[CPEO-BIF] New Jersey Environmental Justice Opinion and Effect of U.S. Supreme

[dgraham@baker-hostetler.com]

At Tony Chenhansa's request, I am forwarding an e-mail prepared by Bill Funk
of the Lewis & Clark Law School to the cpeo-brownfields subscribers.  It
should assist everyone in understanding the effect of the U.S. Supreme Court
decision on the New Jersey opinion.  David Graham

-----Original Message-----
From: Bill Funk [mailto:funk@LCLARK.EDU] 
Sent: Tuesday, April 24, 2001 7:04 PM
To: ENVIRON-ABA@MAIL.ABANET.ORG
Subject: Re: For those following developments in the area of
environmentaljustice, today's decision of the Unite


Alexander v. Sandoval not only eliminates any private action under Title VI
regulations for disparate impact discrimination (and thereby erasing the
recent NJ district court case), it also places in grave doubt the disparate
impact discrimination regulations themselves.
The Court assumed for purposes of argument that those regulations were
valid, and went out of its way to make clear this was just an assumption for
purposes of this litigation, but its analysis as to why the regulations
could not support a private right of action suggests that they are simply
not valid.  The Court stated that Section 601, which prohibits only
intentional discrimination, creates a private right of action on its own
terms and for regulations which likewise prohibit intentional
discrimination.   The Court then said that Section 602, under which the
disparate impact regulations were supposedly adopted, cannot authorize a
private right of action for any activity not unlawful under Section 601.
If, however, the disparate impact regulations adopted pursuant to Section
602 are not closely enough related to Section 601 to support a private right
of action authorized by Section 601, it is doubtful whether they are closely
enough related to Section 601
to be valid at all, because Section 602 only authorizes agencies to issue
rules "to effectuate the provisions" of Section 601.  Moreover, the Court's
14th Amendment Section 5 jurisprudence is likely to be transplanted into the
terms of Section 602.  That is, while Congress is not precluded from
prohibiting actions that are not themselves violative of the 14th Amendment
(i.e., not precluded from prohibiting actions having a disparate impact
instead of merely those that are intentionally discriminatory), any such
prophylactic congressional laws (or agency rules under Title VI) must be
congruent and proportional to actual violations found to exist.  Under this
standard all of EPA's disparate impact regulations would fail.

Bill Funk
Lewis & Clark Law School


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