State and Federal Civil Rights Compliance

Why has civil rights law, after half a century, failed to address racial disparities in access to clean air, water, and land? Answers to this question are well-known. The current administration’s whole-of-government approach to environmental justice revisits plans from 1994.[i] Interest in performance measures recalls planning documents from 1996.[ii] Attempts to conduct meaningful equity analysis pick up where a 1988 Science Advisory Board report ends.[iii] EPA’s attention to affirmative, “proactive” enforcement by states revives the mission of a 1998 Federal Advisory Committee.[iv] Communities as equals among parties to a dispute reverses EPA’s prior view of complainants as “tipsters,”[v] a 2000 decision to downgrade their evidence,[vi] and a 1998 decision that rendered their concerns, beyond compliance with applicable health-based standards, moot.[vii]

The fact that these shifts are underway, without the benefit of a single change to rule or statute, makes clear that EPA could have sought compliance with civil rights laws decades ago. Rather than expend the labor necessary to meld environmental and civil rights laws, the agency told itself stories. That environmental standards alone can police thousands of agency actions for discrimination.[viii] That much of the Title VI complaint investigation process is discretionary, even informal. That cooperative federalism renders EPA’s work, compared to other agencies such as DOT and HUD, exceptional.[ix] And that remedies under the statute, such as rescinding funds from state and local programs, are at odds with the daily practice of environmental protection.[x] Unable to acknowledge that civil rights laws create independent legal duties, EPA made several missteps in the 1990s that all but ensured its failure to exhibit zero tolerance or impose meaningful remedies for discrimination. These were acknowledged in meetings organized between EPA leadership and a small group of activists and attorneys, including CLEANR’s director, Gregg Macey. The meetings began in 2011 with eight questions to clarify how EPA determines whether a Title VI complaint presents a cognizable claim:

1. EPA regulations for Nondiscrimination in Programs Receiving Federal Assistance from the Environmental Protection Agency, 40 C.F.R. pt. 7.35(b)-(c) (2000), prohibit recipients of federal funds (hereinafter “recipients”) from using “criteria or methods of administering [their] program[s] which have the effect of subjecting individuals to discrimination because of their race” and prohibit recipients from “choos[ing] a site or location of a facility that has the purpose or effect. . . of . . . subjecting [individuals] to discrimination under any program . . . on the grounds of race. . . .” What is EPA’s operative definition of “effect”? What is EPA’s operative definition of “adverse effect”?
   
2. Does EPA follow prior Title VI guidance documents and limit “effect” to health effects? How, if at all, does EPA consider economic, social, psychological, and cultural harms as part of its analysis of “adverse effects”? How, if at all, does EPA consider cumulative and/or synergistic effects as part of its analysis of adverse effects? How, if at all, does EPA account for background stressors, facility accidents, and/or chronic noncompliance with existing permit requirements when it quantifies the “effects” of a recipient’s actions?
   
3. For Title VI complaints that are under review or that have been accepted, partially accepted, or referred, how will EPA decide whether there is sufficient proof of an adverse effect to establish a violation of the statute? Will EPA rely on a “differential exposure” standard such as the standard applied to the proposed Shintech facility in Convent, Louisiana in 1998, a “differential risk” standard, or some other approach? Can you point us to any document(s) that explains how EPA will decide whether the effects of a recipient’s actions are sufficiently adverse to constitute a violation of Title VI and its implementing regulations?
   
4. For Title VI complaints that are under review or that have been accepted, partially accepted, or referred, how will EPA define the population affected by a recipient’s actions? Will EPA rely on exposure pathway, proximity of a facility, or some other approach? How will EPA define the comparison population? Will EPA base the comparison population on the recipient’s jurisdiction under the relevant environmental statute, or will it use some other approach? How will EPA define the degree of disparity between the “affected” and “comparison” populations necessary to establish a violation of the statute?
   
5. For Title VI complaints that are under review or that have been accepted, partially accepted, or referred, will EPA apply a presumption of “no adverse impact” when the facility in question is in compliance with all relevant environmental standards? If and when EPA applies a presumption of no adverse impact under such circumstances, what data will EPA collect and what analyses will EPA perform in order to test whether that presumption has in fact been rebutted? What role will EJ screening tools or other approaches under development by EPA play in this and other efforts to respond to complaints?
   
6. Will EPA reject pending or future Title VI complaints that involve permit actions that will result in a decrease in total facility emissions or in emissions of pollutants of concern? If so, what level of decrease in overall emissions or in emissions of pollutants of concern would be necessary for EPA to close its investigation of a Title VI complaint?
   
7. How will a recipient’s efforts to mitigate the effects of its actions influence EPA’s investigation of whether there is a violation of Title VI? What level of mitigation will EPA consider sufficient to avoid a finding that a recipient violated the statute? How will EPA determine whether area-specific agreements between a recipient, residents, and other stakeholders that promise to reduce adverse impacts provide adequate mitigation of the effects of a recipient’s actions?
   
