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APPENDIX B IMPLICATIONS OF RECENT ENVIRONMENTAL JUSTICE CASE LAW OVERVIEW This appendix provides a general sense of the case law that has recently developed regarding environmental justice, with emphasis on transportation-related situations and the implications for performing environmental justice assessments. This brief survey describes what the courts have deemed acceptable when considering environmental justice and mitigating adverse effects. Much of the material in this appendix is drawn from other summaries, to which you should refer for a more detailed presentation. In particular, see the NCHRP report, Technical Methods to Support Analysis of Environmental Justice Issues (Cambridge Systematics, Inc. 2002). The report provides a thorough and comprehensive review of the legal framework for environmental justice issues in transportation, including a review of recent case law. With some exceptions, relevant case law shows that plaintiffs have been more successful in attacking the procedures that planning organizations use than in attacking the distributive effects of their activities.1 This has been largely due to the difficulty of plaintiffs' burden of proof requirements in disparate impact cases. Under the disparate impact standard, a plaintiff must identify specific discriminatory actions of permitting agencies; show disproportionate inclusion or exclusion of a protected population; and provide a causal connection between the alleged discriminatory action and the disproportionate effect.2 While the plaintiff bears the burden of proof of disparate impact, the defendant bears the burden of rebutting the claim or providing justification for its actions.3 Therefore, it is in the permitting agency's best interest to identify such potential claims early in the planning process and to involve the public in resolving the issues. Then, if litigation results, the permitting agency will be prepared with a rebuttal or information justifying its actions. RECENT CASES BASED ON EQUAL PROTECTION STATUTES AND REGULATIONS Title VI of the Civil Rights Act of 1964, as amended, only prohibits intentional discrimination, which is extremely difficult to prove. The U.S. DOT Title VI regulations, however, go a step further by prohibiting actions that have a disparate effect on protected populations. The 1 See Tolbert versus Ohio DOT 992 F. Supp. 951 (N.D. Ohio 1998); 172 F.3d 934 (6th Cir. 1999). 2 Under Title VI, courts have also frequently inferred causation based on statistical comparisons between minority host sites and the racial demographics of neighborhoods that would have been suitable for the facility. See Elston versus Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11 Cir. 1993); Georgia State Conference of Branches of NAACP versus Georgia, 775 F. 2d 1403, 1417 (11th Cir. 1985); Larry P. versus Riles, 793 F. 2d 969, 982-983 (9th Cir. 1984); Coalition of Concerned Citizens Against I-670 versus Damian, 608 F. Supp. 110 (DC Ohio 1984); Bryan versus Koch, 627 F.2d 612 (1980). 3 See New York Urban League, 71 F.3d at 1036. 319

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"disparate effect" standard in the Title VI regulations is similar, at least in concept, to the standard embodied in Executive Order (EO) 12898, which addresses "disproportionately high and adverse effects" on minority populations and low-income populations. As a result, plaintiffs seeking to bring environmental justice lawsuits have frequently based their legal claims on the U.S. DOT Title VI regulations, not on Title VI itself. In Alexander versus Sandoval, issued on April 24, 2001, the U.S. Supreme Court held that private plaintiffs can no longer bring lawsuits under the U.S. DOT Title VI regulations.4 As a result, private plaintiffs no longer can bring claims in federal court alleging a "disparate impact" on the basis of race, ethnicity, or national origin. The only avenues still open to private plaintiffs under Title VI are: (1) filing a lawsuit in federal court based on an allegation of intentional discrimination, which cannot be proven based solely on evidence of disproportionate effects and (2) filing an administrative complaint with the US. DOT, which can include a disparate-impact claim, but does not involve a private lawsuit in federal court. In the Sandoval case, the Supreme Court did not resolve the issue of whether private plaintiffs may be able to bring the equivalent of a Title VI disparate-impact claim under another federal statute, 42 U.S.C. Section 1983. Just a few weeks after Sandoval was decided, a U.S. District Court in New Jersey issued a decision in another high-profile case, South Camden Citizens for Action versus New Jersey Department of Environmental Protection. In that decision, the District Court held that Section 1983 does allow private plaintiffs to bring disparate-impact claims.5 The District Court's decision, however, was overturned by the U.S. Court of Appeals for the Third Circuit in December 2001.6 In its decision, the Third Circuit held that Section 1983 does not allow private parties to bring the type of disparate-impact lawsuits that the Supreme Court barred in Sandoval. RECENT CASES BASED ON ENVIRONMENTAL STATUTES AND REGULATIONS Unlike Title VI, the National Environmental Policy Act (NEPA) is purely procedural. It requires an analysis of environmental impacts and opportunities for public involvement, but it does not restrict the types of decisions that can be made once the necessary process has been completed. As a result, environmental justice claims based on NEPA are quite different from those based on Title VI. In NEPA cases, plaintiffs generally allege that a NEPA document did not sufficiently consider impacts on minority and low-income groups; the relief requested in such a lawsuit is usually an order requiring that further study be done. The ability of private plaintiffs to raise environmental justice issues in NEPA lawsuits remains unresolved. On one hand, there are several reported cases in which courts have rejected efforts to 4 See Alexander versus Sandoval, 532 U.S. 275, 121 5. Ct. 1511 (2001). 5 South Camden Citizens in Action versus New Jersey Department of Environmental Protection, 145 F. Supp. 2d 505 (D.N.J. 2001). 6 South Camden Citizens in Action versus New Jersey Department of Environmental Protection, 274 F. 3d 771 (3d Cir. 2001). 320

