United States: A Sleeping Giant Awakens (Maybe?) – "Environmental" Enforcement Of Title VI Of The Civil Rights Act Of 1964 In The Era Of The Biden Administration

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 commitment to its original principles (follow the science, follow the law and be transparent), it now adds a new foundational principle - advance environmental justice and equity.  EPA emphasizes the importance of this fourth foundational principle by making environmental justice and enforcement of the Civil Rights Act of 1964 as the second of the six goals of the Plan, just below the first goal to "tackle the climate crisis."²  The stated purpose of this civil rights-driven goal is to "take decisive action to advance environmental justice and civil rights" and the Plan specifically highlights EPA's commitment to strengthen the External Civil Rights Office (ECRO) and its ability to enforce federal civil rights laws to their "fullest extent" by conducting "affirmative investigations" in overburdened communities and securing timely and effective resolutions to address discrimination. 

Title VI of the Civil Rights Act contains two provisions EPA considers as the basis for environmental justice claims and policy.  First, Section 601 provides that no person shall "on the grounds of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subject to discrimination under any program or activity" covered by Title VI.  Second, Section 602 authorizes federal agencies to "effectuate the provisions of Section 601 by issuing rules, regulation or orders of general applicability." 

To effectuate Title VI, EPA has promulgated regulations that are designed to ensure that recipients of federal funds do not take actions that are intentionally discriminatory or have a discriminatory effect based on race, color, or national origin. These regulations authorize EPA to conduct affirmative compliance reviews and provide a process for affected communities to file a Title VI complaint. After a complaint is filed, EPA has 20 days to determine whether it merits an investigation and 180 days to issue a preliminary finding.  If EPA makes a finding of discrimination, it must request that the recipient of funds address the problem voluntarily.  If the recipient does not take voluntary actions, EPA can refuse to continue providing federal funds. 

Historically, very few Title VI complaints have resulted in concrete action by EPA. A 2016 study by the U.S. Commission on Civil Rights (Commission) concluded that EPA had failed to effectively carry out its environmental justice objectives, leaving sensitive communities at risk. The Commission concluded that EPA had never made a formal finding of discrimination nor withdrawn funding on the basis of civil rights violations.  Similarly, a 2015 investigation by the Center for Public Integrity found that EPA's failure to enforce Title VI extends over at least two decades despite receiving hundreds of complaints.  ERCO did not make a single formal finding of discrimination until President Obama's tenure and then ERCO only 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 in Alexander v. Sandoval that there is no private right of action to pursue Section 602 claims for disparate impacts.³   As a result, EPA is the sole body that can pursue these claims. There has been some indications that the Biden administration or the current Congress may try reverse the implication of Sandoval.  For example, in March 2021, House and Senate Democrats introduced the Environment Justice for All Act, which would amend Title VI of the Civil Rights Act to clarify that Section 601 includes both intentional acts of discrimination and actions that have a disparate impact and add a private right of action under Section 602, essentially overturning the Supreme Court's decision in Sandoval.  Although passage of this law is uncertain as Congress tackles higher priority issues, successful passage would mean that individuals could pursue Title VI disparate impact actions directly in court, without having to rely on EPA.⁴

Despite EPA's historical hesitant pursuit of Title VI actions, the tide  may be turning as evidenced by statements in the Strategic Plan and recent actions taken by EPA as discussed below. However, so far, all of EPA actions are in the investigatory and saber-rattling stage. Remaining to be decided is the pivotal issue of what impact EPA may have when it runs into statutes and regulations that limit the scope of a state agency's non-discretionary review and permitting authority.

Missouri.  EPA's ERCO is investigating whether the Missouri Department of Natural Resources (MDNR) violated the rights of residents of St. Louis's Dutchtown, a predominantly Black and Hispanic neighborhood, by issuing an air control permit to a Kinder Morgan facility that separates fuel products into gasoline and other products. MDNR had rejected an environmental group's request for an evaluation of disparate impacts during the public comment period. The environmental group responded by filing a Title VI Complaint with EPA, making broad-based claims of discriminatory actions by MDNR in its permitting and regulatory actions over numerous years.  In a March 30, 2021 letter to MDNR, EPA announced its preliminary finding that MDNR's program is not in conformance with EPA civil rights regulations and indicated additional investigation of the issuance of the permit is ongoing. Missouri has responded that the claims lack merit.

Michigan. On November 16, 2021, residents of a Detroit neighborhood and an environmental group filed a civil rights Complaint  with EPA against Michigan Department of the Environment, Great Lakes, and Energy (EGLE) with regard to a permit issued to the Stellantis Jeep plant to significant expand the facility.  To obtain the permit for this expansion, one of the first new vehicle assembly plant in thirty years, Stellantis was required to offset the new emissions by reducing emissions at another of its facilities. The increase in emissions at the Detroit plant came, however, as a result of reducing emissions in a less racially-diverse and higher-income neighborhood. Beyond these issues, the Complaint also alleges that residents have also been exposed to intense odor issues from the existing operations at the facility. Stellantis indicates that it is addressing the odor issues and notes that the facility would create 5000 jobs that would not occur without the offset. No actions have been taken on the Complaint to date.

