Legal Tools for Environmental Equity vs. Environmental Justice

Author:Mike Ewall
Position:Founder and director of the Energy Justice Network (www., a national support network for grassroots community groups fighting dirty energy and waste industry facilities such as coal power plants, ethanol plants, natural gas facilities, trash and biomass incinerators
Mike Ewall, Esq.*
In 1982, when Benjamin Chavis coined the term “environ-
mental racism” to describe the targeting of a black com-
munity in Warren County, North Carolina for a toxic waste
dump, it brought together two powerful movements – the civil
rights and environmental movements – into a growing force that
would eventually reach the White House and the United States
Supreme Court.2 No one would have guessed at the time that
within a five day span around Earth Day 2001, the legal side
of the movement against environmental racism would see its
brightest, and then darkest, days.
Since the early 1980s, numerous studies have looked at
the correlation between environmental hazards and the race
and class demographics of the communities where these haz-
ards are located.3 The vast majority have shown a trend toward
low-income communities and especially communities of color
being unfairly burdened with excessive pollution from a variety
of polluting industries and chemical exposures.4 These studies
affirmed the understanding of an environmental racism trend.
While many are quick to conclude that communities of color
are targeted solely because of their generally low-income socio-
economic status, most of the studies have demonstrated that race
is more of a factor than class.5 In other words, if one were to
compare a middle-class community of color to a low-income
white community, and look at which community is more likely
to have a hazardous waste facility sited there, the middle-class
community of color would have a greater chance of being tar-
geted for such a facility. In fact, in some cases, race is a more
significant indicator of pollution burdens than income, poverty,
childhood poverty, education, job classification, or home own-
ership.6 Demographic studies showing disparate distribution
of polluting industrial facilities have been key aspects of many
environmental racism lawsuits. Such studies of discriminatory
effects are necessary since intentional discrimination is very
hard to prove, except in the rare cases where inappropriate
industry siting reports are leaked.7
The growing movement against environmental racism came
together in October 1991 for the First National People of Color
Environmental Leadership Summit held in Washington, D.C.
Participants drafted and adopted the seventeen Principles of
Environmental Justice.8 The Principles set forth a bold vision of
what would be necessary to address environmental racism.9
Initially, the controversy in Warren County, North Carolina
resulted in the General Accounting Office studying the locations
of hazardous waste landfills in the southeastern United States.10
The 1983 study found that three of the four existing hazardous
waste landfills were in African-American communities, when
African-Americans constituted only twenty percent of the
region’s population.11
In 1990, the Congressional Black Caucus met with the U.S.
Environmental Protection Agency (“EPA”), accompanied by
academics and activists, to discuss the disparate environmen-
tal risks in low-income and minority communities.12 The EPA
created the Environmental Equity Workgroup in July 1990 in
response to the presentation of findings by social scientists that
“racial minority and low-income populations bear a higher envi-
ronmental risk burden than the general population” and that the
EPAs inspections failed to adequately protect low-income com-
munities of color.13 Analysis shows that the agency takes longer
to get around to cleaning up toxic waste sites in communities of
color and that penalties under hazardous waste laws were five
times higher in white communities than in communities of color
and forty-six percent higher for other programs relating to air,
water, and waste.14
In June 1992, the Environmental Equity Workgroup pro-
duced a report that supported the findings that recommended
the formation of an EPA office to address these disparities.15 In
November 1992, one year after the Principles of Environmental
Justice were written, the EPA formed an Office of Environmental
Equity.16 In response to public criticism, the EPA changed the
name of the office to the Office of Environmental Justice in
The “equity” versus “justice” framing is more than mere
semantics. It represents the fundamental difference between the
concepts of “poison people equally” and “stop poisoning people,
period!” There is not a single mention in the movement-defined
Principles of Environmental Justice of the notion that the goal
is to simply redistribute environmental harms so that white
communities have their “fair share” of pollution.18 Even if this
“equity” vision were possible, the environmental justice move-
ment has put forth a much deeper analysis, based on phasing out
* Mike Ewall is the founder and director of the Energy Justice Network (www., a national support network for grassroots community groups
fighting dirty energy and waste industry facilities such as coal power plants,
ethanol plants, natural gas facilities, trash and biomass incinerators. Active
since high school in 1990, he is a national leader in the student and community
grassroots environmental movements. His work has led to many grassroots vic-
tories against polluters. Nationally, he has brought together networks of grass-
roots activists fighting coal plants and biomass incinerators. Having graduated
from the University of the District of Columbia law school in 2011, he is now a
barred Pennsylvania attorney. He can be reached at 215-436-9511 or mike@
inappropriate technologies that ought not exist in any commu-
nity. However, the EPA, and numerous state environmental agen-
cies bunted and co-opted the bolder “justice” agenda by setting
up offices and working groups around environmental “equity.”19
When the EPA and a number of state environmental agen-
cies cleaned up the titles of their programs, renaming them
“environmental justice,” they retained their “equity” agenda.
Today, governmental bodies and others who have followed their
lead universally define environmental justice as some version of
“fair treatment and meaningful involvement.” The EPA defines
environmental justice as:
the fair treatment and meaningful involvement of all
people regardless of race, color, national origin, or
income with respect to the development, implementa-
tion, and enforcement of environmental laws, regula-
tions, and policies. Fair treatment means that no group
of people should bear a disproportionate share of the
negative environmental consequences resulting from
industrial, governmental and commercial operations
or policies. Meaningful involvement means that: (1)
people have an opportunity to participate in decisions
about activities that may affect their environment and/
or health; (2) the publics contribution can influence the
regulatory agency’s decision; (3) their concerns will be
considered in the decision making process; and (4) the
decision makers seek out and facilitate the involvement
of those potentially affected.20
Without any real legislative teeth to back up these “equity
posing as justice” policies, environmental agencies have no tools
to even try to redistribute environmental harms. Rather, they use
these policies to try to look responsive to environmental jus-
tice concerns when trotting them out at government-sponsored
“environmental justice” conferences, public meetings and hear-
ings on pending pollution permits, and other forums.
