A Sleeping Giant Awakens (Maybe?) "Environmental" Enforcement Of Title VI Of The Civil Rights Act Of 1964 In The Era Of The Biden…

On October 1, 2021, the Environmental Protection Agency (EPA)issued its draft Strategic Plan (Plan) for 2022 2026.1 While the Plan renews EPA's commitmentto its original principles (follow the science, follow the law andbe transparent), it now adds a new foundational principle - advanceenvironmental justice and equity. EPA emphasizes theimportance of this fourth foundational principle by makingenvironmental justice and enforcement of the Civil Rights Act of1964 as the second of the six goals of the Plan, just below thefirst goal to "tackle the climatecrisis."2 The stated purpose of this civilrights-driven goal is to "take decisive action to advanceenvironmental justice and civil rights" and the Planspecifically highlights EPA's commitment to strengthen theExternal Civil Rights Office (ECRO) and its ability to enforcefederal civil rights laws to their "fullest extent" byconducting "affirmative investigations" in overburdenedcommunities and securing timely and effective resolutions toaddress discrimination.

Title VI of the Civil Rights Act contains two provisions EPAconsiders as the basis for environmental justice claims andpolicy. First, Section 601 provides that no person shall"on the grounds of race, color, or national origin, beexcluded from participating in, be denied the benefits of, or besubject to discrimination under any program or activity"covered by Title VI. Second, Section 602 authorizes federalagencies to "effectuate the provisions of Section 601 byissuing rules, regulation or orders of generalapplicability."

To effectuate Title VI, EPA has promulgatedregulationsthat are designed to ensurethat recipients of federal funds do not take actions that areintentionally discriminatory or have a discriminatory effect basedon race, color, or national origin. These regulations authorize EPAto conduct affirmative compliance reviews and provide a process foraffected communities to file a Title VI complaint. After acomplaint is filed, EPA has 20 days to determine whether it meritsan investigation and 180 days to issue a preliminary finding.If EPA makes a finding of discrimination, it must request that therecipient of funds address the problem voluntarily. If therecipient does not take voluntary actions, EPA can refuse tocontinue providing federal funds.

Historically, very few Title VI complaints have resulted inconcrete action by EPA. A2016 studyby the U.S. Commission onCivil Rights (Commission) concluded that EPA had failed toeffectively carry out its environmental justice objectives, leavingsensitive communities at risk. The Commission concluded that EPAhad never made a formal finding of discrimination nor withdrawnfunding on the basis of civil rights violations. Similarly,a2015 investigationby the Center forPublic Integrity found that EPA's failure to enforce Title VIextends over at least two decades despite receiving hundreds ofcomplaints. ERCO did not make a single formal finding ofdiscrimination until President Obama's tenure and then ERCOonly issued two formal findings of discrimination.

This somewhat cumbersome and extended process exists, in part,because of the United States Supreme Court's 2001 decision inAlexander v. Sandoval that there is no private right of action topursue Section 602 claims for disparate impacts.3As a result, EPA is the sole body that can pursue theseclaims. There has been some indications that the Bidenadministration or the current Congress may try reverse theimplication of Sandoval. For example, in March 2021, Houseand Senate Democrats introduced theEnvironment Justice for All Act, which wouldamend Title VI of the Civil Rights Act to clarify that Section 601includes both intentional acts of discrimination and actions thathave a disparate impact and add a private right of action underSection 602, essentially overturning the Supreme Court'sdecision in Sandoval. Although passage of this law isuncertain as Congress tackles higher priority issues, successfulpassage would mean that individuals could pursue Title VI disparateimpact actions directly in court, without having to rely onEPA.4

Despite EPA's historical hesitant pursuit of Title VIactions, the tide may be turning as evidenced by statementsin the Strategic Plan and recent actions taken by EPA as discussedbelow. However, so far, all of EPA actions are in the investigatoryand saber-rattling stage. Remaining to be decided is the pivotalissue of what impact EPA may have when it runs into statutes andregulations that limit the scope of a state agency'snon-discretionary review and permitting authority.

Missouri. EPA's ERCO isinvestigating whether the Missouri Department of Natural Resources(MDNR) violated the rights of residents of St. Louis'sDutchtown, a predominantly Black and Hispanic neighborhood, byissuing an air control permit to a Kinder Morgan facility thatseparates fuel products into gasoline and other products. MDNR hadrejected an environmental group's request for an evaluation ofdisparate impacts during the public comment period. Theenvironmental group responded by filing a Title VIComplaintwith EPA, making broad-basedclaims of discriminatory actions by MDNR in its permitting andregulatory actions over numerous years. In a March 30,2021letterto MDNR, EPA announced itspreliminary finding that MDNR's program is not in conformancewith EPA civil rights regulations and indicated additionalinvestigation of the issuance of the permit is ongoing. Missourihas responded that the claims lack merit.

