At the core of many environmental justice controversies are claims of racial injustice. Although the evidence is not uniform, numerous studies show that a variety of environmental harms are disproportionately located in communities of color, including air pollutants, air toxics, facilities that report under the Toxic Release Inventory (TRI) program, occupational environmental hazards, hazardous waste treatment, storage and disposal facilities, and other environmental harms.² Moreover, while disparate harms also are found in low income communities, most research shows that race is a more significant predictor than income of where environmental burdens will be located.³
Environmental justice advocates understandably have sought to utilize Title VI of the Federal Civil Rights Act to challenge inequitable environmental decisions. Title VI bars racial discrimination by any entity receiving federal funds, including, under implementing regulations adopted by EPA, actions that have discriminatory impacts. Initially, environmental justice communities looked to Title VI as a potential redress for, among other things, siting and expansions of facilities in overburdened communities. But Title VI has been a grand disappointment to impacted communities, because of administrative and judicial hostility to such claims.

Administrative complaints filed to enforce Title VI have languished for years at EPA, the agency that has received the most complaints from environmental justice communities. As of February, 2003, EPA had received 135 complaints, and decided only one on the merits (adversely to environmental justice plaintiffs) - the Select Steel case.⁴ In 2001, the Supreme Court ruled that there is no private right of action to enforce Title VI's disparate impact regulations,⁵ and the Third Circuit has held that 42 U.S.C. section 1983 also cannot be used by private parties to enforce the regulations.⁶

 In California, however, the landscape is brighter for civil rights claims. State anti-discrimination law since 1980 has provided an analogue to Title VI's disparate impact regulations. Moreover, as a result of recent statutory amendments, a private right exists to enforce these regulations, and the regulations apply directly to state agencies. Thus, California law provides, at least with respect to state funded and state agency activities, a remedy that no longer exists under Title VI after Sandoval.

The starting point is Cal. Gov't Code 11135, which prohibits discrimination by entities receiving state funding or by state agencies themselves. The section provides:

"No person in the State of California shall, on the basis of race, national   origin, ethnic group identification, religion, age, sex, color, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state."

Prior to 2001, the statute only applied to activities funded by the state, including "any project, action, or procedure undertaken directly by recipients of State support or indirectly by recipients through others."⁷ In 2001, the statute was amended to specifically cover any program or activity "conducted, operated or administered by the state or any state agency."⁸ This is different from Title VI, which does not apply to federal agencies, but only recipients of federal funding, (usually state or local agencies). The change is highly significant from an environmental justice perspective, since in California, as in most states, the major federal environmental statutes are administered by state and local agencies. In fact, state and local agencies, particularly those that have permitting authority, have been the target of the great majority of Title VI complaints filed but largely unaddressed under federal law.
The statute also authorizes the Secretary of the Health and Welfare Agency to adopt standards for determining which practices are discriminatory.⁹

Implementing regulations adopted in 1980 prohibit the carrying out of programs or activities that have a racially discriminatory impact. The regulations generally provide that it is a discriminatory practice to "utilize criteria or methods of administration that...have the purpose or effect of subjecting a person to discrimination" on the basis of race or ethnicity (as well as other factors).¹⁰ Of particular interest in the environmental context, the regulations specifically discuss siting of facilities and the composition of planning or advisory boards. The regulations define as a discriminatory practice "to make or permit selections of sites or locations of facilities...that have the purpose or effect of excluding persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity.¹¹ Thus, a pattern of approving industrial facilities or undesirable land uses in communities of color, or even an individual land use decision, could give rise to a violation of the regulations.

Additionally, the regulations make it unlawful to "exclude a person [based on race] from participation as a member of a planning board or advisory board. Under this requirement, it is a discriminatory practice...to fail to make reasonable efforts to achieve a representative board. However, such requirement is not deemed to impose adherence to a quota system."¹² This section could be the basis of challenging the composition of planning boards, zoning commissions or other decision making bodies that do not reflect the composition of the relevant community. This provision is also important, as residents in overburdened communities historically have been excluded from decision-making processes by a variety of intentional and unintentional obstacles.¹³

While section 11135 clearly can be enforced administratively,¹⁴ there had been a split in the case law as to whether it was also judicially enforceable. However, in 1999, and again in 2001, the legislature adopted amendments clarifying that the statutory requirements can be enforced in a private right of action, and that there is no requirement to exhaust administrative remedies before filing suit. Cal. Gov't Code § 11139 now provides that "[t]his article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies" (emphasis added). The accompanying legislative history makes clear that no exhaustion of administrative remedies is required.¹⁵ (Notably, the amendment clarifying that a private right of action exists to enforce both the statue and regulations was adopted in 1999, nineteen years after the discriminatory impact regulations were promulgated by the California Health & Welfare Agency. Since the amendment explicitly refers to the regulations, it weakens any argument that the discriminatory effect regulations go beyond what the agency was authorized to adopt under 11135.)

Thus far, there has been very little judicial interpretation of section 11135 to date (and none since the 1999 and 2001 amendments broadening the statute were adopted), and few if any administrative complaints raising environmental issues have been filed with state agencies. But this anti discrimination tool is certain to become increasingly important to advocates in California in the future, in light of the judicial and administrative antagonism to civil rights claims at the federal level. In this respect, California may soon emerge as the leader in the effective use of civil rights laws to address environmental inequities.

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