As long as there is no blatant intentional racism to be found,
the “fair treatment” hurdle is deemed cleared, as the agencies
have no authority to act on the distributional equity of harms
concept in their “fair treatment” definition. The “meaningful
involvement” hurdle still looks, on the ground, like the usual
agency habit of holding a public hearing and ignoring/dismiss-
ing the comments before issuing pollution permits. The fourth
part of the “meaningful involvement” definition – that “deci-
sion makers seek out and facilitate the involvement of those
potentially affected” – is sometimes made real when exceptional
agency staff go the extra mile to ensure that the public knows
about a meeting or hearing. However, it is still far too frequent
that the outreach is so inadequate, or the meeting logistics made
so inconvenient, that no one from the impacted community even
shows up at these “environmental justice” meetings.21
The same year that the EPA changed the Office’s name to
“Environmental Justice,” President Clinton, on February 11th,
1994, signed Executive Order 12898, titled “Federal Actions
To Address Environmental Justice in Minority Populations and
Low-Income Populations.22 The Executive Order requires each
federal agency to develop an agency-wide environmental justice
strategy, sets up an interagency working group that reports to the
President, requires certain agency studies, and sets forth a public
participation plan.23
While White House-level recognition of environmental jus-
tice was a shot in the arm of the movement, the Order explicitly
states that it does not go beyond current law and creates no new
rights or remedies, procedural or otherwise.24 Nonetheless, the
Executive Order was helpful in a groundbreaking case before
the Nuclear Regulatory Commission (“NRC”) in 1997 – In
Matter of Lousiana Energy Services, L.P.25 – perhaps the only
case where an agency denied a permit to a polluting industry
because of racially discriminatory impacts in the siting process.
Louisiana Energy Services (“LES”) sought to build a uranium
enrichment facility between the tiny towns of Forest Grove and
Center Springs in rural Northern Louisiana’s Claiborne Parish.26
A grassroots community group, Citizens Against Nuclear Trash
(“CANT”), challenged the proposal’s permits in the adminis-
trative process before the Atomic Safety and Licensing Board
(“ASLB”) of the NRC.27 Founded by freed slaves after the Civil
War, the two towns (with a combined population of about 250)
were about 97% African-American.28 Their inhabitants lived
in grinding poverty, with no stores, schools, medical clinics,
The “equity” versus “justice” framing is more
than mere semantics. It represents the fundamental
difference between the concepts of “poison people
equally” and “stop poisoning people, period!”
or businesses in the towns, and no running water in many of
the homes.29 Over 69% of the black population of Claiborne
Parish earned less than $15,000 annually, 50% earned less than
$10,000, and 30% earned less than $5,000.30 Over 31% of the
black population in Claiborne Parish had no motor vehicles, over
10% lacked complete plumbing in their houses, and 58% lacked
a high school education.31 One would be hard-pressed to find
a more underprivileged community to target for such a facility.
To find a site for their uranium enrichment facility, LES
hired a company, Fluor Daniel, Inc., with extensive experience
in industrial facility site selection.32 In their siting process, they
had initially narrowed a list of potential sites to seventy-eight,
where the average percentage of black population within a
one-mile radius of each of the sites across sixteen parishes was
28.35%.33 Since the black population in Louisiana was about
32.5%, this was pretty fair to start.34 However, once the list of
potential sites was cut to thirty-seven, the average black popula-
tion rose to 36.78%.35 It rose again to 64.74% once the list of
sites was narrowed to six.36 At the end of the process, they man-
aged to pick the one site with the highest percent black popula-
tion of all seventy-eight examined sites (97.1%).37
LES admitted to doing an “eyeball” assessment of potential
sites.38 They admitted to eliminating sites from consideration
because they were close to “sensitive receptors” like hospitals,
schools, and nursing homes (thus eliminating communities
privileged enough to have such amenities) or because the site is
near a “very nice lake” with “nice homes, vacation and fishing,
hunting.”39 The ASLB found this evidence to be “more than suf-
ficient to raise a reasonable inference that racial considerations
played some part in the site selection process.”40 In a powerfully
worded decision, the ASLB stated, in part:
Racial discrimination in the facility site selection
process cannot be uncovered with only a cursory
review of the description of that process appearing in
an applicant’s environmental report. If it were so eas-
ily detected, racial discrimination would not be such
a persistent and enduring problem in American soci-
ety. Racial discrimination is rarely, if ever, admitted.
Instead, it is often rationalized under some other seem-
ingly racially neutral guise, making it difficult to ferret
out. Moreover, direct evidence of racial discrimination
is seldom found. Therefore, under the circumstances
presented by this licensing action, if the President’s
nondiscrimination directive is to have any meaning a
much more thorough investigation must be conducted
by the Staff to determine whether racial discrimination
played a role in the [enrichment facility] site selection
. . . [T]he Staff must conduct an objective, thorough,
and professional investigation that looks beneath the
surface of the description of the site selection process
in the Environmental Report. In other words, the Staff
must lift some rocks and look under them.41
The decision acknowledged that the obligations under the
Executive Order were new to the agency and that agency staff’s
primary responsibilities have historically been to evaluate tech-
nical concerns, not to apply the social science skills needed to
investigate whether racial discrimination played a part in a facil-
ity siting decision – skills that are far from the experience and
expertise of NRC staff.42 The ASLB’s decision concluded with
a determination that a staff investigation of the siting process,
to determine whether racial discrimination played a role in that
process, was essential to ensure compliance with the Executive
Order, and that the Final Environmental Impact Statement was
insufficient in other ways and needed to be revised.43
Such a strong decision was a welcome surprise, especially
coming from an agency whose very existence is financially tied44
to the survival of the notoriously racist nuclear industry, whose
uranium mining and nuclear waste disposal burdens fall almost
exclusively on black, Hispanic, and Native American communi-
ties.45 Though the victory over LES in Louisiana held,46 the legal
precedent was undermined on appeal.
On appeal to the NRC Commissioners, the Commission
reversed the ASLB’s requirement of an inquiry into racial dis-
crimination in siting, but affirmed its disparate impact ruling.47
In reversing the requirement of inquiry into racial discrimina-
tion, the Commission held that no “nondiscrimination direc-
tive” exists in Executive Order 12898 and that the National
Environmental Policy Act (the law requiring Environmental
Impact Statements on certain federal projects) is not “a tool for
addressing problems of racial discrimination.”48
As the LES case was playing out, the nation’s first attempt to
address environmental racism using Title VI of the Civil Rights
Act of 1964 was moving toward the U.S. Supreme Court, fresh
from an amazing victory in the Third Circuit.
