Claims of racial discrimination brought by environmental justice communities largely have been unsuccessful because establishing intentional discrimination under the Equal Protection Clause in this context is difficult. Adversely impacted communities have used civil rights statutes such as Title VI of the Civil Rights Act of 1964, which allows proof of a violation on the basis of discriminatory impact as well as discriminatory intent. Due to the U.S. Supreme Court's 2001 decision in Alexander v. Sandoval, which precludes a direct private cause of action under Title VI's disparate impact enforcing regulations, communities have turned to administrative agencies for enforcement of the regulations under 42 U.S.C. Section 1983, bolstered by President Clinton's Executive Order on Environmental Justice. Exec. Order No. 12,898, February 1994.
A recent case, South Camden Citizens in Action v. New Jersey Department of Environmental Protection, unfortunately illustrates the risks of that strategy. Despite the district court's finding of an adverse, racially disparate impact from the siting of a cement recycling plant in an environmentally devastated low-income community of color, the Third Circuit ruled that Title VI's disparate impact regulations were not enforceable under Section 1983. The Supreme Court refused to hear the case in June 2002. Presently, the split in the circuits on this point means that most environmental justice communities do not have this legal remedy available to them. (The Third, Fourth, Ninth, and Eleventh Circuits have precluded such claims, but the Sixth and D.C. Circuits have allowed them.)
Impacted communities have looked to the EPA in particular for relief against state environmental agency permitting practices that allow more pollution generating facilities in already overburdened minority communities. During the past ten years, more than 100 Title VI civil rights administrative complaints were lodged with the EPA's Office of Civil Rights. Thus far, only about fourteen have been decided on the merits, all finding in favor of a state regulatory agency charged with discriminatory conduct (twelve finding no adverse impact, two finding no intentional discrimination). The methodology used by the EPA in investigating the claims and determining a disparate impact is controversial, and largely to blame for the failure of these claims at the administrative level.
The ongoing Texas case of Miller v. City of Dallas, however, has found success at the early stages of litigation, with a federal district court denying a motion for summary judgment by drawing extensively on the city's long history of discriminatory zoning practices and their ongoing impacts.
As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.3.