918 (M.D. Pa. 197 1). Mere a group of African-American plaintiffs alleged that racial discrimination had motivated the city of Harrisburg to cede portions of a public park used mainly by minorities to the federal government in order to site two major freeways. The court dismissed claims under the Fourteenth Amendment and [sections] 1981 of the Civil Rights Act for insufficient evidence. The judge rejected not only the plaintiffs' contention that the city had discriminatory motives in ceding away the land, but even their assertion that the park was mainly used by African-Americans. Id. at 926-27.

In Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673 (S.D. Tex. 1979), plaintiffs sued to engoing the siting of a solid waste facility located near a mostly black residential neighborhood and high school. The court rejected three sets of statistical data which plaintiffs used as circumstantial evidence of intentional discrimination. Id. at 678-90. It noted that plaintiffs would have had a stronger case if they had been able to move beyond their unit of analysis (a census tract) to show that within those majority white tracts possessing waste sites, the unwanted land use was located in a black neighborhood. Id. at 680. Although the court agreed that the contested siting decision was unfortunate and insensi- tive," it saw no evidence of intent and denied the injunction. Id. It is unclear what the court believed the true motivation to be, however, for the judge could make no sense of the decision to cite a solid waste facility little more than a quarter-mile from a high school. Id. at 679-80.

In re Genesee Power Station Ltd. Partnership, PSD App. Nos. 93-1 to 93-7, 1993 PSD LEXIS *1 (Sept. 8, 1993), was an unsuccessful environmental racism claim brought before EPA's highest administrative court. The Society for Afro-American People challenged the Clean Air Act permit granted to an incinerator located in a predominantly African-American neighborhood in Flint, Michigan. EPA's Appeals Board ruled that facility siting was a local law issue not subject to challenge in a forum dedicated to disputes about emissions standards, but nevertheless held that there was no basis on which to find intentional discrimination. The Board affirmed the incinerator permit on this and other grounds relating to emission standards. EPA's Office of General Counsel then filed a motion requesting that the Board reverse its decision concerning jurisdiction over environmental racism claims, but the Board responded by excising that portion of its opinion and affirming the earlier result. Id. at *3. (95) Disparate impact was unquestioned in NAACP v. Gorsuch, No. 82-768-CIV-5 (E.D.N.C. Aug 10, 1982), cited in Lazarus, supra note 12, at 832. That case arose from the campaign against siting a PCB-waste disposal facility in Warren County, which had the highest percentage of African-American residents in North Carolina, and 84% of the community surrounding the dumpsite were African-American. Collin, supra note 48, at 503. The court denied plaintiffs' request for a preliminary injunction on the grounds there was "little likelihood" that they would prevail on the merits, stating that there was "not one shred of evidence that race has at any time been a motivating factor for any decision [in the siting]." Lazarus, supra note 12, at 832.

Unmistakably clear disparate impact was also present in East Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb County Planning & Zoning Comm'n, 706 F. Supp. 880 (M.D. Ga. 1989), aff'd, 896 F.2d 1264 (11th Cir. 1989), in which plaintiffs challenged a zoning commission's decision to permit a landfill in a predominantly black census district. While agreeing that the landfill would disproportionately affect African-Americans, the court was influenced greatly by the fact that the county's other landfill sat in a 76% white census tract. Id. at 884. As plaintiffs pointed out, a change in the unit of measurement discounted this finding, because both census tracts were located in a county administrative district that was 70% black. Id. at 885. Analyzing the Arlington Heights factors, however, the court found no intent to discriminate and ruled for the defendants on the merits. Id. at 884-87.

In Bordeaux Action Comm'n v. Metropolitan Gov't of Nashville, No. 390-0214 (M.D. Tenn. filed Mar. 12, 1990), plaintiffs filed an equal protection claim against the improper oversight of a solid waste landfill in a 70% black community, but the plaintiffs' request for a preliminary injunction was denied. Luke W. Cole, Remedies for Environmental Racism: A View from the Field, 90 MICH. L. REV. 1991, 1994 (1992) [hereinafter Cole, Remedies for Environmental Racism] (citing Walter Searcy, attorney for plaintiffs).

In Residents Involved in Saving the Env't v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), the evidence showed that three prior landfills had been sited in predominantly African-American communities. A year earlier, the county authority had refused to allow a landfill to be sited in a white community, on the grounds that the facility would decrease properly values and that "environmental, health, safety, and welfare concerns" had been ignored. Id. at 114849. While agreeing that the siting decision had a disparate impact on the minority community, the court could find no evidence of intentional discrimination, and ruled for the defendants. Id.

A final action was dismissed on ripeness grounds. In El Pueblo para al Aire y Agua lampio v. Chemical Waste Management Inc., No. CRV-F-91-578-OWW (E.D. Cal. filed July 7, 1991), plaintiffs alleged that defendants engaged in a nationwide pattern and practice of siting hazardous waste incinerators in communities of color. The plaintiffs were specifically fighting an incinerator slated for construction in Kettleman City, California, a 95% Latino community. The court held that since the project had not received all necessary permits, it was not "sited" and thus the case was not ripe. (96) Ammons v. Dade City, Fla, 783 F.2d 982 (11th Cir. 1986); Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1186 (11th Cir. 1983); Baker v. City of Kissimmee, Fla., 645 F. Supp. 571 (M.D. Fla. 1986). (97) See., e.g., Ammons, 783 F.2d at 988 ("[W]hen it is foreseeable ... that the allocation of greater resources to the white residential community ... will lead to the `foreseeable outcome of a deprived black residential community,' then a discriminatory purpose ... is properly shown." (citations omitted)). (98) Commentators have noted that the conceptually opposite claims in the municipal services cases (involving the deprivation of a societal "good") and the environmental racism claims (involving the over-provision of a societal "bad") should legally amount to a distinction without a difference. See, eg., Lazarus, supra note 12, at 833. (99) See, e.g., Lazarus, supra note 12, at 830 ("[T]he practical effect of the required `discriminatory intent' element is devastating."); Duncan, supra note 11, at 354 (calling additional Equal Protection cases a "waste of time"); Boyle, supra note 11, at 979 ("[Plaintiffs] have little recourse under current equal protection law."); Godsil, supra note 11, at 420-21 ("Only a small number of plaintiffs will prevail using the Equal Protection Clause . . ."). (100) For example, in Riegelwood, North Carolina, the Natural Resources Defense Council and the NAACP Legal Defense and Education Fund filed a Clean Water Act suit on behalf of minority plaintiffs affected by water pollution from large corporate hog farming operations. See Duece Niven, Official Says Hog Farm Within State Rules, Fayetteville Observer-Times, Feb. 25,1993 (Business section); Ben Stocking, National Groups Say N.C. Case Classic `Environmental Racism,' News & Observer, Feb. 25, 1993 (Business section); see also Jean Anne Casey & Colleen Hobbs, Look What the GATT Dragged In, N.Y. Times, Mar. 21, 1994, at A17 (describing airborne animonia discharges and possible contamination of groundwater caused by industrial-scale hog farming).