The mostly African-American City of Chester, Pennsylvania
is home to the nation’s largest trash incinerator, a sewage treat-
ment plant that burns the county’s sewage sludge, a paper mill
that burns waste coal, numerous chemical plants and toxic waste
sites, and formerly hosted the nation’s largest medical waste
autoclave. It is surrounded on either side by oil refineries and
coal, oil and gas-fired power plants.49
In 1996, Chester Residents Concerned for Quality Living
(“CRCQL” – pronounced “circle”) sued the Pennsylvania
Department of Environmental Protection (“PADEP”) for issuing
a permit to Soil Remediation Systems (“SRS”), a company plan-
ning to build a facility to clean petroleum contaminated soil by
burning off the contaminants.50 This “soil burner” facility would
have been sandwiched between the trash and sewage sludge
Suit was brought in the Eastern District of Pennsylvania
under both sections 601 and 602 of the Title VI of the Civil Rights
Act of 1964.51 Section 601, codified as 42 U.S.C. § 2000d, pro-
vides that “[n]o 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 assis-
tance.52 Section 602, codified as 42 U.S.C. § 2000d-1, authorizes
and directs agencies, such as the EPA, which provide financial
assistance to state agencies like PADEP “to effectuate the provi-
sions of § 2000d of this title . . . by issuing rules, regulations,
or orders of general applicability which shall be consistent with
achievement of the objectives of the statute . . . .53
The complaint alleged that PADEP’s grant of the permit
violated: 1) § 601 of Title VI of the Civil Rights Act of 1964; 2)
EPAs civil rights regulations promulgated pursuant to § 602 of
Title VI; and 3) PADEP’s “assurance pursuant to the regulations
that it would not violate the regulations.”54 The District Court
quickly did away with the first cause of action, citing Supreme
Court precedent that § 601 applies only to intentional discrimi-
nation and that CRCQL failed to allege that PADEP intention-
ally discriminated when granting the pollution permit to SRS.55
The District Court dismissed the second and third claims on the
basis that, while there is a private right of action under § 601,
there is no such right under § 602.56
In Chester Residents Concerned for Quality Living v. Seif,57
the Chester residents appealed the ruling to the Third Circuit
Court of Appeals, focusing only on the second cause of action:
the core § 602 claim.58 Establishing important precedent, the
Third Circuit reversed the District Court’s ruling.59 The Third
Circuit panel found that the District Court misread the U.S.
Supreme Court’s fractured ruling in Guardians Ass’n v. Civil
Service Commission of New York City,60 falsely assuming that
it stood for the notion that there is private right of action under
§ 602.61
Instead, the Third Circuit recognized that the Supreme Court
had since recognized that Guardians affirmed 1) that a private
right of action exists under § 601 of Title VI, requiring plaintiffs
to prove discriminatory intent; and 2) that agencies may validly
promulgate discriminatory effect regulations under § 602.62 The
ruling did not, however, decide the issue of whether there is a
private right of action to enforce regulations promulgated under
§ 602.63 The Third Circuit stitched together two sets of opinions
in Guardians to infer that a five-justice majority would support a
private right of action under § 602.64 A dissent by Justice Stevens
(joined by Justices Brennan and Blackmun) concluded with a
statement that the plaintiffs “only had to show that the respon-
dents’ actions were producing discriminatory effects in order to
prove a violation of [the regulations].65 Justices White, writing
for the court, and Marshall, dissenting, both found it accept-
able for a plaintiff to bring a discriminatory effect case under §
601, so the Third Circuit inferred that they would find the same
acceptable under § 602.66 This five Justice-majority inference
wasn’t enough for the Third Circuit to hold that Guardians is
dispositive on the Chester case, since the Supreme Court had not
spoken directly to the issue.67
With nothing dispositive in Supreme Court precedent,
the Third Circuit looked at its own precedent.68 In doing so, it
found that the District Court misread Third Circuit precedent
in concluding that no private right of action exists under § 602
when, in fact, that case spoke only to whether a plaintiff must
exhaust administrative remedies under § 602 before bringing a
suit directly under § 601.69 With no precedent on the specific
question, the Third Circuit applied its own three-prong test for
determining when it is appropriate to imply private rights of
action to enforce regulations and found that there is a private
right of action under § 602.70
PADEP appealed to the U.S. Supreme Court.71 By the time
the case reached the highest court, PADEP had revoked the per-
mit for SRS, the permittee whose permit challenge formed the
basis of the case.72 Both sides, fearing unfavorable precedent,
asked the Supreme Court to declare the case moot, but PADEP
also asked the Supreme Court to vacate the Third Circuit deci-
sion, which – over the protest of CRCQL – the Supreme Court
did.73 In a one-sentence decision, the case was vacated as moot
with instructions to dismiss.74 After all this effort, Chester
residents had one less polluter to contend with, but impacted
communities around the country were left again with no federal
court precedent allowing a private right of action under Title VI
for allegations of discriminatory effects against federally funded
permitting agencies. Until Camden.
Some of the same Philadelphia attorneys involved in Chester
found opportunity to start over, setting precedent in the same
Circuit, across the river in Camden, New Jersey – a community
with a very similar story to that of Chester. In 2001, (Camden
I)75 was filed under similar theories as used in Chester.76
Like Chester, South Camden’s Waterfront South neigh-
borhood is surrounded by toxic industrial threats.77 The South
Camden lawsuit was over a permit granted by NJDEP to Saint
Lawrence Cement (“SLC”) for a facility that would grind blast
furnace slag, exposing the community to fine particulate matter
laden with toxic metals.78
In a lengthy, well-documented, and carefully thought-out
opinion, the District Court sided with the South Camden resi-
dents, concluding that:
(1) The NJDEP’s failure to consider any evidence
beyond SLC’s compliance with technical emissions
standards, and specifically its failure to consider the
totality of the circumstances surrounding the operation
of SLC’s proposed facility, violates the EPAs regula-
tions promulgated to implement Title VI of the Civil
Rights Act of 1964; and (2) Plaintiffs have established
a prima facie case of disparate impact discrimination
based on race and national origin in violation of the
EPAs regulations promulgated pursuant to § 602 of the
Civil Rights Act of 1964.79
As in Chester, the plaintiffs included a § 601 claim of inten-
tional discrimination, but didn’t back it up, focusing instead on
their § 602 disparate impact discrimination claim.80 After the
Supreme Court vacated the Third Circuit’s decision in Chester,
the Circuit revisited the issue of whether there is an implied pri-
vate right of action under § 602 of Title VI, finding in Powell v.
