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Eight were under review, and only fourteen had been accepted for investigation. See Waiting for Justice, supra note 31, at 1—4. The complaint alleged that heavy pesticide use in close proximity to schools, including the use of the highly toxic chemical methyl bromide, disparately impacted Latino schoolchildren. Mock, supra note 29; Right Without a Remedy, supra note 8, at 8. But see Office of Envtl. Justice, U.

The Law of Environmental Justice, supra note 25, at 32—33, Essentially, the fine only differs in that it is public in nature. As Shavell points out, however, the absence of private enforcement incentives makes imposition of a fine less likely than a private suit. While other authors have filled this gap, see, e. See Shavell, supra note 61, at — Standards, prohibitions, and other forms of safety regulation, in contrast, are public in character and modify behavior in an immediate way through requirements that are imposed before, or at least independently of, the actual occurrence of a harm.

Original Articles

Cass R. Krier, Risk, Courts, and Agencies , U. See Shavell, supra note 61, at An appropriately broad view of externalities should include moral offenses and injuries to self-respect caused by racial discrimination and environmental degradation. Yet these costs often cannot be quantified, at least satisfactorily. See Posner, supra note 37, at 16—17 listing death, disfigurement, disability, emotional injury, and many forms of environmental damage as examples.

Daryl J. In fact, compensable costs are only a fraction of the true social costs. Russell B. Standards Revisited , 79 Or. Bar-Gill and Friedman describe this ex post bias in the context of Fourth Amendment jurisprudence and the exclusionary rule. See generally David E. See Johnson, supra note 68, at n.

Zygmunt J. See Bullard, supra note 20, at See The Law of Environmental Justice, supra note 25, at For example, customers can exert market pressure to guarantee discriminatory practices will continue just as easily as they can do the same to eliminate them. Furthermore, the embeddedness of ordinary bigotry and stereotyping can provide an economically rational basis for discriminatory decisions by market actors.

In addition, discrimination creates feedback loops, which the beneficiaries of the status quo take advantage of opportunities to reduce cognitive dissonance, while victims reduce dissonance by adapting their preferences to available opportunities and responding to market signals that it is less worthwhile for them to develop the skills necessary to compete. Johnson discusses the potential for advancing equity goals through ex ante regulations and enforcement under the rubric of equality directives.

Equality directives are characterized by three attributes: they are regulatory in their approach; they establish affirmative and not merely prohibitory requirements; and they impose a pervasive set of duties for federal and state programs. They require grant recipients to conduct front-end assessment of impacts, evaluate alternatives, and include groups not normally at the table.

This approach thus avoids the back-end problems of court enforcement of disparate impact by incorporating an equity and inclusionary lens before policies and programs are implemented. For instance, all recipients of federal mass transit funds must conduct impact assessments, outreach, and other practices to include minority groups, persons with disabilities, and groups with limited English proficiency.

The norm compliance effect, however, works both ways. By drawing lines that divide the permissible and impermissible, ex ante regulations may lead to problematic anchoring in light of norm compliance. See Letter from Linda C. Ford, Acting Dir.

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Nondiscrimination in Health and Health Education Programs or Activities

Transit Admin. Officer, Los Angeles County Metro. Manager, S. Bay Area Rapid Transit Dist. See Part V A supra ; see also Shavell, supra note , at , explaining that ex post liability alone does not create sufficient incentives, either because all parties are not able to pay fully for harm done or are not sued in the first place. Shavell, supra note , at , describing how ex ante regulation alone does not lead to socially desirable levels of care because regulatory authorities do not have perfect information about risks.

Johnson, supra note 30, at It is difficult to definitively explain why DOT implemented a Title VI enforcement scheme with such a comparatively robust ex ante enforcement component and EPA did not. It may be related to the more culturally ubiquitous history of discrimination in the transportation sector. It may be related to the different regulatory framework under transportation and environmental law more broadly. It may be related to agency staff, culture, or leadership.

Discriminatory Practices

Compare U. The history of the respective regulations provides little to resolve these questions.


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Suffice it to say, however, that the regulatory structures did develop quite differently and this article focuses on what those differences might teach us about their relative merits for enforcement. Unfortunately, little case law has discussed these regulations. States must also submit amendments to a STIP for approval. Each [implementation] plan shall.

Prior to amendment, the provision codified in section a 2 E i had related to interstate pollution and National Ambient Air Quality Standards. Thus, I have taken care to limit my research to interpretations of the current provision.

Types of Discrimination

Any further research should note these changes to avoid confusion. Very little case law, however, has explored what this more specifically requires. Notably, even when courts have discussed Section a 2 E i they have declined to interpret its requirements to create strict or stringent constraints. United States Envtl. Protection Agency,. See 23 C.

Compare 49 C. Complaints shall be investigated by State civil rights personnel trained in compliance investigations. Identify each complainant by race, color, sex, or national origin; the recipient; the nature of the complaint; the dates the complaint was filed and the investigation completed; the disposition; the date of the disposition; and other pertinent information. Each recipient State processing Title VI complaints shall be required to maintain a similar log.

Regarding ex ante oversight and compliance, EPA nominally encourages preventive steps by funding recipients, but does not detail how they should be taken. Order In addition, the FHWA website includes training resources, best practices, and an Environmental Justice Case Studies booklet that profiles how various transportation agencies have integrated environmental justice considerations into their activities and decision-making. See Environmental Justice , Fed. Highway Admin.

The FTA website includes additional Title VI resources, including reports of all periodic compliance reviews of funding recipients, quick reference guides, and training materials. See Federal Transit Admin. III-1 to V-1 to III-4 to For states in particular, the Circular requires that they prepare, maintain, and report if requested, the following:. The record shall identify those applicants that would use grant program funds to provide assistance to predominantly minority populations.

The record shall also indicate which applications were rejected and accepted for funding. This description shall emphasize the method used to ensure the equitable distribution of funds to subrecipients that serve predominantly minority populations, including Native American tribes, where present. Equitable distribution can be achieved by engaging in outreach to diverse stakeholders regarding the availability of funds, and ensuring the competitive process is not itself a barrier to selection of minority applicants.

VIII-1 to The regulations for the relevant DOT proceedings are codified in Sections But cf. Barry E. Acts Code Ann. Hill, supra note , at ; see Ala. Hill, supra note , at —72; see Del. Yang, supra note 16, at — Constitutional remedies will influence government behavior only insofar as they manage to shape these political incentives. Across the country, communities of color are disparately exposed to environmental harms.

Related Articles

While the disparity is clear, the causes are complex, systemic, and varied. A report to the California Waste Management Board has become an infamous example of such strategic siting. Systemic market mechanisms contribute as well:. As long as the market allows the existing distribution of wealth to allocate goods and services, it would be surprising indeed if, over the long run, LULUs did not impose a disproportionate burden upon the poor.


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  • And as long as the market discriminates on the basis of race, it would be remarkable if LULUs did not eventually impose a disproportionate burden upon people of color. Whether attributing disparities to strategic siting decisions or broader structural dynamics, these injustices ultimately link back to pervasive racial inequality. First, because people of color are disproportionately poorer than others, they are more likely to live in low-income neighborhoods and work in low-income jobs associated with higher exposure rates.

    Second, numerous barriers have led people of color to have disproportionately less opportunity for political influence. Although powerful organizing work has been done to counteract historical and present-day barriers, with less access to or influence over political structures it is more difficult to challenge a polluting facility.

    Third, intentional, structural, and implicit racial biases have compounding effects on existing economic inequality and political barriers.