Is There a Private Cause of Action Under EPA's Title VI Regulations?: The Need to Empower Environmental Justice Plaintiffs
Bradford C. Mank
University of Cincinnati - College of Law
Columbia Journal of Environmental Law, Vol. 24, pp. 1-61, 1999
In Guardians Ass'n v. Civil Service Commission, 463 U.S. 582 (1983), The Supreme Court recognized a private right of action under Section 601 of Title VI if a plaintiff proves intentional
discrimination by a recipient of federal funds. The Court also held that federal funding agencies may promulgate regulations under Section 602 of Title VI that prohibit recipients from actions that promote disparate impact discrimination. In Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), the Third Circuit held that Section 602 implies a private right of action to enforce agency regulations prohibiting disparate impact discrimination by recipients of federal funds. The Supreme Court granted certiorari to decide this issue, but later vacated the case as moot because the Commonwealth of Pennsylvania revoked the disputed permit after it had expired and the permit applicant abandoned the proposed project.
Nevertheless, in light of the increasing number of "environmental justice" claims alleging that state environmental agencies receiving federal funding have taken actions that cause disparate impact discrimination that violates EPA's Title VI regulations, it is likely that the Supreme Court will have to address whether a private right of action exists under Section 602 to enforce agency implementing regulations. In recent years, the Supreme Court has placed an increasingly heavy burden on plaintiffs to demonstrate that the original enacting Congress intended to create a private right, or a subsequent Congress explicitly amended the statute to do so. There is insufficient evidence in Title VI's legislative history or amendments to support a private right under the Supreme Court's current test for implying private rights of action. However, there is a reasonable argument that courts should apply the more lenient test used in Guardians and Cannon v. University of Chicago, 441 U.S. 677 (1979), inferring a private right of action under Title IX, in determining whether a private right of action exists under Section 602 because it would inconsistent to apply a more stringent test for inferring a private right under Section 602 than under Section 601.
Date posted: November 29, 1999