Ridge81 that such a right exists.82
That matter being settled law in the Circuit, the court moved
on to rule on whether mere compliance with existing environ-
mental laws and regulations is sufficient to meet the require-
ments of Title VI.83 In other words, even if a corporate polluter
would release pollution in amounts deemed acceptable, and
permitted under environmental regulations, could that polluter
still be found to be contributing to a violation of a community’s
civil rights under Title VI? This question strikes at the heart of
what environmental justice activists have complained about for
years. Environmental permitting agencies routinely give out pol-
lution permits that are calculated to allow only a certain number
of people to die of cancer. This permitting regime is widely criti-
cized for not accounting for vulnerable populations (children, the
elderly, fetuses, those with compromised immune systems) and
for looking at only one chemical exposure at a time. The exist-
ing permitting regime does not factor in the increased chance
of illness when one’s community is surrounded by dozens of
pollution sources, each exposing the community to a wide array
of pollutants that can even interact with one another to magnify
their health impacts.84 Industry and government officials pretend
that an industrial facility that stays within its permit limits means
that the facility is “safe” and thus not harming health. This is far
from the truth.
As the District Court framed the issue in Camden I: “This
case presents the novel question of whether a recipient of EPA
funding has an obligation under Title VI to consider racially
discriminatory disparate impacts when determining whether to
issue a permit, in addition to compliance with applicable envi-
ronmental standards.”85 The court found that an agency does
have such an obligation.86 To reach this conclusion, the court
looked at the fact that permitting agencies do not look at the
cumulative effects of permitting multiple polluters in a single
community.87 Since environmental laws and regulations are not
yet up to this task, the court held that it is appropriate for this
to be considered as part of a Title VI analysis in the permitting
The District Court also looked closely at the issue of
particulate matter (soot), since the EPA was in the process of
adopting stricter regulations on fine particulate matter, known as
PM-2.5.89 Regulations in effect at the time only covered PM-10
(larger soot particles), but a substantial body of science showing
major health impacts from the smaller PM-2.5 pollution caused
the EPA to propose more stringent regulations.90 At the time of
the case, these PM-2.5 regulations were not in effect and NJDEP
had no legal obligation to consider this sort of pollution in envi-
ronmental permitting. However, the body of science showing
harm existed and was enough to prod the EPA into regulatory
action. The District Court held it relevant to consider the issue
within the context of a Title VI disparate impact analysis.91
Environmental laws and regulations often take several
decades to catch up to what science tells us about the threat of
pollutants on health. This is largely due to the need for a “scien-
tific consensus” to line up enough dead bodies before regulatory
and political action against a pollutant is even possible, as well
as the reality of corporate campaign contributions, lobbying, and
lawsuits intended to block or delay implementation of new regu-
lations. Camden I’s novel “totality of the circumstances”92 use of
Title VI to shortcut the glacial environmental regulatory process
and apply modern science to community health burdens is a
huge benefit to impacted minority communities, but a dramatic
threat to the economic interests of corporate polluters.
On April 19, 2001, three days before Earth Day, the United
States District Court for the District of New Jersey granted a
preliminary injunction to the South Camden plaintiffs.93 The
court vacated SLC’s air pollution permits and enjoined the
cement company from operating its proposed facility.94 The
court when on to stipulate operations could not commence until
the NJDEP performed an appropriate adverse disparate impact
analysis in compliance with Title VI to the satisfaction of the
District Court.95 The Earth Week celebration lasted five days.
On, April 24, 2001, two days after Earth Day, this vic-
tory came crashing down as the U.S. Supreme Court ruled on
Alexander v. Sandoval.96 The case had nothing to do with envi-
ronmental matters, but did involve § 602.97 The high court ruled
that there is no private right of action under § 602, effectively
shutting down any litigation over racially disparate impacts
caused by federally-funded agencies, unless one can prove
intent.98 The 5-4 majority opinion, written by Justice Scalia,
focused on the idea that courts may no longer find that there is
a private right of action to enforce federal law unless Congress
intends such a right.99
When Title VI was enacted in 1964, the Court was in the
habit of creating private rights of action and providing remedies
as they found necessary to effectuate congressional purpose.100
This practice was abandoned in 1975 when the Supreme Court
created a test in Cort v. Ash,101 setting forth four factors to deter-
mine whether Congress intended for a private right of action to
exist under a statute:
(1) whether the plaintiff is one of the class for whose ben-
efit the statute was enacted;
(2) whether there is any indication of legislative intent,
explicit or implicit, either to create such a remedy or to
deny one;
(3) whether it is consistent with the underlying purpose of
the legislative scheme to imply such a remedy for the
plaintiffs; and
(4) whether the cause of action is one traditionally rel-
egated to state law.102
The Sandoval majority ignored most of the Cort v. Ash fac-
tors, focusing narrowly on part of the second factor where the
Court stated: “We therefore begin (and find that we can end) our
search for Congress’s intent with the text and structure of Title
VI.”103 The majority pointed to Touche Ross & Co. v. Redington
to back up their opinion that, “like substantive federal law itself,
private rights of action to enforce federal law must be created by
Congress.”105 While the Sandoval majority failed to point this
out, Touche Ross backs up their abuse of the Cort v. Ash factors
by stating that the “Court did not decide that each of these fac-
tors is entitled to equal weight.”106
The Sandoval majority concluded its Cort v. Ash analysis
by holding that the “rights-creating” language in § 601 (“no
person … shall … be subjected to discrimination”) is not present
in § 602 because § 602 “limits agencies to ‘effectuating’ rights
already created by § 601,” and that “the focus of § 602 is twice
removed from the individuals who will ultimately benefit from
Title VI’s protection.”107 Yet, as Justice Stevens pointed out in
a dissenting opinion, it makes sense that there is no “rights-
creating” language in § 602 since “it is perfectly obvious that
the regulations authorized by § 602 must be designed to protect
precisely the same people protected by § 601.”108
In his dissent, Justice Stevens first pointed out that the ques-
tion of a private right of action under § 602 should not even be
before the Supreme Court, since not a single Court of Appeals
has ruled that there is no such right.109 He listed eleven cases in
ten Federal Circuits where federal courts, all on the same page,
supported a private right of action under § 602; a twelth case
suggested that the question was still open.110
Second, Justice Stevens argued that the majority misinter-
preted Guardians. He pointied out, as the Third Circuit did in
Chester, that there were five justices supporting the notion that
