Proving an Environmental Justice Case: Determining an Appropriate Comparison Population
By Bradford C. Mank
INTRODUCTION
In proving a case of adverse disparate impact discrimination under Title VI of the 1964 Civil Rights Act, a plaintiff in its prima facie case must show a significant disparity between an affected population and an appropriate comparison population. Both government agencies and commentators have neglected to address the crucial issue of how to select and define a comparison population. Title VI cases often look to Title VII cases for guidance. Title VII cases require that a comparison population should be similarly situated to the affected population. In 2000, the Environmental Protection Agency (“the EPA” or “the Agency”) issued draft Title VI guidance addressing this issue, but the Agency failed to address how to select a similarly situated comparison population. Business commentators have proposed an overly restrictive test requiring that both the affected area and comparison population contain very similar land uses. For example, business commentators suggest it would be inappropriate in many cases to compare a poor, urban area with an affluent suburban area.
This Article proposes that a comparison population is similarly situated with an affected population if the comparison area meets the minimum relevant requirements for the proposed facility. This test is consistent with Title VII cases requiring that comparisons be made between qualified workers in the same relevant job market. The proposed test would allow comparisons between poor, heavily minority areas and affluent suburban areas as long as the facility could be sited in either area. The Article addresses how the EPA can use existing information to select comparison areas and the special problems presented by local zoning restrictions.
Title VI of the 1964 Civil Rights Act prohibits federal agencies from providing financial assistance to recipients that commit discrimination on the basis of “race, color or national origin . . . .” Title VI clearly prohibits recipients from engaging in intentional discrimination that results in disparate treatment of protected groups. Additionally, the Supreme Court has recognized that federal agencies may adopt Title VI implementing regulations that prohibit recipients of federal funds from using criteria or methods that cause an unjustified disparate impact on protected groups, even if the practices or actions are not intentionally discriminatory. The EPA's Title VI regulations prohibit its recipients, which include almost all state environmental agencies, from taking actions that cause either intentional discrimination or unintentional disparate impact discrimination to protected minority groups. On June 27, 2000, the EPA published the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (“Revised Investigation Guidance”) to clarify when a permit decision by a recipient may cause adverse, unjustified disparate impacts that violate Title VI.
In determining whether a decision causes adverse, unjustified disparate impacts, a decision-maker must compare the level of adverse impacts experienced by the affected population to an appropriate comparison population. The EPA and most commentators have focused on defining the scope of the affected population and paid far less attention to the issue of defining an appropriate comparison population.7 Yet whether a court or government agency finds a significant and unjustified disparity often depends on the size and characteristics of the comparison population.
The Revised Investigation Guidance's approach to defining comparison populations is inadequate in light of Title VI and VII case law because there is no requirement that a comparison population be similarly situated to the affected population. While Title VII cases initially allowed plaintiffs to compare an allegedly affected minority population to a general population, subsequent Supreme Court decisions have required a plaintiff, in establishing a prima facie case of discrimination, to compare a group that is allegedly the victim of discrimination with qualified persons in the relevant job market. Courts in Title VI cases often look to Title VII decisions for guidance, so Title VII cases defining an appropriate comparison group are therefore helpful in addressing the same question under Title VI. While the EPA is not technically bound by Title VII cases, the Department of Justice in its Title VI Legal Manual recognizes that “Title VI disparate impact claims are analyzed using principles similar to those used to analyze Title VII disparate impact claims.” Although it is unclear to what extent courts will give deference to the Agency's Title VI guidance, it is likely that courts will give more deference to the Title VI guidance if it is firmly grounded in Title VI and VII case law. Accordingly, the EPA should carefully consider Title VII precedent demanding an appropriate comparison population be similarly situated to the affected population.
A distinction must be made between the use of general population statistics to make initial identifications of possible high-risk areas and using those same statistics to make a formal comparison to determine liability under Title VI. It is appropriate for the EPA or states to use general population statistics as part of a process in which they initially identify areas that may have high amounts of pollution or potential disparate impacts and then compare the pollution levels in such areas with statewide averages. Accordingly, as part of a program to avoid potential disparities, it is frequently acceptable for states or the EPA to compare a potentially affected population with general population statistics. Furthermore, if a facility could be sited anywhere in a recipient's jurisdiction, it may sometimes be appropriate to use a general population as the applicable comparison group in making a final determination as to whether an affected population is disproportionately affected by disparate impacts.