In Santa Clara County, California, a group of Latino plaintiffs filed suit over cleanup measures at a Superfund site under two state environmental laws-proposition 65 and the Safe Drinking Water and Toxics Enforcement Act. See James Wheaton, Theme of "Justice" Augurs Big Change, Cal. Daily J., May 27, 1994, at 16-17. (101) See Lavelle & Coyle, supra note 1 at S2 (documenting disparate enforcement of environmental laws in communities of color). (102) In 1987, American companies self-reporting toxic discharges under the first year of the EPA's new Toxic Release Inventory (TRI) program discharged a total of 10.4 billion pounds of toxics into the environment: 3.9 billion pounds went into landfills, 3.3 billion to treatment and disposal facilities, 2.7 billion to air discharges, and 550 million into surface waters. In 1989 the total reported figure had dropped to 5.9 billion pounds, but the NRDC argued that this figure understated actual releases by as much as 95% because of noncompliant reporting and limitations on the types of chemicals and facilities that Must report. Percival et al., supra note 84, at 433. More recent figures released by EPA show 3.38 billion pounds of toxic releases in 1991. See Emergency Planning: Individual Releases of Toxic Chemicals Continue To Decline, EPA Administrator Says, 24 Env't Rep. (BNA) 180 (May 28, 1993). (103) For example, Alsen, Louisiana, an unincorporated, predominantly African-American community, is home to the fourth largest hazardous waste facility in the country: a Rollins Corp. landfill and incinerator which burned 80 million pounds of hazardous waste in 1992, including medical waste, heavy metals, pesticides, and radioactive waste. The company has caused groundwater contamination in the area and received numerous fines for violations of environmental law, and residents complain of health effects from the company's operations. Yet "[c]ompany officials question why Rollins has been singled out as being responsible for environmental pollution in Alsen, since at least nine other [pollution-discharging] facilities are located in and around the Alsen community": Petro Processors, which has created two Superfund sites; the Grow Chemical company; the Union Tank car Company; Schuykill Metals; Reynolds Aluminum Petroleum Coke division; Allied Signal; La Chem Chemical Company; Deltech; and an Exxon Resin Plant. See THE Battle For Environmental Justice, supra note 6, at 52-53. (104) See Boyle, supra note 11, at 971-77; Godsil, supra note 11, at 400-08. See generally A. Dan Tarlock, Siting New or Expanded Treatment, Storage, or Disposal Facilities: The Pigs in the Partors for the 1980s, 17 Nat. Resources L. 429, 430 (1984) (dealing with siting of new treatment, storage or disposal hazardous waste facilities). (105) Cole, supra note 33, at 646-47. (106) Id. at 647. (107) 42 U.S.C. [subsections] 43214370d (1988 & Supp. V 1993). (108) See, e.g., Keith v. Volpe, 352 F. Supp. 1324 (C.D. Cal. 1972) (involving NAACP, individual minority plaintiffs, and environmental groups opposing freeway), aff'd sub nom. Keith v. California Highway Comm'n, 506 F.2d 696 (9th Cir. 1974), cert. denied, 420 U.S. 908 (1975); Harrisburg Coalition Against Ruining the Env't v. Volpe, 330 F. Supp. 918 (M.D. Penn. 1971) (involving community group opposing highway construction through city park mainly used by black residents). (109) Regulations promulgated under NEPA provide for public input into the EIS: advance notice must be given of the agency proposal; interested parties must be able to comment upon a draft EIS; and at several points in the process, hearings must be held. See 40 C.F.R. Parts 1500-1517 (1994). In the words of the Supreme Court, although NEPA established "`significant substantive goals for the nation,' the balancing of the substantive environmental issues is consigned to the judgment of the executive agencies involved, and the judicially reviewable duties that are imposed on the agencies are `essentially procedural.'" Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980) (citations omitted). Moreover, in the experience of one environmental justice advocate, "most EIS's prepared for toxic waste facilities ... conclude that these facilities will have no significant impact on the surrounding communities." Cole, Remedies for Environmental Racism, supra note 95, at 1994 (discussing EIRs for the expansion of a hazardous waste landfill and for the construction of a hazardous waste incinerator which found that neither facility would significantly affect the environment). (110) See Cole, supra note 33, at 674-79 (describing how a lawyer and community leaders used a lawsuit under the California Environmental Quality Act as a community organizing opportunity). (111) The most infamously explicit statement of the strategy of siting environmental hazards in less politically powerful communities is found in a report by a consultant to the California Waste Management Board:

All socioeconomic groupings tend to resent the nearby siting of major facilities, but

the middle and upper-socioeconomic strata possess better resources to effectuate

their opposition. Middle and higher-socioeconomic strata neighborhoods should not

fall at least within the one-mile and five-mile radii of the proposed site. Cerrell Associates, Political Difficulties Facing Waste-To-Energy Conversion Plant Siting 27 (1984), (112) In New York City the NRDC recently settled a suit on behalf of a group of West Harlem residents who sued the city over the operation of a sewage treatment facility. West Harlem Envtl. Action v. New York City Dept. of Envtl. Protection, No. 92-16743 (N.Y. Sup. Ct. 1991). Originally planned for the Upper West Side of Manhattan, the facility was eventually sited in Harlem due to pressure from the original host community. Due to design flaws, the plant emitted hydrogen sulfide at levels exceeding state air quality standards, causing terrible odors and prompting a lawsuit based on a public nuisance theory. A settlement provided monetary damages and agreement to modify the plant to remedy the problem. (113) James E. Krier, The Pollution Problem and Legal Institutions: A Conceptual Overview, 18 UCLA L. Rev. 429, 454 (1971) (discussing shortcomings of tort suits as a mechanism for effective pollution control). (114) The opposition by black residents of Warren County, North Carolina to the PCB-waste facility led to a suit against the state by two local property owners claiming that the facility was a public nuisance and had caused a taking of their property by decreasing its value. Twitty v. Clark, 354 S.E.2d 296, 297 (N.C. App. 1987). The opinion in Twitty does not reveal whether the plaintiffs in the case were African-American, but the area was 84% African-American, and 64% of that community were home owners. Collin, supra note 48, at 503 n.61 citing Robert D. Bullard, Dumping IN Dixie: RACE, Class and Environmental Qualtity 36-37 (1990)). While the plaintiffs prevailed at trial, an appellate court dismissed all claims. The court dismissed the public nuisance claim on the grounds that the landfill was operating legally, and dismissed the private nuisance claim because it found the facility "reasonable," in that it was specially constructed to retain pollutants and that no toxic releases had been detected. Twitty, 354 S.E.2d at 301-02. The takings claim failed because plaintiffs' showing of decreased property value was insufficient; they needed to show actual interference with the use and enjoyment of their property, but the court found that they could not, given the fact that the facility was apparently functioning properly. Id. at 304. (115) See, e.g., Maddy v. Vulcan Materials, 737 F. Supp. 1528, 1538 (D. Kan. 1990) (finding "no evidence that [plaintiffs] respiratory problems were caused or aggravated by exposure to chemicals emitted by Vulcan"). See generally Daniel A. Farber, Toxic Causation, 71 Minn. L. Rev. 1219, 1226-33 (1987) (discussing difficulties in proving causation in toxic chemical exposure cases). (116) For example, a New York court dismissed 54 of the 91 personal injury actions by residents of the notorious Love Canal site. The court held that the actions were barred by the statute of limitations because they were filed more than three years after exposure to the chemicals. Farber., supra note, 115, at 1225 (citing Abram v. Occidental Chemical Corp., 1983] 14 Env't Rep. (BNA) 385. 386 (July 8, 1983) (summarizing an unreported decision)). (117) See, e.g., Shockley v. Hoechst Celanese Corp., 793 F. Supp. 670, 675 (D.S.C. 1992) allowing landowners whose property could not be developed because of contamination from defendant's toxic spills to recover $250,000). Common law suits are most effective in cases like this, where plaintiffs seek monetary compensation for property damage. (118) See Andrew Blum, Tort Reform: Camel's Nose Into State Law, NAT'L L.J., Mar. 20, 1995 at Al, A22; Milo Gayelin, Just Imagine: What Might Have Happened to Noted Plaintiffs Under Legal Overhaul, Wall. St. J.. Mar. 28. 1995 at B1 (discussing how pending legislation would have significantly reduced some verdicts in prominent tort suits). (119) See Springer v. Joseph Schlitz Brewing Co., 510 F.2d 468,473 (4th Cir. 1975) There is no conflict between the public interest in keeping a factory open and the private right to recover damages for pollution. The two may be reconciled by requiring the source of pollution to pay damages while allowing it to operate."); Boomer v. Atlantic Cement Co., 257 N.E.2d 870, 875 (N.Y. 1970),; see also Restatement (Second) of Torts [sections] 951 cmt. a (1977) allowing damages to be awarded in place of an injunction if to do otherwise would impose undue hardship on the defendant). (120) Class action suits are the obvious solution to the financial and political disadvantages of individual tort actions, but these are not always possible to maintain. For example, in West Dallas, a group of Latino residents brought a class action against a lead smelter that had severely polluted their neighborhood through decades of airborne emissions. RSR Corp. v. Hayes, 673 S.W.2d 928, 929-30 (Tex. Ct. App, 1984). They based their claims on nuisance, trespass, and negligent and intentional tort theories. While severe pollution of the area, as well as the defendant's culpability for the discharges, were undisputed, the case was dismissed because the court ruled that the injuries caused by that pollution were not common throughout the class. (121) See Colopy, supra note 12, at 150 n. 111 (citing West Dallas Coalition for Envtl. Justice v. United States, No. 3-91-2615-R (N.D. Tex. filed Mar. 23, 1992) (second amended complaint)). (122) See Duncan, supra note 11, at 354; Tsao, supra note 11, at 397. (123) See Godsil, supra note 11, at 419-20. (124) See Cole, Remedies for Environmental Racism, supra note 95, at 1996-97 (calling for environmental rights activism akin to the civil rights activism of the 1960s); Cole, Empowerment is the Key, supra note 33, at 64243 (describing grassroots activists' unmasking of "the hidden power dynamics of pollution and environmental laws"). (125) 42 U.S.C. [sections] 2000d (1988). (126) See, e.g., Marianne Lavelle, Clinton Pushes on Race and Environment, NAT'L L.J., Dec. 6, 1993, at 1 ("Under Title VI, [plaintiffs] need only show a discriminatory effect."); Viki Reath, EPA to Use Civil Rights Act in Siting Decisions, ENV'T WEEK, Oct. 7, 1993 ("Under Title [VI] of the Civil Rights Act of 1964, complainants must prove simply that an action has had a disproportionate impact on a community."); Omar Saleem, Overcoming Environmental Discrimination: The Need for a Disparate Impact Test and Improved Notice Requirements in Facility Siting Decisions, 19 Colum. J. Envtl. L. 211, 228 (1994) ("[Title VI] requires merely a showing of `disparate impact.'"). (127) Civil Rights Act of 1964 [sections] 601, 42 U.S.C. [sections] 2000d (1988). As the statutory language indicates, the Title applies across the whole range of federally funded activities and programs. Congress intended coverage to extend to programs including, but not limited to, "schools, highways, hospital construction, farm price supports, depressed areas, housing, urban renewal, vocational education, ship and airline subsidies, disaster relief, civilian defense, school lunches, and public health." The Civil Rights Act OF 1964, at 93 (BNA Operations Manual 1964), quoted in Colopy, supra note 12, at 153 n.123. (128) For a list of programs under which the EPA provides grants to state authorities, see 40 C.F.R. Part 7 app. A (1994). Assistance is provided under every major environmental statute. See Clean Air Act, 42 U.S.C. [subsections] 7401-7671q (1988 & Supp. V 1993); Clean Water Act, 33 U.S.C. [subsections] 1251-1387 (1988 & Supp. V 1993); Resource Recovery and Conservation Act, 42 U.S.C. [sections] 6986 (1988) (regulating solid and hazardous waste); Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. [subsections] 9601-75 (1988 & Supp. V 1993); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [subsections] 136-136y (1988 & Supp. V 1993) (regulating pesticides); Toxic Substances Control Act, 15 U.S.C. [subsections] 2601-2671 (1988 & Supp. V 1993). In 1986, federal grants constituted 46%, 33%, and 40%, respectively, of the states' budgets for air, water, and hazardous waste programs. Lazarus, supra note 12, at 835 (citing U.S. Environmental Protection Agency, A Preliminary Analysis of the Public Costs of Environmental Protection: 1981-2000, at 9 (1993)). (129) Letter from the Sierra Club Legal Defense, Fund to the U.S. Commission on Civil Rights 6 (Sept. 2, 1993) [hereinafter Sierra Club Letter] (requesting an investigation of Mississippi's hazardous waste facility permitting program) (on file with author). (130) 40 C.F.R. [sections] 7.35(b) (1994) (emphasis added). (131) 40 C.F.R. [sections] 7.35(a)(7) (1994) (132) 28 C.F.R. [sections] 42.405 (1994). (133) 40 C.F.R. [sections] 7.110-.115 (1994). (134) 40 C.F.R. [sections] 7.120 (1994). (135) 40 C.F.R. [sections] 7.130 (1994). For a more complete discussion of this administrative procedure, see Colopy, supra note 12, at 176-80. (136) See infra part IV.B.1. (137) See Guardians Ass'n v. Civil Serv. Comm'n of New York, 463 U.S. 582, 593-95 (1983). (138) James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 371 (1989). (139) 33 U.S.C. [subsections] 1281-1299 (1988 & Supp. V 1993). (140) Id. [sections] 1281 (1988). (141) Id. [subsections] 1281-1285. As the result of the construction grants program, which was replaced in 1987 by a revolving loan fund, the number of people served by sewage treatment plants that possess at least secondary treatment technology (which removes not only large solids but also some organic wastes and bacteria) rose from 85 million to 144 million between 1972 and 1988. Percival et al., supra note 84, at 871. (142) See U.S. Commission on Civil Rights, The Federal Civil Rights Enforcement Effort--1974, at 598-99 (1975) (criticizing EPA for failing to "take positive steps to end the systematic discrimination which has resulted in inadequate sewer services for many minority communities"). (143) EPA Administrator William Ruckelshaus testified before the U.S. Commission on Civil Rights in 1971 that

