The EPA attempts CPR on its own Civil Rights Act enforcement
“Racial discrimination in the facility site selection process cannot be uncovered with only a cursory review of the description of that process appearing in an applicant’s environmental report. If it were so easily detected, racial discrimination would not be such a persistent and enduring problem in American society. Racial discrimination is rarely, if ever, admitted. Instead, it is often rationalized under some other seemingly racially neutral guise, making it difficult to ferret out. … [T]he Staff must conduct an objective, thorough, and professional investigation that looks beneath the surface of the description of the site selection process in the Environmental Report. In other words, the Staff must lift some rocks and look under them.”
“Based upon this analysis, [the EPA’s Office of Civil Rights] preliminarily found a prima facie violation of Title VI as a result of an unintentional adverse disparate impact upon Latino schoolchildren.”
That first passage comes not from a civil rights activist, but from the Atomic Safety and Licensing Board, in its 1997 decision rejecting a company’s request for a permit to build a uranium enrichment facility in St. Charles Parish, La., a town founded by free slaves. The board denied the permit in part because 97 percent of the people in that area were African Americans, 69 percent of whom made less than $15,000 a year. The company had picked the site after reviewing and crossing off dozens of other areas that were far less poor, and far less black.
It was “perhaps the only case where a [federal] agency denied a permit to a polluting industry because of racially discriminatory impacts in the siting process,” Energy Justice Network founder Mike Ewall wrote last year in American University’s law journal, Sustainable Development, Law & Policy.
The second quote is from Rafael DeLeon, former director of the EPA’s Office of Civil Rights, in response to an administrative complaint filed under Title VI of the Civil Rights Act by the families of Latino schoolchildren exposed to toxic pesticides. (I wrote about the case, which was called Angelica C. v. California Department of Pesticide Regulation,here.) Title VI is the provision of the Civil Rights Act that says no recipient of federal funding can discriminate based on race, color, or national origin, even unintentionally. DeLeon’s statement was issued in 2011, and was the first preliminary finding of racial discrimination ever by the EPA.
What happened in the 14 years between the Louisiana case and the Angelica C. ruling, you might be wondering? Well, not much. The EPA responded to just 6 percent of of the near-250 Title VI complaints within the timeframe that the law requires. Many of those cases had been backlogged as far back as 2001. And despite its finding of racial discrimination in the Angelica C. settlement, the EPA did not admit to violating Title VI. In fact, the families of those school kids never accepted the terms of the EPA’s settlement. The agency entered into the settlement with the state without including the families.
In the last post in this series, I wrote about about the challenge of rooting out racism in EPA’s permitting decisions for polluting facilities. In this post, we’ll examine the riddle of how environmental protection is supposed to work in tandem with the Civil Rights Act — a law more popularly associated with racial disparities in education and housing. Up until 2009, EPA had few answers to that riddle. Plan EJ 2014, the agency’s blueprint for environmental justice developed under former EPA Chief Lisa Jackson, aims at providing some answers. But with the agency’s history of mishandling civil rights enforcement measures, there are still some open questions about what recourse people of color have when the EPA fails in its civil rights obligations.
“Challenges with use of Title VI of the Civil Rights Act persist,” wrote Charles Lee, the EPA’s deputy associate assistant administrator for environmental justice (geez, a mouthful), in a February blog post. It was the one terse, pessimistic sentence in Lee’s tribute honoring the 20th anniversary of a White House executive order to infuse environmental justice into federal government decisions.
But there was no way to gloss over the agency’s piteous record on enforcing civil rights, particularly during those 14 years between the Atomic Board decision in Louisiana — which justice advocates hoped the future would hold more of — and the disappointing Angelica C. settlement, which dashed many of those hopes. The agency’s webpage, “Major Milestones of EPA’s Title VI Policy Development,” shows a timeline that ends in 1999.
In 2011, Deloitte Consulting LLP released a damning report about the agency’s civil rights record, saying it “appeared to place too much emphasis on minor responsibilities, like executing heritage events, and not enough on the critical discrimination cases affecting employees and disadvantaged communities.” (Copy, Park Service?)
The civil rights reforms in Plan EJ 2014 are based on recommendations from the Deloitte report and also a Civil Rights Executive Committee created by former EPA Chief Lisa Jackson. It was Jackson who stressed environmental justice as a top priority for the EPA, saying in 2012 that she wanted the agency to create a “model civil rights program” where it was “very clear that protection of civil rights is the responsibility of every employee in the agency.” Few federal agencies came out as strongly on civil rights, despite Barack Obama being the first African American president.
