Resurrecting Environmental Justice: Enforcement of EPA's Disparate-Impact Regulations Through Clean Air Act Citizen Suits

Abstract

The environmental justice movement aims to eradicate disparate siting of environmental hazards in minority and low-income communities. Prior to the Supreme Court’s decision in Alexander v. Sandoval, environmental justice advocates had focused their efforts on enforcement of EPA’s disparate-impact regulations. These regulations prohibit recipients of federal funding from administering any program that has the effect of racial discrimination. However, the Sandoval decision declared that no private right of action existed to enforce the regulations. Despite this significant setback, the regulations may still be enforceable in circumstances where an appropriate statutory handle exists. For example, section 110(a)(2)(E) of the Clean Air Act requires states to provide assurances that their plans comply with federal law. To the extent the disparate-impact regulations remain valid federal law, they may be enforced through actions to compel EPA to reject plans that do not include the requisite assurances. This Note explores the substantive and procedural issues surrounding such actions.