8. What will a recipient be required to demonstrate to establish a legally sufficient justification for an adverse impact?[xi]

The group evolved and is now a thriving network known as the Title VI Alliance. In 2011, its members knew – but agency staff did not appear to know – that the above questions were previously asked in February 1998, when the Office of Civil Rights issued an Interim Guidance for Investigating Title VI Administration Complaints Challenging Permits,[xii] in March 1999, in a report by a Title VI Implementation Advisory Committee,[xiii] in August 2000, when EPA issued a Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits,[xiv] and every year thereafter. EPA’s view of environmental racism as a legacy issue beyond its ability to address, made clear by the Administrator in 1992,[xv] worked its way into each meeting. Community leaders spent hours repeating EPA’s own findings to agency staff flanked by a row of attorneys. The above documents anchored discussions around permitting – to the exclusion of other agency actions – and “adverse” impacts, narrowly cast in early Title VI decisions as immediate, subject to existing standards, and cognizable within an agency’s authority. Shintech, Select Steel, and Padres Hacia Una Vida Mejor formed a thicket of precedent, both factually inaccurate and legally unjustified. The message to communities, who understand a permit as a gateway to a wide range of health impacts, non-health-related stressors, and risks; and permits as a weigh station along a continuum of agency discretion that begins with risk and criteria documents and continues through decisions to renew, license, monitor, inspect, enforce, and even rescind, fine, or jail, reads as follows: You may sue for intentional discrimination if you bring sufficient evidence of racial animus.[xvi] Otherwise, you may try to prove disparate impact of a program, policy, or practice of a fund recipient, but only through an administrative complaint and only if you demonstrate a disparity between an affected population and an appropriate comparison population.[xvii] Further, the disparity must be adverse and significant.[xviii] And it must lack adequate justification – economic, technological, or otherwise.[xix] EPA’s approach was never finalized after unlikely pockets of civil society eviscerated the guidance document.[xx] Yet it continues to visit death by a thousand cuts.

Title VI administrative complaints filed with EPA have a 0.3% success rate.[xxi] Administrations come and go. Each declares preventing discrimination a “priority”[xxii] and Title VI “the most powerful tool in the arsenal”[xxiii] for environmental justice. Every few years, the Office of Inspector General, Government Accountability Office, and US Commission for Civil Rights revisit critiques of agency departments.[xxiv] Residential zip code remains among the best predictors of life expectancy in the United States.[xxv] Millions learn, work, pray, sleep, and breathe near industrial sites, highways, aerosolized pesticides, waste fields, and a cacophony of wells, pipes, pits, and tanks. They move through dangerous landscapes. Among them are over 1000 “sacrifice zones,”[xxvi] accreted remnants of settler colonialism, slavery, and racial capitalism.[xxvii] For example, in St. James, Louisiana, the Coalition Against Death Alley, Louisiana Bucket Brigade, and RISE St. James fight against not only expulsive zoning[xxviii] and permits that could triple the level of pollution in the parish,[xxix] but also attempts to criminalize visits to where their ancestors were laid to rest.[xxx] There are occasional, pyrrhic victories. Lawyers for generations of Latinx students in Angelita C., a complaint filed in June 1999, accepted for investigation in December 2001, revived with a preliminary finding in April 2011, and ended via settlement with California’s Department of Pesticide Regulations in August of that year, refer to Title VI as a “right without a remedy.”[xxxi] The settlement was supposed to represent a high-water mark for the first fifty years of EPA’s external civil rights practice. 

Today, the discussion has shifted toward affirmative compliance with federal as well as state civil rights laws. CLEANR works to facilitate and critically evaluate this dramatic shift.

Current Projects

CLEANR’s interdisciplinary team, including a core of UCI law attorneys, professors, law students, geospatial analysts, historians, and anthropologists, are “on call” to travel to frontline communities in California, make presentations, convene meetings, facilitate decisions whether to pursue state or federal civil rights claims which center collective experience of environmental pollution, draft complaints and supporting documents, and find alternative routes to address systemic elements of environmental racism that, while included in complaints, are not subject to rigorous analysis by agency staff. We also push back against the inordinate focus on permitting in Title VI policy documents and guidance. We analyze prior complaints, conduct meta-analysis using several lenses including critical environmental justice, and invite community leaders to retell their experiences through a variety of forums. We revisit the longstanding inability to define key terms in Executive Order 12898, including “disproportionately high and adverse.” We review best case Title VI complaint resolution, including whether use of alternative dispute resolution and settlement are appropriate and the additional burdens that they place on already underserved communities. We organize events around key, unanswered questions in state and federal civil rights practice. And we partner with communities and agencies to explore the potential for historical policies and related, ongoing harms to inform a variety of actions, including screening, targeted enforcement, and allocation of resources. For more information, please contact Dr. Gregg Macey, CLEANR Director.

Past Policy Workshops

• Golden Gate University Environmental Law and Justice Clinic website
• Center on Race, Poverty and the Environment website