Nevertheless, in light of Title VII law, the EPA should not automatically use a general population as the appropriate comparison group, or even the non-affected sub-population of the general population, in making legal determinations about whether a recipient has violated Title VI. Instead, the agency should first define the appropriate comparison area based not just on the recipient's jurisdictional authority, but also on whether the facility at issue in the affected area could be sited in the proposed comparison area. If minority job applicants must be compared to a relevant labor market rather than just the general population, then the EPA should compare an affected population with a comparison population that is located in an area that could have been a possible site for the facility. Accordingly, if a public transportation project could only be built in certain urban areas, then the affected population should be compared to the populations in those urban areas, rather than the state-wide population. Some might argue that the defendant or recipient has the burden of showing as a valid business necessity that certain areas are unsuitable for the facility. Yet in defining a relevant comparison group, the plaintiff has a duty to show that the comparison group is similarly situated enough to compare it to the affected population.
On the other hand, a comparison area does not have to be the same as the affected area to be similarly situated as long as the comparison area is suitable for the facility at issue, meeting all relevant objective minimum requirements. Some business trade associations have proposed an overly restrictive definition of “similarly situated” by contending that a comparison population must be in an area very similar to the affected population, having a similar range of residential, industrial and commercial uses. There is some confusion in Title VII law about whether a plaintiff must address relative qualifications in its prima facie case and hence consider such issues in delineating an appropriate comparison population. Most courts simply require a plaintiff's prima facie case to address objective, minimum qualifications, however, and place the burden on the defendant to show that it hired better qualified workers than the plaintiffs. Accordingly, in Title VII cases, courts have required a basic similarity in selecting a comparison population that consists of qualified applicants in the relevant job market, but have not demanded that a comparison population be nearly the same in every relevant characteristic. For example, in Title VII cases, minority job applicants do not need to have the same educational or occupational characteristics as an appropriate comparison population, as long as they are qualified for the job at issue. In the context of environmental permits, the best test for whether a comparison population is similarly situated is usually if the proposed facility in the affected area could also be sited in the comparison area.
To determine whether a comparison area is similarly situated, the EPA should start by examining existing information from permit applications, but may need to encourage states and permit applicants to provide additional information. Some of the information that the Agency needs to define an appropriate comparison population may be available from existing state and federal permitting requirements. For example, because many state siting statutes already require a permit applicant to propose or consider a number of different locations for a proposed facility, existing siting and permitting processes already generate some of the information that would be useful in defining what is an appropriate comparison population. Additionally, several federal environmental statutes, most notably the National Environmental Policy Act, require the government to evaluate alternatives to a proposed project, and this information could prove useful in selecting an appropriate comparison population. Furthermore, the EPA, in both the Revised Investigation Guidance and the Recipient Guidance, encourages states to collect demographic information and pollution data about high risk populations, and this information could prove useful in selecting both the affected population and an appropriate comparison population.
Nevertheless, in investigating and resolving Title VI administrative complaints, the EPA has ultimate responsibility in researching and assessing any disputed factual issues. If any necessary information about comparison populations is not available, the EPA should work with recipients and complainants to develop such information. Moreover, the EPA should develop guidelines for determining appropriate comparison populations. In selecting a comparison population, the Agency needs to evaluate whether a recipient's siting criteria are legitimate minimum requirements or whether the recipient's criteria are likely to be masks for discriminatory decisions. An especially sensitive problem is the role of local land use restrictions that may be beyond the authority of the recipient, but may effectively foreclose some areas from consideration. The EPA should examine whether the recipient can preempt, mitigate or avoid discriminatory local land use regulations. By carefully evaluating a recipient's siting criteria to determine whether all stated criteria are legitimate and selecting appropriate comparison populations, the EPA can improve its process for analyzing Title VI disparate impact complaints.
