Intent vs. Impact: The Legality of the EPA’s Disparate Impact Regulation

In April of 2024, twenty-three state attorneys general signed a petition calling for the United States Environmental Protection Agency (EPA) to cease its use of disparate impact regulations, citing concerns of unlawfulness and “racial engineering.” [1] These disparate impact regulations are a set of administrative rules that prohibit any programs receiving EPA funding from causing disproportionate negative effects towards certain groups of people based on race, color, or national origin. [2] Disparate impact regulations are distinct from, yet exist alongside, regulations that prohibit intentional discrimination. Like other federal agencies with similar policies, the EPA bases these regulations on Title VI of the Civil Rights Act. Title VI contains two relevant provisions: § 601, which bars any programs or activities receiving federal funding from discriminating based on race, color, or national origin, and § 602, which enables federal agencies to effectuate § 601 by implementing policies regulating the behavior of said programs or activities. [3]

The EPA uses disparate impact regulation to prevent and/or rectify instances of environmental racism. Environmental racism, a term first coined by civil rights leader Dr. Benjamin F. Chavis Jr., refers to instances where minority groups are disproportionately exposed to or harmed by environmental hazards. [4] One example is the concentration of uranium mines on Native American land in the American southwest, which has caused radioactive materials to leak into the surrounding water and soil. [5] Exposure to these contaminants can lead to various health impacts such as cancer and birth defects, which affect the indigenous people who predominantly occupy the region. [6] Another example was the proposed Byhalia Connection Pipeline in Memphis, Tennessee, which was set to run directly through majority-Black neighborhoods in the city. The pipeline would have exposed these residents to harms such as drinking water contamination, but construction was shut down after intense backlash from local activist groups. Crucially, proving discriminatory intent is often very difficult in instances like these, so regulating against cases of disparate impact discrimination is a cornerstone of the EPA’s ability to mitigate occurrences of environmental racism.

However, the EPA’s interpretation of Title VI as enabling disparate impact regulations is highly controversial. Critics, including the aforementioned attorneys general, argue that Title VI only bars intentional discrimination, and that disparate impact regulations are both unjust and illegal. In Louisiana v. United States EPA, the U.S. District Court for the Western District of Louisiana issued a permanent injunction blocking the EPA from enforcing these regulations within the state of Louisiana. [7] Environmental groups criticized the August 2024 ruling as a massive blow to the fight for climate justice. [8]

Putting the political and pragmatic impacts of these regulations aside, the decision in Louisiana has brought the legal validity of disparate impact regulations under intense scrutiny. Notably, the actual text of Title VI never defines the discrimination it refers to, leading to heated debate over its interpretation. [9] Because Title VI itself is so vague, we must turn to precedent set by the Supreme Court in past rulings on disparate impact discrimination. The EPA’s disparate impact regulations themselves have yet to be the subject of a Supreme Court ruling, so we can draw from decisions in analogous cases regarding other federal agencies like the Department of Education or Department of Justice. Relevant cases include Lau v Nichols, Guardians Association v Civil Service Commission, Alexander v Sandoval, each of which are cases of disparate impact discrimination. The legal precedents set in these rulings indicate that the EPA is legally justified in regulating against disparate impact discrimination.

 In 1974, the Supreme Court ruled in Lau v. Nichols that Title VI enabled the Department of Health, Education, and Welfare (now separated into the Department of Education and the Department of Health and Human Services) to regulate against school policies that had racially discriminatory effects, despite lack of discriminatory intent. [10] In the 1970s, the public school system of San Francisco, California, contained thousands of students of Chinese descent who did not speak English, yet did not provide them with any supplementary English-language instruction. Because San Francisco schools were taught in English, these students were unable to meaningfully participate in their education. They subsequently sued the officials in charge of the school district for violating Title VI, citing discrimination on the basis of national origin. As a recipient of federal funding, the San Francisco Unified School District was required to adhere to the provisions of Title VI, a fact that they did not contest. The Supreme Court found that the failure to provide English-language instruction to these students did indeed violate § 601 of Title VI because it constituted discrimination on the basis of national origin by denying the plaintiffs’ equal opportunity to receive a public education. The Court also upheld the right of the Department of Health, Education, and Welfare to create and enforce regulation against this type of discrimination.

Notably, this decision was made on the basis of discriminatory impact faced by the students, despite no intentional discrimination on behalf of the district. Justice William Douglas delivered the majority opinion, writing, “Discrimination is barred which has that effect even though no purposeful design is present.” [11] In doing so, he set a precedent that discriminatory impact was the necessary condition for a Title VI violation, not intent; the statute ought to be interpreted as protecting against cases of both intentional and unintentional discrimination. Though this case did not use the language of “disparate impact,” the legal basis of this decision has often been extended to justify disparate impact regulation across numerous federal agencies. Therefore Lau, viewed in isolation, would justify the EPA’s disparate impact regulation. However, since Lau, there have been Supreme Court decisions that some argue have overturned this precedent. We must evaluate the way that these more recent cases interact with Lau in order to determine the validity of the EPA’s regulations.