“private parties may seek injunctive relief against governmental
practices that have the effect of discriminating against racial and
ethnic minorities.”111
Third, Justice Stevens argued that a proper analysis under
Cort v. Ash supports the notion that there is an implied private
right of action under § 602.112 Clearly, there is no doubt that the
plaintiff in a discriminatory impact case is one of the class for
whose benefit the statute was enacted, and it is consistent with
the underlying purpose of the legislative scheme to imply such a
remedy for the plaintiffs. Justice Stevens documented that there
was legislative intent – among proponents and opponents of the
Civil Rights Act of 1964 – that Title VI included a private right of
action for discriminatory impacts.113 The Supreme Court’s deci-
sion in Cannon v. University of Chicago114 found that Congress
intended a private right of action to enforce both Title IX of the
Education Amendments of 1972 (a gender discrimination statute
modeled on Title VI, and expected to be construed the same
way) and Title VI.115 Justice Stevens pointed out that the analysis
of Cort in Cannon “was equally applicable to intentional dis-
crimination and disparate impact claims” and that Cannon was,
in fact, a disparate impact case.116
Fourth, Justice Stevens argued that § 601 is not limited to
intentional discrimination, in contradiction to the majority which
claimed such a limitation was “beyond dispute”.117 He dissected
the Court’s decisions in Guardians and Regents University of
California v. Bakke118 and found that Bakke did not rule directly
on the matter and that Guardians mistakenly assumed that Bakke
Most significant to the resolution of the Camden case is
Justice Stevens’ argument that there is still private right of action
reaching § 602 under 42 U.S.C. § 1983.120 Section 1983 of the
Civil Rights Act of 1871 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.121 It is almost
comical in that, for all the wrangling a private right of action
under § 602, plaintiffs can still bring the same legal challenge by
simply invoking § 1983 to enforce rights created by regulation,
causing Justice Stevens to describe Sandoval as “something of a
The sporting continued in Camden I on April 24th, 2001.
Sandoval had been decided that morning. That afternoon, the
District Court asked the parties in Camden I to brief the follow-
ing two questions: (1) whether the claim could be brought as an
intentional discrimination claim under § 601 and (2) whether the
§ 602 claim could be maintained by invoking 42 U.S.C. § 1983,
as Justice Stevens suggested.123 Perhaps for the first time in any
federal court, the Camden I case raised the question of “whether
the same disparate impact regulations which can no longer
be enforced through a private right of action brought directly
under § 602 of Title VI, can be enforced pursuant to 42 U.S.C.
§ 1983.”124 The District Court upheld its April 19 decision and
injunction, finding that the disparate impact discrimination claim
can be brought under § 1983.125
As before, the victory was short-lived. The courtroom door
shut to civil rights plaintiffs in Sandoval was to be one in a series
of doors slamming shut, closing out opportunities for justice in
the courts. On appeal in the Third Circuit addressed the question
of whether a regulation can create a right enforceable through §
1983, in the absence of clear rights-creating language in the stat-
ute.126 Justice Stevens had argued in his Sandoval dissent that
the courts should apply Chevron deference in such situations,
allowing agencies to create rights in regulations when interpret-
ing broadly-worded statutes, unless the regulations are an unrea-
sonable interpretation of the statute.127 The Third Circuit did
not agree. They held that an administrative regulation could not
create a right enforceable under § 1983 unless the right can be
implied from the statute authorizing the regulation.128 Using the
Supreme Court’s Blessing v. Freestone test129 to see if the right
can be implied from the regulation adopted under § 602 and
enforced with 42 U.S.C. § 1983, they ruled that it could not.130
The “we won’t find any rights you can enforce unless
Congress clearly spelled them out for you” trend was made
harder the following year, with a 2002 U.S. Supreme Court rul-
ing in Gonzaga Univ. v. Doe.131 Gonzaga made the Blessing test
even harder to meet, requiring that Congress intend to create a
federal right, not merely intend the statute to benefit the plain-
tiff.132 Gonzaga boldly states: “We now reject the notion that our
cases permit anything short of an unambiguously conferred right
to support a cause of action brought under § 1983.”133
With this nail in the coffin of environmental justice litigation,
the courts have basically said: If you can’t prove the federally-
funded agency’s discrimination is intentional, all you can do is
to complain to the agency itself and ask them to hold themselves
accountable. Asking the fox to guard the henhouse has been as
fruitful as one might imagine.134 About 250 Title VI complaints
were filed with the EPAs Office of Civil Rights from 1993 to
2011, the vast majority of which were dismissed or rejected.135
The EPAs first decision on a Title VI complaint was in
1998, ruling on a complaint against Michigan’s environmental
agency for permitting Select Steel to build a new steel mill in
their predominantly African-American neighborhood of Flint,
Michigan.136 In their decision, the EPA found no discrimina-
tion.137 The EPA assumed that the proposed steel mill would be
in compliance with environmental laws, and held that complying
with environmental laws means that there would be no “adverse
effect” on the community.138 The EPA further held “[i]f there
is no adverse effect from the permitted activity, there can be no
finding of a discriminatory effect which would violate Title VI
and EPAs implementing regulations.139
The EPAs position in their Select Steel decision is that there
can be no violation of Title VI of the Civil Rights Act because
there is no violation of environmental laws.140 This contradicts
the Department of Justice’s interpretation that civil rights laws
are independent and that compliance is evaluated in light of
anti-discrimination requirements.141 It also contradicts common
sense, since environmental laws are designed to allow certain
levels of pollution – usually without factoring in other nearby
sources of pollution – and allowable pollution levels are often
based on what is technically and economically possible for an
industry to achieve, not on what levels are healthy for the com-
munity. The inevitable “adverse” affects on health can surely
have a discriminatory effect, even if pollution levels are within
permitted limits, as the District Court in Camden recognized.142
Even when you win, you lose. In August 2011, the EPA
finally issued an investigative report on a 1999 Title VI complaint
filed over disparate impacts of methyl bromide pesticide spray-
ing near grade schools predominantly serving Latino children in
California.143 In the only case where the EPA ever found a viola-
tion of Title VI,144 it failed to provide a meaningful remedy.145
After 12 years of delays, the EPA secretly negotiated a settle-
ment with the California Department of Pesticide Regulation,
without involving the plaintiffs, and settled for additional moni-
toring of methyl bromide near schools, and “outreach” by the
Department of Pesticide Regulation.146 The plaintiffs, and all
future school children won no real relief from this decision. The
EPA is supposed to withhold federal funding when it finds Title
VI violations.147 Settling in secret for crumbs when it finds its
first violation is not promising.