Michigan.  On September 16, 2021, in response to a Title VI Complaint filed by an environmental group, EPA requested that EGLE delay issuance of a final general permit to Ajax Materials Corporation to install and operate a new hot-mix asphalt plant in Genesee township, near the Flint, Michigan border.  The proposed plant would be located less than 1600 feet from public housing.  The facility would be constructed on an undeveloped parcel, zoned for heavy industrial, in a primarily low-income minority community.  EPA requested performance of a cumulative impacts analysis of air emissions from the facility and surrounding sources. Notably, EPA requested EGLE to consider an alternative location for the facility.  Although EGLE did provide additional time to review the proposed permit and respond to public comments, the agency concluded that it was bound by regulations and issued the final permit on November 15, 2021.  EGLE did note that, in response to public comments, it had included a number of site-specific conditions and restrictions to safeguard the surrounding community.  EGLE concluded that Ajax had met all conditions for permit issuance and argued that most of EPA's objections were outside the scope of EGLE's authority to consider.  EGLE stressed the importance of its consistent implementation of permitting rules and highlighted the limitations of federal and state environmental regulations to address the alleged concerns raised by the residents.

Illinois.  On January 25, 2021, in response to a complaint filed by a number of neighborhood groups,  EPA announced a civil rights investigation regarding the issuance of a permit for a new scrap shredder in a low-income, predominantly Latino neighborhood on Chicago's southeast side.  Particular concerns were raised after the owner of the facility was granted a permit to construct the facility in this disadvantaged community after agreeing to close a similar operation in Lincoln Park, a wealthy, largely white neighborhood on the city's North Side, after neighborhood complaints.  In an action commended by EPA, Chicago announced that it was pausing plants to permit the facility in response to the civil rights concerns and would conduct a cumulative impacts analysis.  This study is ongoing and will be completed in 2022.  The owner of the proposed scrap metal facility has sued the City of Chicago for $100 million in damages for the delayed permit.

Alabama.  On November 9, 2021, the Department of Justice announced a Title VI investigation regarding public health funding of wastewater disposal in primarily Black communities.  The communities reportedly have been plagued by inadequate sewage disposal for years despite the State and Lowndes County Health Departments receiving millions of dollars in funding under the  Rural Septic Tank Access Grant of 2019.  The investigation will also examine whether the State and Lowndes County health departments' policies and practices have caused Black residents of Lowndes County to have diminished access to adequate sanitation systems and to disproportionately and unjustifiably bear the risk of "adverse health effects associated with inadequate wastewater treatment, such as hookworm infections."  This investigation marks the Department of Justice's first Title VI environmental justice investigation for one of the department's funding recipients.

Texas.  On October 15, 2021, EPA accepted a Title VI complaint against the Texas Commission of Environmental Quality (TCEQ) regarding TCEQ's regulation of the Oxbow Calcining plant in Port Arthur, Texas -- which manufactures petroleum coke, one of the largest sources of sulfur dioxide air emissions in Texas, larger than other refineries and petrochemical areas in the Port Arthur area.  Among other  issues, the environmental group's Complaint  noted that TCEQ has not required the plant to install a scrubber to control sulfur dioxide emissions, equipment that is found on most modern facilities. The Complaint requests that TCEQ  issue a stronger air pollution control permit for the plant, with particular focus on compliance with health-based air quality standards for sulfur dioxide. 

Concluding Thoughts:

• EPA is taking the first steps to exercise civil rights authorities to influence environmental activities by the state regulatory community and has taken more civil rights-based actions in the past year than in the previous 20+ years.  Whether the impact of these actions extend beyond starting the investigation remains to be seen.  The ultimate penalty, denial of federal funds, would be a bold move and may be counterintuitive to continued effective enforcement of the programs.  
• Many of the EPA letters initiating the Title VI investigations refer to EPA's EJSCREEN tool as one basis for accepting the Title VI complaint.  EJSCREEN is an environmental justice mapping and screening tool that combines environmental data indicators to provide environmental justice indexes for decision-making.  The regulated community is advised to utilize this tool to understand the lens through which EPA is viewing the facility and the neighborhood.
• The facilities most "at risk" for delays and other permitting impacts are those "new" facilities and or significant expansions of existing facilities located in proximity to low-income historically-disadvantaged communities.  Red flags include moving the facility from a higher income community to a low income community as well as the state regulatory agency's failure to respond to environmental justice complaints during the permitting process.  In addition, ongoing compliance issues before expanding a plant are sure to raise community concerns.  
• Promises of economic returns and jobs related to the facility in question are not necessarily going to be legally responsive to environmental justice concerns.  
• As noted by Michigan's EGLE, a state agency's permit decision-making is constrained by statute and existing regulations. If a permit application is in conformance with regulatory requirements, the agency arguably is compelled to issue the permit.  Failure to do so would make the action subject to challenge as arbitrary and capricious.  

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