there are limitations as a regulatory agency to the kinds of things that [EPA] can do to

insure compliance with the Civil Rights Act because by withholding funds, for instance,

in some cases, it would not be a penalty against that community at all and it

would be no incentive for them to go ahead and do what we were asking them to do,

because in fact they might consider it a benefit not to have to spend that additional

money for the construction of [a] sewage treatment plant which our matching fund

would force them to spend. Colopy, supra note 12, at 182 n.279. (144) Lazarus, supra note 12, at 838 n.232. For most of its existence, EPA's tiny OCR has mainly processed employment discrimination complaints that originate within the agency. As recently as 1993, the OCR was staffed with the equivalent of four full-time officers. Colopy, supra note 12, at 183. (145) Colopy, supra note 12, at 184. As explained supra part II, the best data available indicate that race, not poverty, is the better predictor of the location of polluting facilities. (146) See Panel Considers the Need for Legislation to Combat Pollution in Poor, Minority Areas, 23 Env't Rep. (BNA) 2952 (Mar. 12, 1993). Rep. Edwards stated that EPA believed Title VI did not apply to scientific and technical activities. The Congressman's belief was based on 1971 testimony by EPA Administrator Ruckelshaus, who had said merely--but in the spirit of the agency's characteristic lack of enthusiasm--that EPA had not promulgated Title VI regulations. EPA officials quickly resolved Rep. Edwards' uncertainty, confirming that Title VI applied to all of the Agency's funding activities. See The Battle For Environmental (147) Exec. Order No. 12,898, 59 Fed. Reg. 7629 (1994). (148) For example, EPA's Region IV is conducting a Superfund equity analysis at all Superfund and RCRA permitted sites, and is examining the siting of waste treatment and TRI (toxics emitting) facilities; Region 11 is investigating whether there are disparities in Superfund remediation procedures; the Office of Solid Waste is undertaking an income- and race-based analysis of the effects of RCRA's corrective action rules, which require cleanup at contaminated sites before RCRA permits will issue. See Jones, supra note 28, at 34. Additionally, EPA is undertaking a race- and income-based analysis of environmentally induced health problems. This "Environmental Equity Data Base" will combine demographic data from the 1990 census, environmental data from air monitoring stations and the Toxics Release Inventory (recording toxic releases from all major industrial facilities), and health information from the National Health and Nutrition Examination Survey III (NHANES-III). See The Battle for Environmental Justice, Supra note 6, at 82-96 app. (149) See Reath, supra note 69, at 1. The complaints by environmental justice advocates that initiated two of these investigations, those in Louisiana and Mississippi, are discussed infra part IV.C. A third investigation resulted from the dispute over the Genesee Power Station's Clean Air Permit. See In re Genesee Power Station Ltd. Partnership, PSD Nos. 93-1 to 93-7, 1993 PSD LEXIS *1 (Sept. 8, 1993). (150) See, e.g., Clinton's "E" Justice Order May Lead to Restrictions on Facilities, Toxic Material News, Feb. 21, 1994 ("All Americans have a right to be protected from pollution, not just those who can afford to live in the cleanest, safest communities .... Today we direct federal agencies to make environmental justice a part of all that they do." (quoting President Clinton)). (151) See Schleifstein & Anderson, supra note 26, at B1 (reporting that Governor of Louisiana announces cancellation of permit for hazardous waste treatment facility after siting touched off EPA investigation of state program). (152) See Charles F. Abernathy, Title VI and the Constitution: A Regulatory Model for Defining "Discrimination," 70 Geo. L.J. 1, 29 (1981). Professor Abernathy notes that the legislative compromise that produced Title VI did not require an agency to go to court and enforce its decision, but permitted an aggrieved party to seek judicial review of the agency's action. Most important in preserving the agency's power, and in preventing unwarranted delay through de novo judicial factfinding, this form of administrative review allowed the agency's determination the benefit of the deferential "substantial evidence" test prevailing under the Administrative Procedure Act. Id. (footnotes omitted). (153) See, e.g., William E. Kovacic, The Reagan Judiciary and Environmental Policy: The Impact of Appointments to the Federal Courts of Appeals, 18 Envt'l. Aff. 669, 673 (1991) "present[ing] evidence suggesting that the Reagan appointees are more inclined than their Carter counterparts to place jurisdictional and remedial hurdles in the paths of private litigants seeking to enforce or expand pollution abatement requirements"). (154) Cannon v. University of Chicago, 441 U.S. 667, 706 n.41 (1979). (155) 40 C.F.R. 7.130 (1994); see also Colopy, supra note 12, at 178-80. (156) See supra part III.A. (157) See infra notes 163-71, 176-78 and accompanying text. (158) The D.C. Circuit has interpreted Cannon v. University of Chicago, 441 U.S. 677 (1979), as suggesting (though not holding) that Title VI provides no cause of action against funding agencies. Women's Equity Action League v. Cavazos, 906 F.2d 742, 748-50 (D.C. Cir. 1990). Cavazos holds that a Title VI suit against a federal agency is only allowable under specific circumstances, such as when the agency itself is charged with discrimination, or is accused of facilitating or encouraging a funding recipient's discrimination. Id. at 750. Moreover, the APA provides no cause of action against an agency