Environmental Justice: Origins, Background, and Site Selection Considerations – Part I: The Statute

Environmental justice is not a new concept, but it is one that promises to receive renewed and vigorous attention in the Biden Administration. On his first day in office, Mr. Biden issued an Executive Order requiring the federal government to advance and prioritize environmental justice. Mr. Biden has selected a committed advocate as the head of EPA who has promised a pronounced emphasis on environmental justice concerns.

As a result, it is a good time to understand the legal underpinnings of environmental justice claims, the current EPA approach to investigating complaints regarding environmental justice, and steps that may be taken during site selection to minimize or eliminate serious claims regarding environmental justice.

The article contains five parts:

Part I: The Statute

Part II: The Executive Order and EPA’s Regulations

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part IV: EPA Guidance – The Toolkit

Part V: Considerations in Site Selection

Part I: The Statute

The Civil Rights Act of 1964 contains multiple titles designed to address discrimination based on race, color, and national origin. Title VI, codified at 42 U.S.C. §2000d, et seq., has been invoked to support claims of discrimination in environmental permitting. Generally, Title VI prohibits discrimination in programs and activities receiving federal financial assistance and contains two main provisions: Section 601 and Section 602.

Section 601 simply states: “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.” 42 U.S.C. §2000d.

The United States Supreme Court has reviewed Section 601 over the years and has made two important points. First, it is “beyond dispute that private individuals may sue to enforce §601.” Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 1516, 149 L.Ed.2d 517 (2001). Second,

Section 601 “prohibits only intentional discrimination.” Sandoval, 532 U.S. at p. 280. Indeed, “Title VI itself directly reach[es] only instances of intentional discrimination.” Sandoval, 532 U.S. at p. 281, citing Alexander v Choate, 469 U.S. 287 (1985).

Establishing discriminatory intent or purpose “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266 (1977). Disproportionate impact is “not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.” Arlington Heights, 429 U.S. at p. 265, citing Washington v. Davis, 426 U.S. 229 (1976). Importantly, “impact alone is not determinative, and the Court must look to other evidence.” Arlington Heights, 429 U.S. at p. 266. Other factors or evidence can include: the historical background of the decision, the specific sequence of events leading up to the decision, departures from the normal procedural sequence, departures from the normal substantive standards, and the legislative or administrative history of the decision. Arlington Heights, 429 U.S. at pp. 267 – 268.

Section 602 states that each Federal department and agency which extends Federal financial assistance to any program or activity “is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. §2000d-1. However, the Supreme Court has found a very important limitation. In Sandoval, the Supreme Court held: “Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under §602.” Sandoval, 532 U.S. at p. 293. Thus, unlike Section 601, a private litigant does not have the right of a private right of action to enforce regulations promulgated pursuant to Section 602.

Although Congress provided the authority to issue regulations, it also identified the method of enforcement of “any requirement adopted pursuant to this section.” 42 U.S.C. §2000d-1. Initially, no action may be taken until the Federal department or agency providing the assistance “has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” Then, there must be “an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement.” Only then may the Federal department or agency providing the assistance terminate, refuse to grant, or refuse to continue assistance under such program or activity. There is a catch-all allowing compliance to be affected by “any other means authorized by law.” 42 U.S.C. §2000d-1.

Section 606 defines “program or activity” as, among other things, “all of the operations of … a department, agency, special purpose district, or other instrumentality of a State or of a local government … any part of which is extended Federal financial assistance.” 42 U.S.C. §2000d-4a. Under this provision, the operations of a state environmental protection agency would be included within the definition of “program or activity.” Further, the operations of the whole agency are a “program or activity” if “any part” of the agency “is extended Federal financial assistance.”

Finally, Title VI was amended in 1986 to remove claims of sovereign immunity by a State. A State “shall not be immune … from suit in Federal court for a violation of … title VI of the Civil Rights Act of 1964.” 42 U.S.C. §2000d-7. In other words, a State can be sued in federal court under Title VI. Remedies available for a violation by a State are available to the same extent as a claim against any public or private entity other than a State.

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