In January 2021, without any public input, the Trump Department of Justice (DOJ) prepared to issue a final rule eliminating the agency’s ability to enforce protections against discriminatory practices that have a disparate impact on protected groups. However, though the Office of Management and Budget (OMB) completed its review of the final rule on January 8, DOJ failed to publish it before President Biden took office. If published, the rule would likely have had broad interagency effects, including on EPA. For environmental justice advocates, it would have meant a dead end to an under-enforced but promising legal tool.
Background on DOJ’s and EPA’s Title VI Regulations
Generally, the purpose of Title VI of the Civil Rights Act is to prohibit discrimination on the basis of race, color, or national origin by entities that receive federal funds. Under Title VI, each agency is tasked with promulgating their own regulations to carry out these goals. Under Executive Order 12250, DOJ reviews and approves other agencies’ new or amended Title VI implementing regulations, including the partial or entire repeal of previously issued rules.
Just weeks before leaving office, the Trump DOJ pushed to finalize an amendment to DOJ’s Title VI regulations. The text of the unpublished final rule threatened to eliminate communities’ already-limited ability to challenge disparate impact discrimination—actions that are neutral on their face, but disproportionately affect or burden protected populations. While the DOJ’s action was significant, it was not surprising. The Trump Administration had “signaled its hostility” to disparate impact analysis on multiple occasions, including hints that the Department of Education would consider replacing its own Title VI regulations.
The Supreme Court has previously held in a 5-4 decision that anti-discrimination laws should be construed to allow for disparate impact claims where the law refers to the consequences of actions rather than just the mindset of actors, and where such claims are consistent with the law’s purpose. While this suggests that the Supreme Court would uphold disparate-impact regulations under Title VI, the changing Court—including three Trump appointees—provides reason to worry that if a new challenge to the disparate impact standard were brought before the Court, “opponents of disparate-impact rules might prevail.”
The unpublished rule put these anti-disparate impact sentiments into practice, amending DOJ’s Title VI regulations to only prohibit intentional discrimination, along with several other key changes discussed below. Though this rule was crafted by the Trump DOJ, it carried implications for Title VI regulations of other agencies (like EPA). Because of DOJ’s involvement in legal matters that touch all areas of government, the agency’s legal policies and practices, such as its Title VI regulations, frequently set the tone for other agencies. Indeed, in its unpublished rule, the DOJ noted that they “envision that this rule will cause other federal departments and agencies to consider similarly revising their Title VI regulations.” Thus, had DOJ published the rule, it could have led other agencies to make similar revisions to their Title VI regulations. At a minimum, the rule would have given DOJ grounds to reject other agencies’ regulations if those regulations included disparate impact language. Furthermore, had DOJ published the rule, President Biden could not have immediately reversed the decision, though Attorney General Garland could have delayed its implementation.
EPA’s Title VI Regulations
The availability of disparate impact claims under EPA’s existing Title VI regulations offers an important, but largely unenforced, tool to abate harms caused by environmental injustice.
Under the current EPA Title VI implementing regulations, recipients of EPA funding are prohibited from taking actions, including permitting actions, that (1) are intentionally discriminatory or (2) have a discriminatory effect based on race, color, or national origin. When discrimination comes in the form of disparate impacts, rather than intentional discrimination, private citizens cannot sue the offending entity in a federal court. Presently, an affected community’s only recourse is to file a Title VI complaint with the EPA, which prompts EPA to determine if there is sufficient evidence that the offending entity has violated its Title VI regulations. As a result, the agency is the sole body that can require offending entities to comply with its Title VI regulations.
Historically, EPA’s Title VI regulations have always included disparate impact discrimination. EPA’s External Civil Rights Compliance Office (ECRCO) ensures that recipients of EPA funding comply with Title VI. However, even though ECRCO has the authority to enforce these regulations does not mean that it actually enforces them. Criticizing ECRCO’s and thus, EPA’s, failure to enforce Title VI, leading environmental civil rights attorney Marianne Engelman Lado described EPA as “one of the worst civil rights enforcement offices in the U.S. government.” Notably, though, Engelman Lado recently joined EPA as deputy general counsel for environmental initiatives, suggesting a renewed enthusiasm to invest in effective Title VI enforcement by the Biden EPA.
Though EPA’s history of Title VI enforcement is disappointing, maintaining the ability for the EPA to enforce prohibitions against disparate impact discrimination is essential, particularly if a Biden EPA (or any future EPA) is willing to take more aggressive steps to fight environmental injustice. One barrier to enforcement is a lack of data—it is impossible to show that actions disproportionally affect protected populations if there is no monitoring of these effects. But even when data is available, enforcement does not necessarily follow.