alleged to be funding discriminatory entities in violation of the Civil Rights Act, if remedies against the recipients themselves are adequate. Cavazos, 906 F.2d at 748 ("Council for the Blind [v. Regan, 709 F.2d 1521 (D.C. Cir. 1983),] thus confirmed that 'if other remedies are adequate, federal courts will not oversee the overseer.'" (citing Coker v. Sullivan, 902 F.2d 84, 89 (D.C. Cir. 1990))). (159) 722 F. Supp. 443 (N.D. M. 1989). (160) The plaintiffs claimed that the Facilities Authority was subject to Title VI because it received a federal tax exemption for its bonds and because work on the stadium would be performed by agencies which received federal community development grants. Id. at 451. (161) Id. at 452. (162) This discussion draws on Paid K. Sonn, Fighting Minority Underrepresentation in Publicly funded Construction Projects After Croson: A Title VI Litigation Strategy, 101 Yale L.J. 1577 (1992). (163) Pub. L. No. 100-259, 102 Stat. 28 (1988) (Title VI provisions codified at 42 U.S.C. [section] 2000d-4a and 20 U.S.C. [section] 1687 (1988)). (164) Doe v. Saint Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986); Coalition of Bedford-Stuyvesant Block Ass'n v. Cuomo, 651 F. Supp. 1202 (E.D.N.Y. 1987); Griggs v. Lexington Police Dep't, 672 F. Supp. 36 (D. Mass. 1987); Vuciecevic v. Meneal Memorial Hosp., 572 F. Supp. 1424 (N.D. M. 1983). (165) 465 U.S. 555 (1984). (166) Id. (167) Id. at 573. (168) See, e.g., United States v. Alabama, 828 F.2d 1532, 1548 (11th Cir. 1987) (per curiam), cert. denied, 487 U.S. 1210 (1988). (169) Civil Rights Restoration Act of 1987 [sections] 2(2), 20 U.S.C. [sections] 1687(2)(A) (1988). (170) Id. [sections] 6, 42 U.S.C. [sections] 2000d-4a (1988). (171) Sonn, supra note 162, at 1590-91. Sonn gives further evidence that the 1987 Act abolished the IBD by pointing to the Act's legislative history (which explicitly stated an intent to overturn Grove City) and by noting that the Act explicitly preserved the "ultimate beneficiary" exemption. This exemption limits the scope of Title VI by excluding private persons like farmers or pensioners even though they, like the federally funded institutions subject to the Title, receive federal money. (172) See, eg., Allen v. City of Chicago, 828 F. Supp. 543, 565 (N.D. Ill. 1993); Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769, 777-78 (N.D. Ill. 1993); Scelsa v. CUNY, 806 F. Supp. 1126, 1140 (S.D.N.Y. 1992). The IBD cases use the word "standing." I put the term in quotes because the IBD does not present a standing challenge so much as it imposes an improperly narrow construction on the legislatively defined scope of Title VI. The briefest glimpse at standing law reveals the flaw running through the IBD cases. Article III's "case or controversy" requirement obligates a plaintiff to allege 1) a personal injury 2) fairly traceable to the defendant's conduct and 3) likely to be redressed by the requested relief Allen v. Wright, 468 U.S. 737, 751 (1984). Additionally, "prudential" requirements require 1) the plaintiffs asserted harm cannot be a "generalized grievance," 2) plaintiff can't assert the rights of others, and 3) plaintiffs complaint must fall within the "zone of interests" produced or regulated by the statute in question. See Valley Forge Christian College v. Americans United for the Separation of Church & State, 454 U.S. 464 (1982). Though the "intended beneficiary" opinions do not march step by step through this analysis, it is clear that they deny standing to plaintiffs who meet every element except (by the courts' reckoning) the zone of interests requirement. The zone of interests test, however, is nearly always decided in favor of the plaintiff. See, e.g., Clark v. Securities Ass'n, 479 U.S. 388, 399-400 (1987) ("The [zone of interests] test is not meant to be particularly demanding. In particular, there need be no indication of congressional purpose to benefit the would-be plaintiff."). Because the IBD cases consistently deny plaintiffs a place in the zone of interest, the doctrine looks less like a legitimate aspect of standing law and more like an improperly narrow reading of the scope of the statute. Courts who dismiss claims under the IBD are not ruling on the plaintiffs standing to sue, but rather on the merits of the claim: they are saying that Congress has not outlawed the discrination complained of; that Congress granted freedom from discrimination only to the intended beneficiaries of the federal funds. If this were ever true, it is no longer the case after the, 1987 Act, (173) 463 U.S. 582 (1983). (174) 469 U.S. at 293. The Choate Court explained: "[W]e held [in Guardians) that Title VI had delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and were readily enough remedial, to warrant altering the practices of the federal grantees that had produced those impacts." Id. at 293-94. (175) Guardians and Choate therefore resolved a tension in Supreme Court Title VI jurisprudence concerning the extent to which Title VI violations involved discriminatory intent. In 1974 the Supreme Court's first major interpretation of Title VI, Lau v. Nichols, held that a violation of the Title could be established merely through a showing of disparate impact. 414 U.S. 563, 568 (1974). Several years later, however, the Court withdrew from this expansive interpretation in Regents of he University of California v. Bakke. 