"Not in my backyard!" This simple statement and the vigorous efforts to enforce it have resulted over the last sixteen years in a growing movement in minority communities in search of what has been termed "environmental justice." It is claimed by activists, and proven in numerous studies, that minorities are more likely to be affected by the siting of hazardous waste facilities and the permitting of other hazardous waste producers than are whites. The causes of these inequities are neither uniform nor easily identifiable. Unfortunately, remedies may be equally elusive. Lack of resources, political power, and practical knowledge have proven all too often to be insurmountable obstacles to the resolution of conflicts over the siting of hazardous waste producers or handlers.
Civil rights claims based on the Equal Protection Clause of the Constitution have proven particularly ineffective because discriminatory intent is so difficult to establish. Title VI of the Civil Rights Act of 19644 and the Environmental Protection Agency's ("EPA's) implementing regulations have recently been utilized as a potential alternative to equal protection claims. During the 1998 term, however, the United States Supreme Court vacated the Third Circuit's decision in Chester Residents Concerned For Quality Living v. Seif, the first decision recognizing an implied private right of action under the EPA's regulations. Private citizens' groups are now faced with uncertainty on their ability to file private environmental justice actions without evidence of discriminatory intent.
This comment examines the environmental justice issue with an eye toward establishing the viability of Title VI as a tool for achieving some measure of protection for minority communities. Specifically, Part II provides a brief overview of the environmental justice problem, discussing both its chronological development and its substantive elements. Part III examines the traditional methods of recourse in environmental justice: claims brought under environmental laws and claims brought pursuant to the Equal Protection Clause and 42 U.S.C. § 1983. Part IV introduces Title VI and the EPA's implementing regulations as an alternative to equal protection challenges. Part V introduces the reader to Chester, Pennsylvania, and provides initial procedural history for Chester Residents Concerned for Quality Living v. Seif. Part VI then provides an analysis of the Third Circuit's reasoning in Seif, identifying the rationale for an implied private right of action within the EPA's regulations. Next, Part VII examines subsequent litigation addressing the private right of action. This Comment then concludes by recognizing the growing trend in courts across the country allowing disparate impact claims under Title VI and associated implementing regulations, and urging the utilization of these provisions in addition to tools already in place for addressing environmental justice concerns.
"Environmental Justice: Is Disparate Impact Enough?,"
Mercer Law Review: Vol. 50:
4, Article 17.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol50/iss4/17