Restricting EPA’s Title VI regulations to only prohibit acts that are intentionally discriminatory would spell disaster for environmental justice communities and advocates. Proving intentional discrimination is a nearly impossible standard to meet. Environmental justice advocate Bill Gallegos explains that “unless they have a noose in their hand and a statement that says we’re going to hang these people,” the intentional discrimination standard is not met. Outside of the environmental justice context, civil rights groups say that disparate impact is “one of the most important tools for showing discrimination” as it “takes into account patterns of behavior that can seem neutral and compare outcomes for different groups to reveal inequities.” These disparate impact claims “make up most discrimination litigation, as businesses and organizations rarely disclose that they are purposefully engaging in the practice.”
The Trump DOJ’s Unpublished Rule
The Trump DOJ’s unpublished amendment to its Title VI regulations would have made four key changes, all focused on eliminating the agency’s ability to ensure recipients of federal financial assistance do not engage in activities that have a disparate impact on protected populations.
First, the rule would have deleted language prohibiting recipients of federal funds from administering programs in a way that would “have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” This deletion would have meant that DOJ could only prevent recipients of federal funds from intentionally discriminating against protected groups, but not from taking facially neutral actions that disparately impact those groups. If DOJ were then to require similar changes to EPA’s Title VI regulations by using its EO 12250 authority, there would be disastrous consequences for environmental justice communities, for reasons stated above regarding the importance of the EPA’s ability to find discrimination from disparate impacts, and the insurmountable standard of proof for intentional discrimination.
Second, the rule would have eliminated the prohibition against determining a site or location of facilities in a manner that would have the “effect” of discriminating against a protected population. This would have meant that DOJ could site facilities—for example, correctional facilities—in a manner that disparately affects communities of color, as long as there was no evidence of intentional discrimination. It also means those communities could not file a Title VI complaint with DOJ challenging that decision. If similar changes were made to EPA’s Title VI regulations, environmental justice communities would have no legal recourse to challenge the disparate impacts caused by siting polluting facilities in or near their neighborhoods. There are many studies demonstrating both the historic and current disproportionate concentration of such facilities in communities of color. While the discriminatory disparate impacts of siting polluting facilities in EJ communities are rampant and well-documented, this change would require complainants to show that EPA, or the recipient of EPA funding, intentionally discriminated against them on the basis of race, color, national origin, or English language proficiency.
Third, the rule would have eliminated a portion of DOJ’s Title VI regulations that allow recipients of DOJ funds that had not previously discriminated to “overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.” Essentially, this change would have barred affirmative action policies in DOJ-funded programs where the program had no record of prior discrimination.
Fourth, in a section dealing with prohibited discriminatory employment practices, the rule would have eliminated language barring employment practices that “tend to” discriminate on the grounds of race, color, or national origin where the federal funding’s objective is not to provide employment—essentially eliminating any potential challenge to employment practices that have a disparate impact on protected groups.
Weak Legal Justifications
These proposed changes have very tenuous legal justifications, as they were based on a misleading characterization of Supreme Court precedent.
In the unpublished rule, DOJ justified these changes by claiming that the Supreme Court has held that “Title VI’s statutory prohibition extends only to intentional discrimination.” DOJ went on to explain that in Regents of Univ. of Cal. v. Bakke, the Supreme Court held that “Congress intended Title VI to prohibit ‘only those racial classifications that would violate the Equal Protection Clause’ if committed by a government actor.” Because the Supreme Court has also held that disparate impact without proof of a discriminatory purpose does not violate the Constitution’s Equal Protection clause, the Trump DOJ concluded that Congress thereby only intended Title VI to prohibit racial discrimination based on discriminatory intent, rather than disparate impact alone.
However, DOJ brushed over the fact that Title VI has two distinct sections relating to enforcement: section 601, which prohibits discrimination based on race, color or national origin in covered programs and activities; and section 602, which authorizes federal agencies to implement section 601 by issuing their own regulations.
