Environmental Racism Claims Brought under Title VI of the Civil Rights Act

Article excerpt

"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. …