Environmental Justice and Title VI: Making Recipient Agencies Justify Their Siting Decisions

Title VI prohibits federal agencies from providing funds to state or local agencies that discriminate. Environmental justice advocates have filed over fifty Title VI complaints with the EPA alleging that state or local environmental agencies have granted permits that will cause disparate impacts against minority groups. In February 1998, the EPA promulgated an Interim Guidance on Title VI to help the agency resolve these complaints. A wide range of state and local officials has criticized the Guidance because its vague definition of disparate impact may give the EPA too much discretion to find discrimination. This Article demonstrates, however, that the Guidance fails to provide sufficient protection for minority groups. First, EPA should place the burden on recipient agencies to demonstrate that no less discriminatory alternative exists that is comparably effective. Second, the recipient agency and permittee should have the burden of showing that any proposed mitigation measures will be effective. Third, the EPA or recipients should offer technical assistance, including grants, to community groups and complainants. Finally, EPA should encourage states to adopt procedures to promote early and effective participation by minority and other groups to avoid controversies that lead to Title VI complaints