As for why the agency left these problems agape for so many years, the answer varies. Brent Newell, an attorney for the California-based Center on Race, Poverty & the Environment (CPRE), which filed the Angelica C. complaint, chalks it up to a “lack of political will” on the EPA’s part, especially in the face of free market conservatives and the Congressmen and women they finance. This 2001 letter from a former agency employee alleges a work culture of “cronyism, favoritism” and “mafia mentality” among the agency’s senior management.
Lisa Garcia, Jackson’s former point person on environmental justice, told me in an interview that there was also a lack of experience among the staff in handling the social science aspects required for Title VI enforcement. So the first step toward reforming the agency was beefing up the staff, training employees on civil rights, and allocating money toward making enforcement procedures more efficient — the last one not so easy, given constant budget restraints.
To achieve that efficiency, the new enforcement staff drafted new compliance incentives, prioritization procedures, and guidance materials that explain the legal tools available for responding to complaints. This has all led to a 40 percent reduction in the Title VI backlog, Garcia said.
All of that reduction isn’t owed to efficiency, though. “Many of those are rejections and dismissals,” said Newell in our interview. “If you look at the log, you’ll see many of the complaints are dismissed as ‘untimely,’ which means EPA won’t take them up even if they’re legitimate complaints.”
You can review that log here, where it appears true that many, if not most, of the complaints have been rejected, though the document doesn’t give many details on the reasons why. In terms of resolving Title VI complaints, the EPA’s website lists one “decision,” a California complaint, filed in part by CPRE, about the permitting and siting of three hazardous waste disposal facilities in Latino neighborhoods. The EPA found no civil rights violation there. The agency also lists four settlements, including the Angelica C. case.
EPA might consider Angelica C. resolved, but the families who filed that complaint are unsettled on the matter, given they were not included in the settlement process. Caroline Farrell, CPRE’s executive director, says this reveals one of the fundamental snags of EPA’s new Title VI reforms in Plan EJ 2014 — they leave the aggrieved party with all the vexation without self-representation in the resolution.
The communities impacted by environmental racism should be “in the driver’s seat,” said Farrell. “You decide whether to settle a case, and whether [a proposed settlement] is an adequate remedy. If you are directly impacted by the issue then you should have some role in resolving that case, and determining whether the agency will do something to solve the problem.”
But it’s tougher today to involve citizens in Title VI matters than it was in the past. In 2001, CPRE won an important victory when its founder Luke Cole won a suit on behalf of residents of South Camden, N.J., against a cement company that wanted to open a plant in an already-overburdened community. That joy was killed, though, a few days later when the U.S. Supreme Court’s Alexander v. Sandoval decision severely scaled back the ability for citizens to bring suits like Cole’s. According to the court, Congress gave the power for finding disparate racial impacts exclusively to the EPA. Citizens can file administrative complaints, but it falls on the EPA to investigate and litigate, if necessary.
That exclusive power also means that the EPA can settle a Title VI complaint without involving the party who originated it, as seen in the Angelica C. case. CPRE sued to compel the agency to allow the parents of those Hispanic school kids to participate in that process, but a judge dismissed the suit in January. “Little in Title VI’s regulations indicates an intention to create an entitlement to ‘redress,’” the ruling reads. “The plaintiffs are not even guaranteed that any complaint they submit to EPA will be accepted.”
CPRE is appealing that decision, worried about the precedent it would set in terms of leaving marginalized communities even more marginalized by excluding them from these matters. (You can read the EPA’s position on this here.)
The question now is, What path to relief do citizens have for environmental harms if EPA decides to do nothing? The agency’s enforcement history proves that this is a legitimate cause for concern. Plan EJ 2014 provides better guidance for EPA staff so that inaction is less of an option, but those guidelines just came online in the past couple of years.
This year, as we commemorate the 60th anniversary of Brown v. Board of Education, the 50th anniversary of the Civil Rights Act, and last year the 50th anniversary of the March on Washington, people want to know how those civil rights protections are being, well, protected. Excluding citizens from the resolution, though? That’s like the doctor conferring with the father about how to resolve a pregnancy without including the mother. Since it’s the people who will have to live with whatever the final decision is, it seems they should have a say.