438 U.S. 265, 287 (1978). The language in Bakke seemed to restrict Title VI to the scope of the Equal Protection Clause, thus requiring plaintiffs to prove intentional discrimination. Guardians thus reaffirmed the principle set out in Lau. (176) Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993); see also Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Grimes ex rel Grimes v. Sobol, 832 F. Supp. 704, 709 (S.D.N.Y. 1993); Association of Mexican-American Educators v. California, 836 F. Supp. 1534, 1546 (N.D. Cal. 1993); City of Chicago v. Lindley, No. 92-C-4666, 1992 U.S. Dist. LEXIS 15068, at *10 (N.D. Ill. Oct. 5, 1992); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1523 (1991). (177) See, e.g., Georgia State Conference of Branches of NAACP, 775 F.2d at 1417; Larry P. v. Riles, 793 F.2d 969, 982 n.9 (9th Cir. 1984); see also Sonn, supra note 162, at 1595 & n.91 citing cases). (178) Sidney D. Watson, Reinvigorating Title VI: Defending Health Care Discrimination--It Shouldn't Be So Easy, 58 Fordham L. Rev. 939, 971-73 (1990); see also Sonn, supra note 162, at 1596 & n.92 (citing Watson). (179) See Watson, supra note 178, at 972 n.204 ("Title VII contains statutory exceptions for professionally developed tests, bona fide seniority systems, and bona fide merit systems ....") (180) Title VII [sections] 7030), 42 U.S.C. [sections] 2000e-20) (1988). (181) Sonn, supra note 162, at 1596. (182) Id. at 1598. (183) See, eg., Coalition of Concerned Citizens Against 1-670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984) (stating that after defendant presents justification for actions, "[t]he ultimate burden of proving illegal discrimination remains with plaintiffs"). (184) Id. (185) Sonn, supra note 162, at 1597. (186) Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified in scattered sections of 42 U.S.C.). (187) 490 U.S. 642 (1989). (188) 42 U.S.C. [sections] 2000e-2(k)(1)(a)(i) (emphasis added). (189) 42 U.S.C. [sections] 2000e(m). (190) See Sonn, supra note 162, at 1596-97; Colopy, supra note 12, at 163-64. (191) This discussion is exclusively concerned with the preparation of a Title VI lawsuit, rather than an administrative complaint. Evidence prepared with a lawsuit in mind can always be turned over to an agency with the filing of a Title VI complaint. The converse is not true, however, because it is only in the litigation context that environmental justice advocates will be able to control the development of a claim; an agency enforcement proceeding would be administered according to EPA regulations and policies, with no official role for private parties. See supra note 152. (192) Since many LULUs are now sited under state law, however, the state could be the appropriate parameter of measurement. See Boyle, supra note 11, at 971-77; Godsil, supra note 11, at 400-08. (193) In this hypothetical, the analyst would probably have to go beyond the single disputed faclility to show that the distribution of existing facilities supported the claim of disparate impact. The city might otherwise simply respond that white neighborhoods also had a fair share of these unwanted land uses. See East Bibb Twiggs Neighborhood Assn v. Macon-Bibb County Planning and Zoning Comm'n, 706 F. Supp. 880, 884 (M.D. Ga. 1989) (rejecting plaintiffs claim because county's other landfill sat in a predominantly white census traco, off'd, 896 F.2d 1264 (11th Cir. 1989); Bean v. Southwest Waste Management Corp., 482 F. Supp. 673, 680 (S.D. Tex. 1979) (rejecting plaintiff's claim that selection of a site for a solid waste facility was discriminatory); see also West et al., supra note 74 (studying all facilities in Detroit area). (194) See, eg., Bean, 482 F. Supp. at 680 (noting that defendants' case would be stronger if they showed that within majority white census tracts possessing waste sites, the LULU was located in African-American neighborhood); East Bibb Twiggs Neighborhood Assn, 706 F. Supp. at 884-85 (noting that while the existing landfill sat in predominantly white census district, it was located in smaller administrative unit that was predominantly black); see also Letter from the Sierra Club Legal Defense Fund, supra note 129 ("Although Lowndes County as a whole is predominantly write, the area of the county ... where the [proposed hazardous waste incinerator] is located is predominantly African-American."). (195) Sierra Club Letter, supra note 129. (196) Id. at 8. (197) Id. at 2. (198) Id. (199) Id. at 2-3. (200) Id. at 3. The town of Brooksville is the proposed location for a 50,000 ton per year incinerator and a 340,000 ton per year landfill. Shuqualak Mountain is the proposed site for a second landfill with a 200,000 ton per year capacity. Id. (201) Id. at 2-3. (202) This problem of resource expenditures is exacerbated by a recent Supreme Court decision which disallowed experts' fees as attorney's fees recoverable by the prevailing party in a Title VI suit. West Virginia Univ. Hosps. v. Casey, 499 U.S. 83, 102 (1991). (203) The challenge for environmental justice advocates short on resources is to lobby for data collection mechanisms which are not captured or managed by those hostile to advocates of environmental justice. See Cole, Remedies for Environmental Racism, supra note 95, at 1994-95 (agency-generated irtformation regarding environmental impact often understates actual effect of proposed project); Donald T. Homstein, Lessons from Federal Pesticide Regulation on the Paradigms and Politics of Environmental Law Reform, 10 Yale J. on Reg. 369, 436-37 (1993) (discussing problems with falsified and misleading data on (204) There is much evidence that hazardous waste facilities generally have a depressing effect on property values. See Been, Fairness, supra note 45, at 1020-21 nn.109-10. (205) There are no examples of Title VI suits of this sort, but see, e.g., Colopy, supra note 12, at 150 n.111 (citing West Dallas Coalition for Envtl. Justice v. United States, No. 3-91-2615-R (N.D. Tex. filed Mar. 23, 1992) (second amended complaint) (equal protection challenge to EPA's Superfund cleanup of lead-contaminated Latino neighborhood)); see