The Form and Substance of Environmental Justice: The Challenge of Title VI of the Civil Rights Act of 1964 for Environmental Regulation

EPA's Title VI disparate impact regulations have become a key component of its efforts to address environmental justice issues. However, EPA's proposed implementation of these regulations through its Draft Title VI Guidance raises serious difficulties. Its attempt to combine civil rights and environmental law doctrines in a whole-sale fashion exposes significant tensions in the regulatory premises between these areas of law. The tensions are evident in how the Guidance approaches issues of minority protections, incommensurable values, and the limits of regulatory intervention. However, there are also important parallels that substantive understandings of discrimination mid environmental degradation share. In particular, the role of rationally self-interested actions in shaping discriminatory and environmentally degrading behavior suggests that EPA must not only change how it regulates but also what its regulations focus on. EPA's Title VI regulation can serve an important function within such efforts to adjust both the form of its regulatory approaches as well as the substantive focus of regulatory solutions.