The Form and Substance of Environmental Justice: The Challenge of Title VI of the Civil Rights Act of 1964 for Environmental Regulation

Abstract

Many concerned about environmental justice issues have long seen EPA's Title VI disparate impact regulations as a key component of any larger regulatory solution to environmental discrimination and distributional inequities. Since the regulations do not require proof of discriminatory intent in order for federal intervention to be justified, activists have been prodding EPA to use it more aggressively as a tool to address such discrimination and inequities in environmental regulation and, in particular, pollution permitting. Unfortunately, EPA's efforts, including its recently published draft guidance for investigating discriminatory impact complaints under its Title VI regulations, have been severely criticized by activists. That is puzzling because in implementing its Title VI guidance, EPA has utilized a framework for protecting civil rights that has been used widely by other agencies in the past. These difficulties, similar to those it has encountered in its other environmental justice efforts, can be traced largely to the tensions in the regulatory premises inherent to environmental law and civil rights law. EPA's Title VI Guidance seeks to combine these premises without having resolved the tensions. Whole-sale importation of civil rights doctrine into environmental regulation is unlikely to be successful in addressing the concerns raised by the environmental justice movement unless some key characteristics of the environmental regulatory framework are changed. At the same time, modern understandings of discrimination and environmental degradation problems share an important similarity that offers significant opportunities for EPA to utilize its regulatory experience more effectively to address environmental justice concerns. Title VI can serve an important function within such efforts to adjust both the form of EPA's regulatory approaches as well as the substantive focus of regulatory solutions. Ultimately, for EPA to deal with environmental justice successfully, it will require regulatory approaches that are much more particular about which aspects of environmental law and of civil rights law to combine.