In Alexander v. Sandoval, the Court limited claims brought by private citizens, called a private right of action, seeking to enforce section 601 to only those claims addressing intentional discrimination. But, importantly, in Sandoval the Court assumed that regulations issued by agencies under section 602 “may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under [section] 601.” In other words, the Court in Sandoval assumed that agencies could promulgate regulations prohibiting actions that had a discriminatory effect, even if those effects were not intended or motivated by animus. This assumption does not contradict the Sandoval holding because private citizens cannot sue to enforce agency regulations issued under section 602. Rather, those complaints are processed by the agency. The DOJ rule mischaracterized the Sandoval opinion by treating it as an affirmation that Title VI as a whole only extends to intentional discrimination, thus conflating the private right of action and administrative review process. DOJ further claimed that the Sandoval decision “sparked considerable uncertainty as to the validity of the disparate impact regulations that nearly every federal department and agency have promulgated.” However, DOJ failed to cite any case law or evidence supporting this statement.
Furthermore, in justifying its proposal to bar affirmative action programs in cases where there was no evidence of prior discrimination, DOJ stated that such programs “authorize intentional racial classifications, racial preferences, and other race-based actions without the supporting compelling interest and narrow tailoring that the Equal Protection Clause requires.” DOJ cites no case law in support of this claim, and indeed there is no Supreme Court authority that decisively would allow DOJ to conclude that the provision they proposed to delete is in direct conflict with the Equal Protection Clause. DOJ also assumed in its argument that such affirmative action would necessarily treat people differently based on racial classifications, yet the regulations are specifically worded to avoid that scenario. The rule’s current language specifies that such actions must address “the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.” Affirmative action programs addressing these effects, without relying on racial classifications treating individual program participants or potential participants differently, would likely not give rise to strict scrutiny.
Thus, while the unpublished rule’s text implies that DOJ’s Title VI amendments are merely following Supreme Court precedent, the rule in fact mischaracterizes that precedent in order to strip disparate impact protections from vulnerable populations and threaten to undermine decades-old agency regulations.
The procedural process by which the rule was created and reviewed likely did not comply with the Administrative Procedure Act (APA). For this rule and a number of others, including the infamous “Secret Science” rule, the Trump administration sought an exception to the typical process of notice and comment rulemaking in order to publish rules in the final months before President Biden took office.
In the case of the unpublished Title VI rule, DOJ sought an APA exception reserved for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” However, courts generally read this APA exception narrowly, and DOJ did not cite case law supporting a broader reading that could allow for use of this exception.
Despite its puzzling procedural deficiencies, the Trump DOJ submitted the rule to OMB on December 21, 2020. Two weeks later, OMB cleared it. Strangely, and for no explicit reason, DOJ never published the final rule. Notably, OMB cleared the rule just one day after an attack on the US Capitol provoked by President Trump, with participants including members of known white supremacist groups. DOJ staff may also have held the rule back in light of inevitable legal challenges targeting the rule’s weak substantive and procedural justifications.
Consequences for the Biden Administration
Current Title VI regulations at DOJ and EPA allow citizens to file administrative complaints alleging disparate impact discrimination, which the agencies then process and potentially enforce if they find sufficient evidence of the alleged discrimination. As we have seen, though, agency ability to enforce regulations prohibiting acts that disproportionately impact protected communities does not mean that agencies will, in fact, act. However, the Biden Administration has communicated that addressing environmental injustices will be a priority moving forward. Biden’s Executive Order on Tackling the Climate Crisis at Home and Abroad includes exciting steps regarding environmental justice. The EO broadly directs agencies to address environmental injustices, and seeks to strengthen EPA and DOJ’s enforcement of environmental violations that have a disparate impact on protected populations.
The broad language in this EO leaves Title VI disparate impact enforcement as a somewhat open question, though this legal pathway appears more promising than ever before for environmental justice advocates. Additionally, the fact that Marianne Engelman Lado now serves under EPA’s Office of General Counsel could be a strong signal that EPA will finally make good use of the Title VI disparate impact complaint process, given her history of filing multiple complaints under Title VI and fierce environmental justice advocacy.
Furthermore, in March 2021, House and Senate Democrats introduced the Environmental Justice For All Act, which would amend Title VI of the Civil Rights Act to clarify that section 601 includes actions that are not intentionally discriminatory but disproportionately impact communities of color, and would add a private right of action under section 602 to enforce that provision (essentially overturning Sandoval). This would mean that individuals and communities facing disparate impact discrimination would not have to rely solely on agency action, as they could turn to federal courts to remedy disparate environmental impacts.