 In 1983, Guardians Association v. Civil Service Commission once again scrutinized the legality of disparate impact regulations. [12] In the late 1960s and early 1970s, the New York Police Department (NYPD)—which receives federal funding—required all potential recruits to take written examinations. The NYPD then based decisions such as hiring order and layoffs on the scores of these exams. However, Black and Hispanic officers tended to score lower on these exams and were therefore disproportionately negatively affected by this policy; they were not appointed to certain prestigious positions, or were laid off sooner. Since these exams were unrelated to the function of the job, the professional organizations representing Black and Hispanic police officers sued the Civil Service Commission of the City of New York, which oversees civil servants. The plaintiffs claimed that the NYPD’s exams violated Title VI protections against racial discrimination, and requested compensatory relief such as being granted the job offers they were previously denied and receiving back pay. The Supreme Court held that the plaintiffs were not entitled to this compensation, but in its decision, the Court did not proscribe disparate impact regulation. While it ruled that discriminatory intent was necessary for the plaintiffs to receive compensatory relief, it maintained that Title VI protected against unintentional (disparate impact) discrimination in other capacities, including regulation by federal agencies.

Justice Byron White wrote the majority opinion in Guardians. He agreed that the plaintiffs were not entitled to compensation without discriminatory intent, yet upheld that they were entitled to other forms of relief, such as declaratory or injunctive relief. [13] In other words, he believed that disparate impact discrimination did in fact violate Title VI, and that courts are justified in prohibiting this discrimination from occurring. Justice White also supported the legality of administrative regulations against disparate impact discrimination, writing, “the regulations are valid, even assuming, arguendo, that Title VI, in and of itself, does not proscribe disparate impact discrimination.” [14] Even if the language of Title VI does not explicitly forbid disparate impact discrimination, one can still extrapolate that regulations against it are legal.

In his opinion, Justice White also discussed Regents of the University of California v. Bakke (1978). In Bakke, the respondent argued that affirmative action for minorities in university admission was a form of racial discrimination and was therefore illegal under Title VI. [15] The Supreme Court disagreed, holding that affirmative action did not constitute the type of harmful racial discrimination proscribed by Title VI. Some have argued that the language used in the Bakke equates affirmative action to other forms of unintentional discrimination, so Bakke should be interpreted as restricting Title VI protection to solely cases of intentional discrimination. From this perspective, Bakke would override Lau and make disparate impact regulations invalid. White’s argument, however, preempted this criticism. He wrote that there was a meaningful distinction between the “benign racial classifications” of affirmative action and the “burdensome, nonbenign discriminations” present in disparate impact cases. [16] Therefore, although affirmative action may not have violated Title VI, disparate impact discrimination still did. Additionally, White argued that even if Bakke was interpreted as overruling the judgement in Lau that § 601 of Title VI only prohibits intentional discrimination, it certainly did not overrule the conclusion that § 602 Title VI permits federal agencies to implement regulations that prohibit disparate impact discrimination. In his words, “The upshot of Justice Stewart's opinion [in Lau] was that those charged with enforcing Title VI had sufficient discretion to enforce the statute by forbidding unintentional as well as intentional discrimination. Nothing that was said in Bakke is to the contrary.” [17]

Alexander v. Sandoval is another case often cited by critics of the EPA’s disparate impact regulations, but as in Guardians, the language used in the decision actually upholds the regulations’ validity. [18] In 1998, Martha Sandoval sued the Alabama Department of Public Safety (led by James Alexander) because they only offered English-language driver’s license exams, which she argued discriminated against non-English speakers like herself on the basis of national origin. This constituted disparate impact discrimination because the Department did not act with discriminatory intent, but its policies caused unequal negative impact. The Department counter-sued, and the Supreme Court ruled against Sandoval, declaring that there is no private right to action for disparate impact claims. The Court justified its decision by stating that although private individuals can sue to enforce Title VI, § 601 only prohibits intentional discrimination. Therefore, intentional discrimination is required to bring forward a private lawsuit for violation of Title VI, and intent was not present in the case of Alexander. [19]

The decision in Alexander overrules Lau’s interpretation of Title VI as directly prohibiting disparate impact discrimination. However, it does not overturn the key precedent set in both Lau and Guardians that governmental agencies can regulate against disparate impact, regardless of what Title VI directly forbids. Justice Antonin Scalia wrote in the majority opinion of Alexander, “it must be assumed for purposes of deciding this case that regulations promulgated under § 602 may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601.” [20] Because Alexander does not overturn the precedent set by Lau and affirmed by Guardians specifically regarding agencies and regulation, we ought to defer to the logic outlined in these decisions in analyzing the EPA’s ability to regulate against disparate impact; i.e, we can conclude these regulations are valid.

