11/12/2020 - EPA Mission Tracker

EPA Undermines its Own Environmental Justice Programs

by Hannah Perls

Environmental injustice is the persistent inequitable distribution of pollution and other environmental burdens on low-income communities and communities of color. Twenty years after the United Church of Christ published its landmark report Toxic Wastes and Race in the United States in 1987, a follow-up study led by Dr. Robert Bullard showed communities of color continued to bear the brunt of environmental pollution in the US.[1] In 2017, a joint study by the National Association for the Advancement of Colored People (NAACP), the Clean Air Task Force, and the National Medical Association showed that African Americans are exposed to 38% more polluted air than white Americans, and are 75% more likely to live in fence-line communities, i.e. communities affected by noise, odor, traffic, and chemical emissions from an adjacent company, industrial, or service facility.

There is no federal law governing environmental justice (EJ). This means that agencies, including EPA, have no authority to mandate actions or remedies addressing EJ concerns independent of their authorities under other statutes.[2] Executive Order 12898, signed by President Clinton in 1994, requires all agencies to “make achieving environmental justice part of [their] mission.” However, the order is not judicially enforceable.

EPA’s EJ efforts to-date have been insufficient to address the scale and severity of environmental injustice in the US. According to Dr. Clarice Gaylord, the first director of the Office of Environmental Justice (then the Office of Environmental Equity), this minimal progress can be attributed to the office’s lack of authority to monitor and enforce Executive Order 12898. Marianne Engelman Lado, Director of the Environmental Justice Clinic at Vermont Law School, confirms that “any meaningful effort to address race discrimination in the environmental sector” will require EPA “to spend political capital. . . or for leadership outside of the agency to assume responsibility for civil rights enforcement in the context of environmental justice.”[3]

EPA defines EJ as both “the fair treatment” and “meaningful involvement of all people regardless of race, color, national origin, or income” in the “development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA relies on various offices, committees, and interagency working groups to address EJ concerns, especially the Office of Environmental Justice (OEJ) and the Office of General Counsel’s External Civil Rights Compliance Office (ECRCO), both discussed in greater detail below.

Office of Environmental Justice (OEJ)

EPA’s Office of Environmental Justice, established in 1993, coordinates EPA’s internal implementation of Executive Order 12898, develops agency and interagency EJ plans, and administers a small grant program. However, the office has no authority to enforce its own guidance.

Under President Obama, the Office of Environmental Justice made significant progress in developing tools like EJSCREEN and technical guidance documents to help states and federal agencies assess EJ concerns in a consistent way. Much of that progress has now been undercut by the Trump Administration’s broader deregulatory agenda and disinvestment in EPA, including the Office of Environmental Justice and its grant programs.[4] The success of Obama-era programs like the EJ 2020 Action Agenda now hinge on EPA staff and continued congressional funding, often in spite of President Trump’s proposed cuts to, or even wholesale elimination of, EPA’s EJ program.

External Civil Rights Compliance Office (ECRCO)

ECRCO is responsible for ensuring that recipients of EPA funding comply with Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.[5] This mandate is crucial because of the Supreme Court’s decision in Alexander v. Sandoval, which limits private rights of action under Title VI to claims addressing intentional discrimination only.[6] The Supreme Court did not, however, impose the same restrictions on agencies implementing Title VI.[7] For example, EPA’s regulations implementing Title VI, issued in 1973 and revised in 1984, prohibit recipients of EPA financial assistance from “taking actions in their programs or activities that are intentionally discriminatory and/or have a discriminatory effect,” even if those policies are neutral on their face.[8] As a result, EJ communities are dependent on EPA enforcing its own Title VI regulations to address environmental injustice. For example, people of color disparately impacted by a state approving the siting of a polluting facility in an already overburdened neighborhood do not have the right to sue under Title VI, unless they can prove that the state intentionally discriminated. However, those same people can file a complaint with ECRCO alleging that the state, in permitting that facility, created adverse and disproportionate effects on the basis of race, color, or national origin in violation of Title VI.[9]

EPA regulations grant ECRCO the authority to conduct compliance reviews of any recipient of EPA assistance, including data requests and “on-site reviews when it has reason to believe that discrimination may be occurring.”[10] EPA may also delay or deny financial assistance to grant recipients based on a pre-award compliance review.[11] However, a 2016 report from the U.S. Commission on Civil Rights found that “EPA does not take action when faced with environmental justice concerns until forced to do so. When they do act, they make easy choices and outsource any environmental justice responsibilities onto others.” Four years later, a report from EPA’s Office of Inspector General found that ECRCO does not proactively conduct compliance reviews, but rather waits to receive a complaint before collecting program data from EPA funding recipients. This practice places the burden on EJ communities to investigate, document, and enforce EPA’s Title VI mandate.

