109 Iowa L. Rev. 1335
Abstract
Circuit courts are divided as to whether Section 602 of Title VI of the 1962 Civil Rights Act creates a private right of action enforceable under 42 U.S.C. § 1983. In the past, many environmental justice groups have brought their claims under Section 602, since it is easier to prove disparate impact as opposed to direct discrimination. However, recent trends in Section 1983 jurisprudence seem to indicate that unless the statute expressly creates a private right of action, it is usually not enforceable under Section 1983. Moreover, courts have muddled substantive due process claims related to “state-created dangers” by adding subjective thresholds (e.g., private actor requirements, “shock the conscience” standards, and mens rea requirements). The Administrative Procedure Act (“APA”) allows individuals to challenge agency compliance with the National Environmental Policy Act (“NEPA”) and seek judicial review of agency decisions implicating environmental justice issues; therefore, NEPA challenges through the APA would be an appropriate alternative to Section 1983 actions. In addition to the procedural mechanisms available through the APA, the Inflation Reduction Act of 2022 (“IRA”) includes several sources of funding dedicated to addressing environmental justice issues throughout the country. With a clear mandate from Congress, NEPA challenges will be the most effective strategy to address environmental justice concerns along the U.S.-Mexico border where most environmental justice issues are linked to major federal actions.