The Trump DOJ’s proposed rollback of its Title VI regulations, justified by legal and procedural explanations that were tenuous at best, would have potentially destroyed an important legal tool for environmental justice efforts. But the administration’s unexplained decision to not publish the rule leaves DOJ and other agencies, including EPA, free to enforce their Title VI regulations that prohibit acts that have the effect of discriminating based on race, color, or national origin. Regarding environmental justice, the Biden EPA appears committed to enforcing its Title VI implementing regulations, particularly where entities act in ways that disproportionately impact disadvantaged communities. Hopefully, an executive dedicated to disparate impact enforcement will mean much more powerful defenses for protected communities.
 See Department of Justice Amendment of Title VI Regulations (proposing to amend 28 C.F.R. pt. 42). Full text available at https://www.washingtonpost.com/context/read-the-document-justice-department-s-proposed-amendment-to-title-vi-regulations/78790299-551d-4c6f-b93b-f55c07bfde86/?itid=lk_readmore_manual_9.
 The Supreme Court has expanded Title VI to also require recipients of federal funding to “take affirmative steps” to provide people with limited English proficiency (LEP) access to federally funded programs and activities. See Lau v. Nichols, 414 U.S. 563, 568 (1974).
 See DOJ Amendment of Title VI Regulations.
 See Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 545–46 (2015) (upholding disparate-impact claims under the Fair Housing Act).
 DOJ Amendment of Title VI Regulations at 10.
 See Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001).
 Recent efforts to gather more data to support increased action to address environmental injustices include Senator Ed Markey’s Environmental Justice Data Bill and President Biden’s recent executive orders creating tools to help communities and officials identify cumulative disparate impacts and health risks. See Biden’s Week One: Mapping Ambitious Climate Action at 8.
 For example, in eastern North Carolina, mountains of data demonstrated a state-issued permit for the continued operation of industrial hog farms disproportionately impacted communities of color. However, ECRCO has yet to make a formal finding of discrimination, even though North Carolina environmental justice groups first filed their complaint seven years ago. Instead, ECRCO has expressed a “deep concern about the possibility” of discrimination.
 DOJ Amendment of Title VI Regulations at 4–7.
 Id. at 4–5 (proposing to delete section 42.104(b)(2) from DOJ’s Title VI regulations).
 Id. at 5–6 (proposing to delete “or effect”—language barring disparate impact discrimination—from section 42.104(b)(3) of DOJ’s Title VI regulations).
 See, e.g., Toxic Wastes and Race in the United States; Toxic Wastes and Race at Twenty; Fumes Across the Fence-Line: The Health Impacts of Air Pollution from Oil & Gas Facilities on African American Communities.
 DOJ Amendment of Title VI Regulations at 5–6 (proposing to delete section 42.104(b)(6)(ii) from DOJ’s Title VI regulations).
 Id. at 5–7 (proposing to delete section 42.104(c)(2) from DOJ’s Title VI regulations)
 Id. at 3.
 438 U.S. 265, 287 (1978).
 Id. at 2.
 See Washington v. Davis, 426 U.S. 229, 242 (1976); Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Personnel Admin of Mass. v. Feeny, 442 U.S. 256, 272 (1979).
 See DOJ Amendment of Title VI Regulations at 2–3.
 Sandoval, 532 U.S. at 275 (referencing 42 U.S.C. 2000d; 42 U.S.C. 2000d-1). See DOJ Amendment of Title VI Regulations at 2–4 (failing to distinguish between Title VI of the Civil Rights Act § 601 and § 602).
 Sandoval, 532 U.S. at 275.
 See DOJ Amendment of Title VI Regulations at 2–4.
 Id. at 4.
 Id. at 6.
 28 C.F.R. pt. 42.104(b)(6)(ii).
 DOJ Amendment of Title VI Regulations at 7 (quoting 5 U.S.C. § 553(a)(2)).
 See Construction and application of 5 U.S.C.A. § 553(a)(2), exempting from administrative procedure act’s rulemaking requirements matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts, 41 A.L.R. Fed. 926 at § 5 (1982). See also Humana of S.C., Inc. v. Califano, 590 F.2d 1070, 1082 (D.C. Cir. 1978) (the exemption applies “when grants, benefits or other named subjects are clearly and directly implicated.”). Here, the unpublished rule seeks to introduce a new interpretation of a federal statute, not delineate the expenditure of federal funds or use of public property. Further, it would apply broadly to all recipients of DOJ funds and their programs, neither of which are named in the rule.
 See DOJ Amendment of Title VI Regulations at 7–8.
 Exec. Order No. 14008, 86 Fed. Reg. 7619, 7631 (Jan. 27, 2021).