In proving a case of adverse disparate impact discrimination under Title VI of the 1964 Civil Rights Act, a plaintiff in its prima facie case must show a significant disparity between an affected population and an appropriate comparison population. Both government agencies and commentators have neglected to address the crucial issue of how to select and define a comparison population. Title VI cases often look to Title VII cases for guidance. Title VII cases require that a comparison population should be similarly situated to the affected population. In 2000, the Environmental Protection Agency (“the EPA” or “the Agency”) issued draft Title VI guidance addressing this issue, but the Agency failed to address how to select a similarly situated comparison population. Business commentators have proposed an overly restrictive test requiring that both the affected area and comparison population contain very similar land uses. For example, business commentators suggest it would be inappropriate in many cases to compare a poor, urban area with an affluent suburban area.
This Article proposes that a comparison population is similarly situated with an affected population if the comparison area meets the minimum relevant requirements for the proposed facility. This test is consistent with Title VII cases requiring that comparisons be made between qualified workers in the same relevant job market. The proposed test would allow comparisons between poor, heavily minority areas and affluent suburban areas as long as the facility could be sited in either area. The Article addresses how the EPA can use existing information to select comparison areas and the special problems presented by local zoning restrictions.
Title VI of the 1964 Civil Rights Act prohibits federal agencies from providing financial assistance to recipients that commit discrimination on the basis of “race, color or national origin . . . .” Title VI clearly prohibits recipients from engaging in intentional discrimination that results in disparate treatment of protected groups. Additionally, the Supreme Court has recognized that federal agencies may adopt Title VI implementing regulations that prohibit recipients of federal funds from using criteria or methods that cause an unjustified disparate impact on protected groups, even if the practices or actions are not intentionally discriminatory. The EPA's Title VI regulations prohibit its recipients, which include almost all state environmental agencies, from taking actions that cause either intentional discrimination or unintentional disparate impact discrimination to protected minority groups. On June 27, 2000, the EPA published the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (“Revised Investigation Guidance”) to clarify when a permit decision by a recipient may cause adverse, unjustified disparate impacts that violate Title VI.
In determining whether a decision causes adverse, unjustified disparate impacts, a decision-maker must compare the level of adverse impacts experienced by the affected population to an appropriate comparison population. The EPA and most commentators have focused on defining the scope of the affected population and paid far less attention to the issue of defining an appropriate comparison population.7 Yet whether a court or government agency finds a significant and unjustified disparity often depends on the size and characteristics of the comparison population.
The Revised Investigation Guidance's approach to defining comparison populations is inadequate in light of Title VI and VII case law because there is no requirement that a comparison population be similarly situated to the affected population. While Title VII cases initially allowed plaintiffs to compare an allegedly affected minority population to a general population, subsequent Supreme Court decisions have required a plaintiff, in establishing a prima facie case of discrimination, to compare a group that is allegedly the victim of discrimination with qualified persons in the relevant job market. Courts in Title VI cases often look to Title VII decisions for guidance, so Title VII cases defining an appropriate comparison group are therefore helpful in addressing the same question under Title VI. While the EPA is not technically bound by Title VII cases, the Department of Justice in its Title VI Legal Manual recognizes that “Title VI disparate impact claims are analyzed using principles similar to those used to analyze Title VII disparate impact claims.” Although it is unclear to what extent courts will give deference to the Agency's Title VI guidance, it is likely that courts will give more deference to the Title VI guidance if it is firmly grounded in Title VI and VII case law. Accordingly, the EPA should carefully consider Title VII precedent demanding an appropriate comparison population be similarly situated to the affected population.
A distinction must be made between the use of general population statistics to make initial identifications of possible high-risk areas and using those same statistics to make a formal comparison to determine liability under Title VI. It is appropriate for the EPA or states to use general population statistics as part of a process in which they initially identify areas that may have high amounts of pollution or potential disparate impacts and then compare the pollution levels in such areas with statewide averages. Accordingly, as part of a program to avoid potential disparities, it is frequently acceptable for states or the EPA to compare a potentially affected population with general population statistics. Furthermore, if a facility could be sited anywhere in a recipient's jurisdiction, it may sometimes be appropriate to use a general population as the applicable comparison group in making a final determination as to whether an affected population is disproportionately affected by disparate impacts.