also Brief for Matthews, Matthews v. Coye, Civ. No. C-90-3620 EFL (N.D. Cal. filed Dec. 20, 1990); infra text accompanying note 214. (206) See East Bibb Twigs Neighborhood Ass'n v. Macon-Bibb County Planning Comm'n, 706 F. Supp. 880, 885 (M.D. Ga- 1989), aff'd, 896 F.2d 1264 (11th Cir. 1989). (207) 608 F. Supp. 110 (S.D. Ohio 1984). (208) The court noted that parts of 1-670 would travel through neighborhoods that ranged from 5096 to over 90% racial minorities; that of those displaced by the highway construction, nearly 75% were minorities; and that "the disruptions and negative impacts of highway construction and after the highway is operating will fall primarily upon neighborhoods that are mostly comprised of minorities." Id. at 127. (209) Id. (210) Id. (211) Id. (212) Id. at 128. (213) Id. ("If plaintiffs' alternative contention arose under Title VI alone, there would be some question whether defendants were required by federal law to consider alternatives with less disparate impact. However, the Court need not decide this issue, for regulations promulgated [under the highway act] impose such a duty." (citation omitted)). (214) See Sonn, supra note 162, at 1600 ("Courts are generally unlikely to reject a government's affirmative defense unless plaintiffs have shown the availability of a reasonable and less discriminatory alternative."). (215) Coalition of Concerned Citizens Against 1-670 v. Damian, 608 F. Supp. 110, 113 (E.D. Ohio 1984). (216) Matthews v. Kizer, No. C-90-3620-EFL (N.D. Cal. filed Dec. 20, 1990) (class action complaint, parties later changed to Matthews v. Coye). (217) Matthews v. Coye, No. C-90-3620-EFL (N.D. Cal. Oct. 17, 1991) (stipulation for settlement and dismissal without prejudice). (218) Sierra Club Letter, supra note 129, at 8. (219) Clean Air Alternative Coalition v. U.S. Dep't of Transp., No. C-93-0721-VRW (N.D. Cal. filed Mar. 2, 1993) (complaint for declaratory and injunctive relief). (220) Id. at 31. (221) 608 F. Supp. at 127-29. (222) Clean Air Alternative Coalition, supra note 219, at 31-32. (223) Percival et al., Supra note 84, at 167. (224) City of Chicago v. Environmental Defense Fund, 114 S. Ct. 1588, 1591 (1994). (225) See Keith Schneider, Incinerator Operators Say Ruling Will Be Costly, N.Y. Times, May 3, 1994, at A18. (226) See Lazarus, supra note 12, at 838; Matthews v. Coye, No.C-90-3620-EFL (N.D. Cal. Oct. 17, 1991) (stipulation for settlement and dismissal without prejudice of environmental racism claim brought under Medicaid Act and [sections] 1983). (227) Guardians Ass'n v. Civil Serv. Comm'n of N.Y., 463 U.S. 582, 599 (1983). (228) Id. at 607 n.27 (White, J.) (explaining that a majority of the divided Court "would not allow compensatory relief in the absence of proof of discriminatory intent" ; see also Eastman v. Virginia Polytechnic, 939 F.2d 204, 206-07 (4th Cir. 1991) (interpreting Guardians as allowing damages for intentional discrimination). (229) Franklin v. Gwinnett County Pub. Schs., 112 S. Ct 1028, 1037-38 (1992). (230) See supra note 168 and accompanying text. (231) Professor Lazarus omits the crucial element of intent, incorrectly characterizing Franklin as holding simply that damages are available in Title IX cases (and thus, by extension, under Title VI). Compare Lazarus, supra note 12, at 836 with Franklin, 112 S. Ct at 1037 ("Congress surely did not intend for federal monies to be expended to support the intentional actions it sought by statute to proscribe." (emphasis added)). (232) See, e.g., Matthews v. Coye, No. C-90-3620-EFL (N.D. Cal. Oct. 17 1991) (stipulation for settlement and dismissal without prejudice Med in case seeking to restructure state-run Medicaid-funded lead testing program). Two of the cases now pending would take on this form if transferred to the courts. See Tulane Complaint, supra note 44 (attacking state siting statute); Sierra Club Letter, supra note 129 (same). (233) See, e.g., Tulane Complaint, supra note 44. (234) The complaint alleged, inter alia, that LDEQ 1) provided the minority groups with insufficient notice regarding the start of the permitting process and an adjudicatory hearing; 2) granted the facility's permit despite the fact that the surrounding communities were "overburdened with facilities which generate, treat, store or dispose of toxic substances"; 3) refused to implement or require the permittee to comply with state laws requiring the consideration of adverse social and welfare effects of siting hazardous facilities; and 4) charged at a minimum $450 to provide the administrative record needed to prepare for future judicial challenges to the facility, "denying review to poorer minority populations." Id. at 1-3. (235) See Schleifstein & Anderson, supra note 26, at B1. (236) Tydane Complaint, supra note 44, at 3; Telephone Interview with Robert R. Kuehn, Director of the Tulane Environmental Law Clinic (Feb. 13, 1995). (237) Preface to The Battle for Environmental Justice, supra note 6. (238) Id. at 63. (239) Id. (240) Sierra Club Letter, supra note 129, at 7. (241) Nondiscrimination in Programs Receiving Federal Assistance form the E.P.A., 40 C.F.R. [sections] 7.35(a)(7) (1994). (242) S. 171, 103d Cong., 1st Sess. [sections] 122 (1993). (243) H.R. 2105, 103d Cong., 1st Sess. (1993). (244) When adjudicating disputes under the Civil Rights Act, courts have "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future," Louisiana v. United States, 380 U.S. 145, 154 (1965) (Title VII case). (245) Professor Lazarus makes this argument when comparing environmental racism and municipal services cases discussed infra part III.A. Lazarus argues that the relevant difference between the municipal services and the environmental racism cases is that in the former type of dispute,