The Obama White House and EPA Administrator, Lisa
Jackson, while claiming to take environmental justice and civil
rights seriously, have permitted this awful decision under their
watch.148 EPA’s latest decision, in August 2012, confirms that
EPA – even under presumably favorable political leadership –
is not a place to find justice. The Center for Race, Poverty and
the Environment had to sue the EPA to finally get the agency to
decide on a case filed eighteen years earlier, in 1994.149 Only
when the court imposed a deadline on the EPA, did the EPA
finally act on complaint – by dismissing it.150 The complaint
alleged discrimination with regard to the fact that all three of
California’s hazardous waste landfills are in low-income Latino
communities.151 The EPA absolved the federally-funded state
agency that permitted the facilities because they were not actu-
ally involved in siting the facilities.152 Such an interpretation is
quite dangerous, since state permitting agencies rarely pick the
sites, but do decide whether to grant permits for where corpora-
tions seek to build polluting facilities. Stunningly, the EPA also
found that the three hazardous waste landfills did not harm public
health despite unexplained birth defect clusters and high infant
mortality rates.153 In coming to this conclusion, the EPA failed to
evaluate the impact of diesel trucks coming to the facilities, even
though the agency had awarded a California group, Greenaction,
a grant to work with one of these communities specifically on
diesel pollution issues.154
Such twelve to eighteen year delays are not uncommon.
The EPA is required to accept for investigation or deny a Title
VI complaint within 20 days, and within 180 days of accepting
one, must issue preliminary findings from its investigation.155
However, many complaints have languished fifteen years or more
without any agency response.156 In 2003, the U.S. Commission
on Civil Rights found that the EPA lacked an effective system
for investigating the growing backlog of complaints.157 In 2009,
the Ninth Circuit Court of Appeals ruled against the EPA in the
first case related to the backlog of Title VI complaints, noting
a “consistent pattern of delay by the EPA” and that the delays
in that case “appear, sadly and unfortunately, typical of those
who appeal to [the EPA] to remedy civil rights violations.”158
In 2011, a Deloitte Consulting LLP report on the EPAs Office
of Civil Rights showed that their backlog problems continue.159
After several years of frustration with courts refusing to hear
environmental racism claims on the merits and the EPA failing to
respond to Title VI complaints, some environmental justice activ-
ists have sought to legislatively “fix” Sandoval. In 2006, Senator
Menendez (D-NJ) introduced S. 4009, the Environmental Justice
Enforcement Act of 2006.160 In 2008, on the seventh anniversary
of the Sandoval ruling, Senator Menendez reintroduced the bill
as S. 2918, and Congresswoman Solis (D-CA) introduced the
same, as H.R. 5896.161 The legislation has not been reintroduced
in either the 111th or 112th Congress (2009-2012).
The Environmental Justice Enforcement Act essentially
overturns key findings in Sandoval and a whole string of cases
preceding it by creating a clear statutory right to sue for dis-
parate impacts under § 601.162 Section 601 would be amended
so that a recipient of federal funds accused of discriminatory
impact may only escape liability if they can “demonstrate that
the challenged policy or practice is related to and necessary to
achieve the nondiscriminatory goals of the program or activity
alleged to have been operated in a discriminatory manner.163 A
plaintiff may also prove discrimination by demonstrating that a
less discriminatory alternative policy or practice exists, and that
the recipient of federal funds refuses to adopt such alternative
policy or practice.164 The legislation also clearly spells out rights
to recovery.165 Plaintiffs bringing claims based on disparate
impact may recover equitable relief, attorney’s fees (including
expert fees), and costs.166 Those bringing claims of intentional
discrimination may also recover compensatory and punitive
damages, though punitive damages are not available against
governmental bodies.167
While framed as an environmental justice bill, the
Environmental Justice Enforcement Act is not limited to environ-
mental claims. It would reopen doors to private disparate impact
claims of any sort that are “on the basis of race, color or national
origin.”168 Perhaps if the rest of the civil rights movement were
aware of this, or if the Obama Administration’s actions were as
serious about combating discrimination as his words, the legisla-
tion would have been reintroduced and made more of a priority.
While passage of the
Environmental Justice
Enforcement Act would
be a huge victory for
civil rights, its impact on
achieving environmental
justice would be fairly
small in the big picture. It
is hard for most commu-
nity groups to bring Title
VI cases without free legal
help, which the groups in
Chester and Camden had.