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raise environmental justice issues in a NEPA lawsuit; those courts have held, in essence, that raising environmental justice claims under NEPA would be tantamount to circumventing EO 12898, which specifically states that it does not create any enforceable legal rights.7 On the other hand, in a few reported cases the courts appear to have assumed--without explanation--that a court can review the adequacy of an agency's environmental justice analysis as part of its review of an environmental impact statement (EIS) under NEPA.8 Thus, at this point, there remains some uncertainty about whether plaintiffs can challenge an EIS (or other NEPA document) based on alleged inadequacies in the review of impacts on low- income populations or minority populations. This issue may be resolved in the future through additional NEPA litigation. PROPORTIONALITY IN DISTRIBUTION OF BENEFITS AND BURDENS There has been relatively little case law that directly addresses the core issues presented in EO 12898--namely, how to determine whether a particular population group is disproportionately affected by a project and, if so, how to determine whether such disproportionate impacts are justified. However, in one relatively recent case, Jersey Heights Neighborhood Association versus Glendening, the U.S. Court of Appeals for the Fourth Circuit directly addressed some of these issues. In that case, the plaintiffs alleged that the location of a highway in a minority neighborhood violated the nondiscrimination requirements of the federal Fair Housing Act.9 One of the plaintiffs' arguments was that "similarly situated residents" are entitled to an "equal distribution" of benefits and burdens of the project. The Fourth Circuit rejected this line of reasoning as follows: This proportional burden theory is an unmanageable proposition. Under the [plaintiff's] standard, how is a multicultural society ever to locate a highway? Suppose a roadway runs by a neighborhood that is 35 percent Anglo, 45 percent Latino, and 20 percent African American. Does the predominant ethnic group have a disparate impact claim? What if 35 percent of a route runs proximate to a predominately Asian American neighborhood and 25 percent next to a predominately Hispanic American neighborhood? Will planners have to relocate the corridor to ensure that it affects each ethnicity proportionally? Simply to pose these questions is to demonstrate the absurdity of the result--a twisting, turning 7 See Acorn versus U.S. Army Corps of Engineers, 2000 U.S. Dist. LEXIS, * 24 (E.D. La. April 20, 2000) (holding that environmental justice claim could not be based on NEPA, even though CEQ regulations required agencies to integrate NEPA analyses with analyses "required by...other environmental laws and executive orders"); Citizens Concerned About Jet Noise, Inc. versus Dalton, 48 F. Supp.2d 582 (E.D. Va. 1999) (holding that "NEPA does not require an environmental justice analysis" and, as a result, "the court does not have jurisdiction to review this portion of the FEIS [i.e., the environmental justice analysis]"); New River Valley Greens versus U.S. Department of Transportation, 1996 U.S. Dist LEXIS 16547, *16 (W.D. Va. October 1, 1996) (holding that plaintiffs cannot "do indirectly under NEPA what cannot be done directly under the Order [i.e., bring an environmental justice claim]"). 8 See Donald Young versus General Services Administration, 99 F. Supp. 2d 59, 84-85 (D.D.C. 2000) (holding that an ElS for a federal agency office building adequately considered environmental justice impacts); American Bus Association, Inc. versus Slater, 1999 U.S. Dist. LEXIS 20936 (D.D.C. September 10, 1999) (holding that U.S. DOT adequately considered environmental justice issues when deciding not to prepare an EIS for proposed regulations). 9 See Jersey Heights Neighborhood Association versus Glendening, 174 F.3d 180 (4~ Cir. 1999). 321

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roadway that zigs and zags only to capture equally every subset. Such a standard would lead to race-based decision making of the worst sort. We do not think the drafters of the Fair Housing Act ever contemplated such a reading.10 As a matter of legal precedent, the Jersey Heights decision only applies to cases under the Fair Housing Act. However, this case is noteworthy because it signals that courts may be skeptical of lawsuits based on the claim that the benefits and burdens of a transportation project have been distributed disproportionately. REFERENCES Cambridge Systematics, Inc. 2002. Technical Methods to Support Analysis of Environmental Justice Issues. Final report of project NCHRP Project 8-36(11). Transportation Research Board, National Research Council. Washington, DC: National Academy Press. 10 See Jersey Heights Neighborhood Association versus Glendening, 174 F.3d 180, 193 (4th Cir. 1999). 322