ECRCO has been consistently criticized under both the Obama and Trump administrations for failing to enforce its Title VI mandate. Since 1996, ECRCO has investigated fewer than one quarter of the Title VI complaints it has received. To address persistent backlogs and delays, the Obama EPA released a 2015–2020 ECRCO Strategic Plan, a Title VI case resolution manual, and a Title VI compliance toolkit for federal funding recipients. Under Obama, ECRCO also made its first and only formal finding of discrimination, resolving a complaint from 1992 against the Michigan Department of Environmental Quality (MDEQ). However, EPA did not withhold funding from MDEQ after making this finding. Under President Trump, ECRCO has resolved the office’s 61-case backlog and accepted 16 of 57 submitted complaints for investigation, but made no findings of discrimination.

For a closer look at Title VI enforcement by EPA, see Marianne Engelman Lado, No More Excuses: Building a New Vision of Civil Rights Enforcement in the Context of Environmental Justice, 22 U. Pa. J. L. & Soc. Change 281 (2019).

In the timeline below, I list EJ-related efforts at EPA, focusing on the Office of Environmental Justice and ECRCO. To learn more about the history of the Environmental Justice Movement, please see suggested resources at the bottom of the page.

Timeline of Environmental Justice Efforts at EPA

June 1, 1983 The General Accounting Office (GAO) releases a study showing three out of four hazardous waste landfills in EPA’s Region IV (Southeast) are located in communities with majority Black populations, and 26% of the population in all four communities have incomes below the poverty level.

June 1987 The United Church of Christ (UCC) Commission on Racial Justice releases Toxic Wastes and Race in the United States, a first-of-its-kind report finding over 15 million African Americans, 8 million Hispanics/Latinos, and half of all Asian/Pacific Islanders and Native Americans live in communities with at least one abandoned or uncontrolled toxic waste site.

Early 1990 The Congressional Black Caucus meets with EPA officials to raise concerns that the agency’s inconsistent enforcement and inspections fail to address the enhanced environmental risk in minority and low-income communities.

July 1990 EPA creates the Environmental Equity Workgroup to assess the disproportionate environmental burdens on racial minorities and low-income communities.

May 29, 1992 The workgroup releases its report Reducing Risk For All Communities, finding health disparities “among ethnic groups” due to “different activity patterns, cultural behaviors, diets, and physiological differences,” and recommending further study. Dr. Robert Bullard, then Professor of Sociology at the University of California, Riverside, submits comments concluding EPA “has failed to grasp the interrelationship between race, class, and environmental decision making.”

1992 EPA establishes the Office of Environmental Equity, led by Dr. Clarice Gaylord, as part of the office of human resources.

Sep. 30, 1993 EPA, under Dr. Gaylord’s leadership, establishes the National Environmental Justice Advisory Council (NEJAC) to advise the EPA Administrator on integrating environmental justice into EPA programs.

Feb. 11, 1994 President Clinton signs Executive Order 12898, requiring every federal agency to “make achieving environmental justice part of its mission.” The order also establishes the Interagency Working Group (IWG) on Environmental Justice, chaired by EPA.

Dec. 2004 NEJAC submits its report Ensuring Risk Reduction in Communities with Multiple Stressors: Environmental Justice and Cumulative Risks/Impacts to EPA.

Obama Era

2009 EPA Administrator Lisa Jackson appoints Lisa Garcia as Senior Advisor to the Administrator for Environmental Justice and Patrick Sungwook Chang as Senior Counsel for External Civil Rights.

Dec. 2010 President Obama hosts the first White House Forum on Environmental Justice, including Cabinet secretaries, senior officials, and more than 100 environmental justice leaders.

Apr. 22, 2011 The Office of Civil Rights (OCR) makes a preliminary finding of a prima facie Title VI violation. The complaint, Angelita C., et al. v. California Department of Pesticide Regulations (CDPR), originally filed in 1999, alleged that that the California Department of Pesticide Regulations (CPDR) discriminated on the basis of race by permitting greater use of methyl bromide and other toxic fumigants near schools with Latino schoolchildren as compared to schools with fewer Latino schoolchildren. Environmental justice advocates criticize EPA for the 12-year delay, for failing to contact the complainants before reaching a settlement agreement with CDPR, and for reaching a settlement that failed to address other toxic fumigants affecting complainants and their communities. Garcia v. McCarthy, No. 3:13-cv-03939 (9th Cir. 2016).

Aug. 4, 2011 Seventeen cabinet members and White House offices sign a Memorandum of Understanding on Environmental Justice, establishing the IWG’s charter, expanding its membership, and recommitting agencies to Executive Order 12898.