The number of communi-
ties that can bring claims
is also limited, since such
cases are only likely to
succeed where there are
blatant racial disparities,
comparable to Chester and Camden. Many other “environmen-
tal justice” communities don’t share such stark demographic
disparities, and some are likely to be seen as arguable, such as
where major polluting facilities are planned in poor, rural white
areas adjacent to prisons housing mostly racial minorities, as is
the case in a community near Gilberton, Pennsylvania.169 Since
Title VI provides no protection for class discrimination, many
impoverished and heavily impacted communities, like those suf-
fering in West Virginia’s mountaintop removal mining regions,
are left without legal protection. Some have argued that the
future direction of environmental justice law needs to include
protections for victims of economic discrimination.170
Even with a private right of action on race and class discrim-
ination, the legal tool lends itself to a one facility at a time, one
community at a time, solution. With the systematic onslaught of
pollution and unnecessary industries, it would be more appro-
priate for the environmental justice movement to be pushing
for broader policy-level changes, not unlike the Environmental
Justice Enforcement Act’s “prove discrimination by demon-
strating that a less discriminatory alternative policy or practice
exists” idea – but one where people could sue if the government
permits a company to operate a technology where a less pol-
luting alternative technology or practice exists. Currently, under
the National Environmental Policy Act,171 certain federally
funded or sponsored projects must do an Environmental Impact
Statement that is supposed to include an analysis of alternatives,
but there is no requirement that the project proponents actually
adopt any of the better alternatives they write up in the impact
Until we see the day when these broader policies are politi-
cally possible, we must take advantage of every opportunity to
protect every community from environmental harm – especially
those that are made easy targets because of actual or perceived
political powerlessness. A renewed Title VI would be a weak
tool toward “justice.” A wave of lawsuits would, at best, start
to redistribute environmental harms, with some polluting proj-
ects turning their sights
on communities with a
larger white population.
Any distributional equity
would mostly pertain to
locating new polluters, as
such litigation isn’t likely
to dislodge and relocate
existing industries.
When corporate pol-
luters are chased out of a
community, most give up
after targeting one or two
other communities. Some
are more persistent. In
1998, a company named
PhilPower Corporation
sought to build a wood
waste incinerator in
Delaware.173 They targeted one community after another – ulti-
mately targeting six communities.174 Most were communities
of color, but when they tried to set foot in a suburban white
community, that was enough to get state legislation moving that
ultimately banned incinerators statewide in 2000.175
This is an ideal example of where equity can be a step
toward justice. However, more typical examples from other,
more famous, environmental justice battles didn’t turn out so
well. In the LES example, the company tried three more times,
twice in whiter communities in Tennessee, where they were
defeated both times, and ultimately landed in a low-income,
forty-five percent Hispanic community in New Mexico.176
While this is more “equitable” than the company’s initial target,
it is still environmental racism and it will still do grave harm to
the environment and the people who live in the region. Another
notorious example, well-known in the environmental justice
movement, is that of Shintech – a Japanese company that sought
to built a PVC plastics factory in Convent, Louisiana, in a region
known as “cancer alley” due to the high concentration of petro-
leum refineries, chemical, and plastic production facilities.177
While the battle against Shintech stopped them from locating in
Convent, they ultimately got a facility built – albeit smaller – in
a largely white community in another county in the region.178
Since Title VI provides
no protection for class
discrimination, many
impoverished and heavily
impacted communities … are
left without legal protection.
Given unequal routes of exposure to toxic pollutants, even
those released in white communities disproportionately impact
people of color. Some racial minorities consume more fish
and thus suffer higher exposure to toxic mercury, dioxins and
PCBs.179 Dioxins and PCBs travel quite far, accumulating at
the Earth’s poles. Indigenous people living in the Arctic Circle
subsist necessarily on a diet heavy in animal fat, where these
toxins accumulate at high doses, with one of the largest sources
having been a trash incinerator in an environmental justice com-
munity in Harrisburg, Pennsylvania. In both cases, the racially
disparate exposures would occur even if every smokestack were
in a nearby affluent white community, as the pollutants (and fish)
travel before the uneven exposures are felt.
Water fluoridation is another example where toxic expo-
sure is inherently unequal. While urban communities are
most often fluoridated, disproportionately exposing people of
color to the hazardous chemicals used, the chemicals – even
within the same community –impact people of color more than
whites. Fluoride helps the body absorb lead, which affects the
brain in ways that diminish IQ and contribute to learning dis-
abilities, violent behavior and increased likelihood of cocaine
addiction. The fluoride-induced increase in lead exposure is
most pronounced in blacks, and also affects Hispanics more
than whites.180
The “environmental equity” goal of redistributing harms
is not only impossible, but is largely undesirable. For the worst
environmentally harmful industries, such as nuclear reactors,
combustion-based power plants, incinerators, and the like there
are alternatives that are generally cheaper, zero-emission, and
which produce far more jobs. For these types of harmful indus-
tries, it’s proper to say “Not in Anyone’s Backyard.” Such a posi-
tion fits with the Principles of Environmental Justice.
The equity concept only belongs to bringing fairness in the
distribution of socially beneficial things (such as access to parks
and public transit, or availability of fresh produce in urban “food
deserts” – each of which have been tackled as environmental
justice issues), and in socially necessary facilities that carry
some risk (such as recycling facilities, where the siting should be
made more equitable and the impacts should be insolated from
residential land uses).
Given this, it does not make sense to pose legislative
solutions in terms of environmental justice. Most “environ-
mental justice” policies have actually been “equity” policies
weakly designed to redistribute harms. Such policies usually
just focus on increased “public involvement,” but some aim
to establish protocols that discourage agency permitting of
new polluting facilities in designated “environmental justice”
While it’s good to discourage the concentration of new pol-
luters where existing polluters are already concentrated – mainly
low-income communities and communities of color – it hardly
goes far enough. There is still the matter of existing polluters,
and no one has seriously proposed uprooting industries in order
to relocate some in wealthy, white suburbs. Clearly, that would
prove politically impossible, and any such effort, even if legal,
would be economically ridiculous and politically divisive. If
there were economic resources (and political will) to relocate
polluting industries, then those funds would be better put into
replacing the polluting technology with non-pollution alterna-
tives. It is more strategic to help more privileged communities
understand how they are also affected by pollution, and to use
that awareness to create a solidarity to work toward broader
Policies designed to redistribute beneficial things (parks,
groceries, access to public transit, health care, schools...) are
good and can be honestly framed as equity policies. A law
designed to ensure equitable enforcement of environmental laws
would be most helpful, and would also fairly fall in the “equity”
Policies that are truly about environmental justice are
unlikely to be framed in such terms, as they would look like
laws that help everyone by transitioning from various pollut-
ing practices to clean ones. Examples include laws replacing
toxic chemicals with safe alternatives, banning incineration, or
removing dirty energy subsidies. Such laws would most help the
communities of color who suffer the disproportionate impacts,
but the laws themselves would not need to be framed in terms
If there were economic resources (and political will)
to relocate polluting industries, then those funds
would be better put into replacing the polluting
technology with non-pollution alternatives.
of environmental justice or with any race-based language. This
is just as well, and advisable, considering the misguided “color-
blind” approach that courts have taken with such issues as affir-
mative action.