there is not an immediate perception that the parties are involved in a zero-sum game

where winners and losers must necessarily offset each others' gains and losses....

However, where the question is how environmental risks are to distributed or redistributed,

a court is more likely to perceive the necessary tradeoffs. In short, the risks

must go somewhere.... [C]ourts seem far less willing to invoke the equal protection

clause to dictate to a local government [in environmental racism cases] perhaps because

the redistribution would so directly implicate the quality of the environment

enjoyed by those in the community wielding great political and economic influence.

Lazarus, supra note 12, at 833-34. (246) As Chappell Hayes, head of an Oakland environmental justice coalition, put it: "[S]o what tools do we have to fight with? A lawsuit, man, that's no tool to fight with. That's sort of a last resort." Oakland's Clean Air Coalition Fights Environmental Racism, Race, Poverty, and the Environment, Summer 1993, at 41. (247) See, e.g., Cole, Remedies for Environmental Racism, supra note. 95, at 1997 ("[A]ny legal strategy not firmly grounded in, and secondary to, a community-based political organizing strategy is ripe for failure."). In the words of activist Pat Bryant, "The movement is looking for lawyers on tap, not lawyers on top." Luke W. Cole, Environmental Justice in the Classroom: Real Life Lessons for Law Students, 96 W, Va. L. Rev. 1051, 1066 (1994) [hereinafter Cole, Lesson for Law Students]. (248) While the environmental justice movement retains its strong grassroots orientation, the mainstream environmental groups are headed mostly by lawyers and have relied heavily on the court system to further their cause. "[B]y 1983, the heads of the Sierra Club, NRDC [Natural Resources Defense Council], the Audobon Society, EDF [Environmental Defense Fund], and the Wilderness Society were all attorneys." Cole, Empowerment as the Key, supra note 33, at 635 n.47 (citing Christopher Manes, Green Rage: Radical Environmentalism and the Unmaking of Civilization 255 n.8 (1990)). "Litigation is the most important thing the environmental movement has done over the past fifteen years," says Frederick Sutherland, executive director of the Sierra Club Legal Defense Fund. Id. at 636 (quoting Tom Turner, The Legal Eagles, Amicus J., Winter 1988, at 25, 27). (249) For example, the pioneering poverty lawyers Edgar and Jean Cahn believed that environmental law was incompatible with lawyering for social justice:

In the current romance between public interest law devotees and pollution, there is

danger of a major moral default by the legal profession. Mayor Hatcher correctly observed

that the environment issue had done what Alabama's George Wallace had not

been able to do--"distracted the attention of the nation from the pressing problems of

the black and poor people of America." Cole, Empowerment as the Key, supra note 33, at 620 n.2 (quoting Edgar S. Cahn & Jean Camper Cahn, Power to the People or the Profession?--The Public Interest in Public Interest Law, 79 Yale L.J. 1005 (1970) (quoting Mayor Hatcher, Address at an Environmental Teach-in, University of Michigan (March 14, 1970))). (250) See Hearings, supra note 16 ("[Environmental racism is] manifested in the history of excluding people of color from the leadership of the environmental movement." ; see also Administration Will Issue Executive Order on Environmental Justice in 1994, Gore Says, 24 Envt Rep. (BNA) 505 (Dec. 10, 1993) (stating that participants of the Black Church Environmental Justice Summit declare that "[t]he `mainstream' environmental groups have not fully embraced the reality that environmental issues include economic and racial justice"). (251) Cole, Empowerment as the Key, supra note 33, at 662. (252) This aspect of Title VI will also aid all those who wish to bring the subject of environmental justice into the mainstream of environmental legal education. See Cole, Lessons for Law Students, supra note 247, at 1068. (253) See supra text accompanying notes 131-35, 174-76 (describing EPA's results-based Title VI regulations and a plaintiffs burden of proof in a

Michael Fisher J.D. 1994, Yale Law School; M.Sc. 1990, London School of Economies; B.A. 1989, Rice University. I would like to thank Professor Paw Gewirtz, Paul Sonn, and especially Christy Lopez for their helpful comments