"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)
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
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.
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...