Though hotly contested, there is no convincing judicial precedent that upholds the criticisms launched against the EPA’s disparate impact regulations. In fact, numerous Supreme Court decisions have been remarkably explicit in their support of these regulations. Regardless of how § 601 of Title VI is interpreted, federal agencies maintain the ability to prohibit discriminatory impacts of programs receiving federal funding, whether discriminatory intent is present or not. The decision issued in Louisiana to block enforcement of EPA disparate impact regulations made Louisiana the first state to depart from this precedent. Though disparate impact regulations are currently still in effect across the rest of the United States, Louisiana may open the door to similar challenges in other states, or cause other federal agencies to be overly cautious about implementing and enforcing analogous regulations. [21] It is also possible that Louisiana will be appealed to the Supreme Court. Once there, a direct ruling on the legality of these regulations nationwide may finally be reached.

However, escalation to the Supreme Court does not guarantee permanent protection of the EPA’s disparate impact regulations. Though the principle of stare decisis, Latin for “to stand by things decided,” encourages the Court to adhere to precedent and uphold the legality of these regulations, this is not a compulsory obligation. Should a majority of justices believe that a just outcome cannot be achieved without overturning precedent, they are enabled to do so. [22] Recently, the Supreme Court has demonstrated willingness to overturn decades of precedent across numerous high-profile cases. In Dobbs v. Jackson Women’s Health Organization in 2022, the Court ruled by a 6-3 decision to reject a nearly fifty-year old precedent supporting the constitutional right to an abortion, as originally set in Roe v. Wade in 1973. [23] In 2023, the Court again overturned long-standing precedent in Students for Fair Admissions, Inc. (SFFA) v. Harvard and SFFA v. University of North Carolina when they deemed race-conscious affirmative action to be unconstitutional. [24] The precedent supporting the EPA’s disparate impact regulations may be clear, but it is not binding. The future of disparate impact remains hanging in the balance.

Edited by Andrea Ruiz

[1] Moody, Ashley. Florida Department of Legal Affairs. Office of the Attorney General. Petition for Rulemaking to Administrator Michael S. Regan. April 16, 2024. https://www.myfloridalegal.com/sites/default/files/2024-04/epa-title-vi-comment-final.pdf.

[2] Discrimination Prohibited on the Basis of Race, Color, National Origin, or Sex. U.S. Environmental Protection Agency. 40 C.F.R. § 7.35 (2024).

[3] Civil Rights Act of 1964. 42 U.S.C § 2000d et seq. (2018).

[4] Ihejirika, Maudlyne. “What Is Environmental Racism?” Natural Resources Defense Council, May 24, 2023. https://www.nrdc.org/stories/what-environmental-racism.

[5] Landa, E. R., and J. R. Gray. “US Geological Survey Research on the Environmental Fate of Uranium Mining and Milling Wastes.” Environmental Geology 26, no. 1 (July 1995): 19–31. https://doi.org/10.1007/bf00776028.

[6] Hoover, Elizabeth, Katsi Cook, Ron Plain, Kathy Sanchez, Vi Waghiyi, Pamela Miller, Renee Dufault, Caitlin Sislin, and David O. Carpenter. “Indigenous Peoples of North America: Environmental Exposures and Reproductive Justice.” Environmental Health Perspectives 120, no. 12 (December 2012): 1645–49. https://doi.org/10.1289/ehp.1205422.

[7] Judgement, State of Louisiana v. U.S. Environmental Protection Agency Et Al, 2:23-CV-00692 (W.D. La. 2024).

[8] Fitzgerald, Erin. “Louisiana Federal Court Permanently Stops Title VI Protections Statewide.” Earthjustice, August 24, 2024. https://earthjustice.org/press/2024/louisiana-federal-court-permanently-stops-title-vi-protections-statewide. 

[9] 110 Cong. Rec. 5605 (1964) (statement of Sen. Javits).

[10] Lau v. Nichols, 414 U.S. 563 (1974)

[11] Lau v. Nichols, 414 U.S. 563, 568 (1974)

[12] Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983)

[13] Guardians Association v. Civil Service Commission, 463 U.S. 582, 584 (1983)

[14] Guardians Association v. Civil Service Commission, 463 U.S. 582, 584 n.2 (1983)

[15] Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

[16] Guardians Association v. Civil Service Commission, 463 U.S. 582, 590 (1983)

[17] Guardians Association v. Civil Service Commission, 463 U.S. 582, 591-592 (1983)

[18] Alexander v. Sandoval, 532 U.S. 275 (2001)

[19] Alexander v. Sandoval, 532 U.S. 275, 279-281 (2001 

[20] Alexander v. Sandoval, 532 U.S. 275, 281-282 (2001)

[21] Fitzgerald, “Louisiana Federal Court.”

[22] American Bar Association. “Understanding Stare Decisis,” December 16, 2022. https://www.americanbar.org/groups/public_education/publications/preview_home/understand-stare-decisis/.

[23] Liptak, Adam. “In 6-To-3 Ruling, Supreme Court Ends Nearly 50 Years of Abortion Rights.” The New York Times, June 24, 2022, sec. U.S. https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html.

[24] Legal Defense Fund. “Affirmative Action in Higher Education: The Racial Justice Landscape after the SFFA Cases,” October 2023. https://www.naacpldf.org/wp-content/uploads/2023_09_29-Report.pdf.