As we sharpen legal tools to achieve environmental justice
for all, we must not sell short and settle for equity of harms
disguised as justice. As Martin Luther King, Jr. knew, injustice
anywhere is a threat to justice everywhere.181
1 For the full-length version of this article, see
2 Environmental Justice- History, AVOICE,
environmental/history.html (last visited Nov. 20, 2012).
3 See generally Robert D. Bullard et al., Toxic Wastes and Race at Twenty:
Why Race Still Matters After All These Years, 38 ENVTL. L. 371, 373-77 (2008)
(tracing the history of environmental justice from the 1987 United Church of
Christ study, Toxic Wastes and Race in the United States, through this new
1987-2007 (2007), available at; Bradford C.
Mank, Environmental Justice and Title VI: Making Recipient Agencies Justify
Their Siting Decisions, 73 TUL. L. REV. 787, 790 n.1 (1999) (compiling a list of
studies dating to 1983). Additional studies available at:
4 See Mank, supra note 3, at 792 (concluding in the review of many studies
that “there is credible evidence that minority groups experience significant
discrimination in some areas of the country”).
5 See Bradford C. Mank, Environmental Justice and Discriminatory Siting: Risk-
Based Representation and Equitable Compensation, 56 OHIO ST. L.J. 329, 334-40
(1995) (examining studies on siting of waste sites and citing many that conclude
that race is a more significant indicator of siting than socioeconomic factors).
available at
(displaying data on geographic distribution of race, education, unemployment,
and age with respect to air and water pollution); Distribution of Environmental
Burdens in Delaware County, SCORECARD
paring distribution of environmental burdens by race, income, poverty, child-
that the ratio of burden is higher based upon race than any other indicator).
MANAGEMENT BOARD 1, 4-6 (1984), (failing to
specifically mention racial criteria, but this study, aimed to help the state site 43
trash incinerators, spelled out numerous other criteria for communities “more”
or “less” likely to resist siting of “major facilities” like trash incinerators; of the
three that were ultimately built, all were in low-income Hispanic communities).
In another example, Epley Associates, hired in North Carolina to help site a
nuclear waste dump, did a window-survey of communities and suggested that
specific communities be considered or not based on race and class factors. See
Environmental Research Foundation, Nuclear Industry Discovers Solution to
Waste Problem: Bribery and Deception, RACHEL.ORG (Nov. 26, 1991), http://
see also Michael Heiman, Waste Manage-
ment and Risk Assessment: Environmental Discrimination through Regulation,
17 URBAN GEOGRAPHY 400 (1996).
9 Id. (setting an agenda that stood for human rights, democratic community
decision-making, education, women’s and workers’ rights, and health care,
while standing against imperialism, militarism, corporate abuses, and toxic and
nuclear production).
(last visited Jan 17, 2013).
11 Id. at 1.
12 Environmental Justice – History, supra note 2.
13 Environmental Justice – Basic Information, ENVTL. PROT. AGENCY, http:// (last visited Jan.
17, 2013).
14 Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide
in Environmental Law, NATL L.J., Sept. 21, 1992, at S2,
ej/nlj.pdf (last visited Jan. 17, 2013).
15 Environmental Justice – Frequently Asked Questions, ENVTL. PROT. AGENCY,
ej/resources/faqs/index.html (last visited Nov. 20, 2012).
16 Id.
17 Environmental Justice – History, supra note 2; Heiman, supra note 7, at
418, n. 13.
19 See Environmental Justice – Basic Information, supra note 13 (conflating
the terms justice and equity).
20 Id. (emphasis added).
21 At three “environmental justice” meetings held in Pennsylvania, that this
author is personally familiar with, two of them (in Philadelphia and Harrisburg)
involved such poor community outreach that no one in the community showed
up to speak, and in Erie, Pennsylvania, where the world’s largest tire incinerator
was proposed next to housing projects in the city, the “environmental justice”
meeting was held—not at the high school within walking distance, where the
polluter held its initial meeting—but at a suburban school five miles away,
where no one in the nearby community of color managed to attend.
22 Exec. Order No. 12898, 3 C.F.R. 859 (1994), reprinted as amended in
42 U.S.C. § 4321 (2011),
23 Id. §§ 1-102, 1-103, 3-301, 5.
24 Id. § 6-609.
25 45 N.R.C. 367 (1997).
26 Id. at 371.
27 Id. at 370.
28 Id. at 371.
29 Id.
30 Id.
31 Id.
32 Id. at 376-78.
33 Id. at 392.
34 Louisiana, U.S. CENSUS BUREAU,
table/1.0/en/DEC/00_SF1/DP1/0400000US22 (last visited January 15, 2013).
35 45 N.R.C. at 371.
36 Id.
37 Id.
38 Id. at 395.
39 Id. at 387-88.
40 Id. at 391.
41 Id.
42 Id. at 391-92.
43 Id. at 412.
44 Approximately 90% of the Nuclear Regulatory Commission’s funding
is legally mandated to come from fees assessed to nuclear facility operators,
creating the incentive for Commission staff to keep the industry open if they are
to keep their jobs. See License Fees, NRC.GOV,
45 See, e.g., Radioactive Racism: The History of Targeting Native American
Communities with High-Level Atomic Waste Dumps, PUB. CITIZEN, http://www. (last visited Nov.20, 2012) (docu-
menting incidents which indicate that Native Americans have “disproportion-
ately borne the brunt of the impacts from the nuclear fuel chain over the past
60 years”).
continued on page 55