National Review Online misrepresented civil rights precedent to attack the Environmental Protection Agency (EPA), continuing right-wing media's campaign against the validity of a long-standing civil rights doctrine that prohibits certain racial discrimination.
Right-wing media have repeatedly stated their intense dislike of the effective civil rights doctrine of "disparate impact" analysis, a type of anti-discrimination protection that can prohibit seemingly neutral law and policy that has a disproportionate effect on certain groups. For example, its use in the context of fair housing law on behalf of victims of color - unanimously recognized as legal by appellate courts - has been consistently attacked by both NRO and the Wall Street Journal, an attack that has shifted to the use of the doctrine by Assistant Attorney General Thomas Perez, current Labor Secretary nominee.
In addition to fair housing, in which the doctrine has resulted in significant settlements from banks that engaged in predatory loaning and related discrimination, compliance with disparate impact law has also been identified as a way for the EPA to ameliorate environmental actions that have a disproportionate effect on communities of color. This "environmental justice" approach was recently criticized by NRO as "wacky," dubious," and "inconsistent" with Title VI of the 1964 Civil Rights Act:
[T]he Obama administration has taken the already-wacky concept of "environmental justice" to even-wackier extremes. The basic idea here is that whether pollution is illegal or not can depend on whether its possible victims reflect a politically correct racial balance.
Now EPA has made it "significantly easier for environmental groups to establish" a violation under this dubious approach to the law....And, what's still more, the whole approach is inconsistent with the underlying statute involved, Title VI of the 1964 Civil Rights Act.
Despite the NRO's antipathy to the disparate impact doctrine, it is currently constitutional for the government to utilize it in both the fair housing and environmental justice contexts, consistent with Title VI. The EPA guidance NRO criticizes is a clarification of how administrative complaints are processed under the agency's constitutional Title VI enforcement powers. A bitterly split 2001 Supreme Court decision, Alexander v. Sandoval, that overturned precedent to eliminate private disparate impact lawsuits under Title VI, explicitly noted that it was not prohibiting agency enforcement under this title. As explained recently by a Congressional Research Service report:
Title VI of the Civil Rights Act of 1964 generally prohibits discrimination in federally funded programs or activities. Section 601 states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Section 602 directs federal agencies that administer federally funded programs to implement the nondiscrimination provision through the promulgation of regulations and related enforcement proceedings. Agencies have issued regulations under Section 602 that prohibit actions with a discriminatory intent as well as actions with a discriminatory effect (also referred to as disparate impact).
[D]espite recognizing agencies' authority to issue Section 602 regulations to prevent disparate impact discrimination, the Court [in Sandoval] held that there was no private right of action under these regulations. Thus, since 2001, legal claims of discriminatory effect have been limited to the administrative complaint process.
Beyond the legal misinformation, NRO also trivialized the fact that environmental inequity on the basis of race is a documented problem. The Center for Disease Control recently confirmed that air pollution, for example, affects Latinos (and Asian-Americans) significantly more than other racial and ethnic groups, due to the fact that "close to 50 percent of all Hispanic- Americans live in counties that frequently violate groundlevel ozone standards."
Furthermore, the principles of environmental justice that seek to alleviate this harm are not radical new initiatives of the Obama administration. The EPA has identified the importance of environmental justice for over two decades, begining with the administration of former President George H.W. Bush. From the 1992 EPA report, Environmental Equity: Reducing Risks For All Communities:
Among the findings were that there are clear differences between racial groups in terms of disease and death rates; racial minority and low-income populations experience higher than average exposures to selected air pollutants, hazardous waste facilities, contaminated fish and agricultural pesticides in the workplace; and great opportunities exist for EPA and other government agencies to improve communication about environmental problems with members of low-income and racial minority groups.
Among the recommendations in the report are that EPA should increase the priority that it gives to issues of environmental equity; identify and target opportunities to reduce high concentrations of risk to specific population groups; and increase efforts to involve racial minority and low-income communities in environmental policy-making.
"EPA's basic goal is to make certain that the consequences of environmental pollution should not be borne unequally by any segment of the population," said EPA Administrator William K. Reilly. "EPA has a responsibility to identify and target these populations."