Title VI of the Civil Rights Act has unrealized potential to correct the racialized distribution of environmental hazards. The disparate impact regulations implementing this sweeping statute target the institutional discrimination that characterizes environmental injustice. Agency decisions routinely deny claims that federal funds are contributing to projects that disproportionately pollute minority communities, allegedly in violation of Title VI disparate impact regulations. These dismissals are effectively final, as trends in civil rights jurisprudence have essentially foreclosed would-be litigants' opportunities for meaningful judicial review. Their last remaining avenue for recourse is to trigger an arbitrary and capricious review of agency actions, but the standard judicial deference afforded to agency decisions has made this type of challenge exceedingly difficult to win.
Courts could revive Title VI's environmental justice potential by tailoring their judicial review of agency decisions challenged as arbitrary and capricious. This would entail probing agencies' environmental decisions to ensure conformity with the Civil Rights Act. Such heightened scrutiny would recognize that environmental justice claims engage two areas of law undergirded by different values and analytical techniques. And it would be consistent with courts' existing justifications for scrutinizing particular agency decisions, within an administrative law regime normally defined by deference.
Reviving the Environmental Justice Potential of Title VI Through Heightened Judicial Review,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol90/iss3/5