Nevertheless, in light of Title VII law, the EPA should not automatically use a general population as the appropriate comparison group, or even the non-affected sub-population of the general population, in making legal determinations about whether a recipient has violated Title VI. Instead, the agency should first define the appropriate comparison area based not just on the recipient's jurisdictional authority, but also on whether the facility at issue in the affected area could be sited in the proposed comparison area. If minority job applicants must be compared to a relevant labor market rather than just the general population, then the EPA should compare an affected population with a comparison population that is located in an area that could have been a possible site for the facility. Accordingly, if a public transportation project could only be built in certain urban areas, then the affected population should be compared to the populations in those urban areas, rather than the state-wide population. Some might argue that the defendant or recipient has the burden of showing as a valid business necessity that certain areas are unsuitable for the facility. Yet in defining a relevant comparison group, the plaintiff has a duty to show that the comparison group is similarly situated enough to compare it to the affected population.
On the other hand, a comparison area does not have to be the same as the affected area to be similarly situated as long as the comparison area is suitable for the facility at issue, meeting all relevant objective minimum requirements. Some business trade associations have proposed an overly restrictive definition of “similarly situated” by contending that a comparison population must be in an area very similar to the affected population, having a similar range of residential, industrial and commercial uses. There is some confusion in Title VII law about whether a plaintiff must address relative qualifications in its prima facie case and hence consider such issues in delineating an appropriate comparison population. Most courts simply require a plaintiff's prima facie case to address objective, minimum qualifications, however, and place the burden on the defendant to show that it hired better qualified workers than the plaintiffs. Accordingly, in Title VII cases, courts have required a basic similarity in selecting a comparison population that consists of qualified applicants in the relevant job market, but have not demanded that a comparison population be nearly the same in every relevant characteristic. For example, in Title VII cases, minority job applicants do not need to have the same educational or occupational characteristics as an appropriate comparison population, as long as they are qualified for the job at issue. In the context of environmental permits, the best test for whether a comparison population is similarly situated is usually if the proposed facility in the affected area could also be sited in the comparison area.
To determine whether a comparison area is similarly situated, the EPA should start by examining existing information from permit applications, but may need to encourage states and permit applicants to provide additional information. Some of the information that the Agency needs to define an appropriate comparison population may be available from existing state and federal permitting requirements. For example, because many state siting statutes already require a permit applicant to propose or consider a number of different locations for a proposed facility, existing siting and permitting processes already generate some of the information that would be useful in defining what is an appropriate comparison population. Additionally, several federal environmental statutes, most notably the National Environmental Policy Act, require the government to evaluate alternatives to a proposed project, and this information could prove useful in selecting an appropriate comparison population. Furthermore, the EPA, in both the Revised Investigation Guidance and the Recipient Guidance, encourages states to collect demographic information and pollution data about high risk populations, and this information could prove useful in selecting both the affected population and an appropriate comparison population.
Nevertheless, in investigating and resolving Title VI administrative complaints, the EPA has ultimate responsibility in researching and assessing any disputed factual issues. If any necessary information about comparison populations is not available, the EPA should work with recipients and complainants to develop such information. Moreover, the EPA should develop guidelines for determining appropriate comparison populations. In selecting a comparison population, the Agency needs to evaluate whether a recipient's siting criteria are legitimate minimum requirements or whether the recipient's criteria are likely to be masks for discriminatory decisions. An especially sensitive problem is the role of local land use restrictions that may be beyond the authority of the recipient, but may effectively foreclose some areas from consideration. The EPA should examine whether the recipient can preempt, mitigate or avoid discriminatory local land use regulations. By carefully evaluating a recipient's siting criteria to determine whether all stated criteria are legitimate and selecting appropriate comparison populations, the EPA can improve its process for analyzing Title VI disparate impact complaints.