Michigan.On November 16, 2021,residents of a Detroit neighborhood and an environmental groupfiled a civil rightsComplaint with EPA against MichiganDepartment of the Environment, Great Lakes, and Energy (EGLE) withregard to a permit issued to the Stellantis Jeep plant tosignificant expand the facility. To obtain the permit forthis expansion, one of the first new vehicle assembly plant inthirty years, Stellantis was required to offset the new emissionsby reducing emissions at another of its facilities. The increase inemissions at the Detroit plant came, however, as a result ofreducing emissions in a less racially-diverse and higher-incomeneighborhood. Beyond these issues, the Complaint also alleges thatresidents have also been exposed to intense odor issues from theexisting operations at the facility. Stellantis indicates that itis addressing the odor issues and notes that the facility wouldcreate 5000 jobs that would not occur without the offset. Noactions have been taken on the Complaint to date.

Michigan. On September 16, 2021,in response to a Title VI Complaint filed by an environmentalgroup, EPArequestedthat EGLE delay issuance of afinal general permit to Ajax Materials Corporation to install andoperate a new hot-mix asphalt plant in Genesee township, near theFlint, Michigan border. The proposed plant would be locatedless than 1600 feet from public housing. The facility wouldbe constructed on an undeveloped parcel, zoned for heavyindustrial, in a primarily low-income minority community. EPArequested performance of a cumulative impacts analysis of airemissions from the facility and surrounding sources. Notably, EPArequested EGLE to consider an alternative location for thefacility. Although EGLE did provide additional time to reviewthe proposed permit and respond to public comments, the agencyconcluded that it was bound by regulations andissuedthe final permit on November15, 2021. EGLE did note that, in response to public comments,it had included a number of site-specific conditions andrestrictions to safeguard the surrounding community. EGLEconcluded that Ajax had met all conditions for permit issuance andargued that most of EPA's objections were outside the scope ofEGLE's authority to consider. EGLE stressed theimportance of its consistent implementation of permitting rules andhighlighted the limitations of federal and state environmentalregulations to address the alleged concerns raised by theresidents.

Illinois. On January 25, 2021,in response to a complaint filed by a number of neighborhoodgroups, EPA announced a civil rights investigation regardingthe issuance of a permit for a new scrap shredder in a low-income,predominantly Latino neighborhood on Chicago's southeastside. Particular concerns were raised after the owner of thefacility was granted a permit to construct the facility in thisdisadvantaged community after agreeing to close a similar operationin Lincoln Park, a wealthy, largely white neighborhood on thecity's North Side, after neighborhood complaints. In anactioncommendedby EPA, Chicago announced thatit was pausing plants to permit the facility in response to thecivil rights concerns and would conduct a cumulative impactsanalysis. This study is ongoing and will be completed in2022. The owner of the proposed scrap metal facility has suedthe City of Chicago for $100 million in damages for the delayedpermit.

Alabama. On November 9, 2021,the Department of Justiceannounceda Title VI investigationregarding public health funding of wastewater disposal in primarilyBlack communities. The communities reportedly have beenplagued by inadequate sewage disposal for years despite the Stateand Lowndes County Health Departments receiving millions of dollarsin funding under the Rural Septic Tank Access Grant of2019. The investigation will also examine whether the Stateand Lowndes County health departments' policies and practiceshave caused Black residents of Lowndes County to have diminishedaccess to adequate sanitation systems and to disproportionately andunjustifiably bear the risk of "adverse health effectsassociated with inadequate wastewater treatment, such as hookworminfections." This investigation marks the Department ofJustice's first Title VI environmental justice investigationfor one of the department's funding recipients.

Texas. On October 15, 2021,EPAaccepteda Title VI complaint against theTexas Commission of Environmental Quality (TCEQ) regardingTCEQ's regulation of the Oxbow Calcining plant in Port Arthur,Texas -- which manufactures petroleum coke, one of the largestsources of sulfur dioxide air emissions in Texas, larger than otherrefineries and petrochemical areas in the Port Arthur area.Among other issues, the environmental group'sComplaint noted that TCEQ has notrequired the plant to install a scrubber to control sulfur dioxideemissions, equipment that is found on most modern facilities. TheComplaint requests that TCEQ issue a stronger air pollutioncontrol permit for the plant, with particular focus on compliancewith health-based air quality standards for sulfurdioxide.

Concluding Thoughts:

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A Sleeping Giant Awakens (Maybe?) "Environmental" Enforcement Of Title VI Of The Civil Rights Act Of 1964 In The Era Of The Biden...