On 4/24/01 the U.S. Supreme Court ruled 5-4 that there is no private right of action to enforce "disparate impact" regulations under Title VI of the Civil Rights Act, except in the case of "intentional discrimination." The NAM filed a friend of the court brief on 11/13/00, with the Supreme Court, arguing that Congress did not create a private right of action in federal court against a state agency receiving federal financial assistance. The NAM argued that a cause of action for disparate impact under Title VI would be applicable to environmental permitting statutes such as the Clean Air Act and the Clean Water Act. Exposing permit applicants to these ill-defined lawsuits unrelated to protecting the environment would add substantial uncertainty and delay to the already arduous process of obtaining an environmental permit.This case involved a challenge to Alabama’s English-only policy for administering driver’s license examinations brought under disparate impact regulations drafted by the Department of Transportation and Department of Justice. One of the issues was whether private individuals could enforce disparate impact regulations by suing state agencies that receive federal grant funds. The Eleventh Circuit held that they could.
This stunning decision from the Supreme Court supports the NAM's and the Business Network for Environmental Justice's (BNEJ) argument to EPA's Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, that nothing in Title VI or its legislative history suggests that Congress ever imagined that this law would be used to prohibit unintentional disparities in environmental quality.
This decision was expected to have a major impact on an April 19, 2001, U.S. District Court of New Jersey decision. That court held that the New Jersey Department of Environmental Protection violated the EPA's disparate impact regulations (section 602) of Title VI by issuing a permit that only considered technical-emissions standards, and not the "totality of the circumstances" surrounding the operations of a proposed cement facility. However, in May, that court reaffirmed its decision, holding that the state must consider factors that a cement facility may cause an adverse disparate impact on an overwhelmingly minority community in New Jersey.