Sep. 2011 EPA releases its roadmap for environmental justice programming, called Plan EJ 2014, to provide guidance on integrating environmental justice into all EPA programs, including rulemaking, permitting and enforcement.

2013 EPA issues Order 4700, designating deputy civil rights officials (DCROs) in all its program and regional offices.

2015 EPA releases its Environmental Justice Mapping and Screening Tool (EJSCREEN), a public online mapping tool to identify communities that bear a disproportionate pollution burden.

May 2015 EPA issues its final Guidance on Considering Environmental Justice During the Development of Regulatory Actions.

July 15, 2015 Community organizations sue EPA for unreasonably delaying and unlawfully withholding agency action on five Title VI complaints for more than a decade. The Title VI complaints alleged that states receiving EPA funding discriminated against low-income communities of color already impacted by pollution by granting additional permits to polluting facilities. Californians for Renewable Energy et al v. EPA, No. 4:15-cv-03292 (N.D. Cal.).

June 2016 EPA releases its EJ 2020 Action Agenda for advancing environmental justice for 2016–2020.

June 2016 EPA releases its Technical Guidance for Assessing Environmental Justice in Regulatory Analysis, outlining procedures for assessing environmental justice concerns associated with various agency actions.

Sep. 30, 2016 The U.S. Commission on Civil Rights finds “EPA continues to struggle to provide procedural and substantive relief to communities of color impacted by pollution.” Furthermore, “EPA does not take action when faced with environmental justice concerns until forced to do so. When they do act, they make easy choices and outsource any environmental justice responsibilities onto others.”

Dec. 2016 EPA’s External Civil Rights Compliance Office (ECRCO), in the Office of General Counsel (OGC), assumes management of the agency’s Title VI program from the Office of the Administrator, with 61 backlogged cases.

Jan. 2017 ECRCO releases its 2015–2020 Strategic Plan to improve case management and the effective processing of Title VI complaints.

Jan. 2017 EPA releases its Case Resolution Manual (CRM) to facilitate the uniform investigation and resolution of Title VI complaints.

Jan. 12, 2017 ECRCO sends a letter to the North Carolina Department of Environmental Quality (NC DEQ) expressing “deep concern” that the state’s regulation of large-scale hog farms discriminates against African Americans, Latinos, and Native Americans in neighboring communities. The letter responds in part to Earthjustice’s Title VI complaint filed on behalf of community groups on Sep. 3, 2014 alleging NC DEQ discriminated on the basis of race and national origin.

Jan. 18, 2017 ECRCO issues Chapter 1 of its “Compliance Toolkit” reviewing the legal standards relevant to claims of adverse disparate impact.

Jan. 19, 2017 On the last full day of the Obama Administration, EPA issues its first and only formal finding of discrimination, finding that the Michigan Department of Environmental Quality (MDEQ) engaged in “discriminatory treatment of African Americans . . . in the public participation process” related to the permitting of the Genesee Power Station in a primarily low-income, African American neighborhood. EPA does not, however, initiate a process to withhold federal funds from MDEQ. The St. Francis Prayer Center of Flint submitted their original complaint in 1992.

Trump Era

March 8, 2017 Mustafa Santiago Ali, Assistant Associate Administrator for Environmental Justice, resigns after 24 years at EPA.

May 23, 2017 Trump proposes eliminating the Environmental Justice Office’s $6.7 million annual budget for FY 2018. This proposal reverses President Obama’s proposed increase to $15.3 million for FY 2017.

Sep. 7, 2017 Trump officials move the Environmental Justice Office out of the Office of Enforcement and Compliance Assurance to the Office of Policy. Administration officials say the move will “improve efficiency.” Critics fear the move will politicize the office. EPA also changes the name of the Office of Sustainable Communities to the Office of Community Revitalization.

March 30, 2018 The District Court for the Northern District of California holds in Californians for Renewable Energy v. EPA that EPA failed to comply with its mandatory duty to issue preliminary findings within 180 days on each of the five Title VI complaints. The court adds “EPA often takes years to act on a [Title VI] complaint – and even then, acts only after a lawsuit has been filed.” 4:15-cv-03292 (N.D. Cal.).

Sep. 4, 2020 President Trump orders agency heads to cease trainings on diversity and inclusion in a memo from the Office of Management and Budget, calling them “divisive, un-American propaganda.” EPA postpones a training series on race and diversity the following week.

Sep. 28, 2020 EPA’s Office of Inspector General releases a report finding ECRCO must conduct “more robust, systemic oversight” to ensure funding recipients are in compliance with Title VI. The IG finds ECRCO does not “proactively” conduct compliance reviews or collect information from recipients to identify noncompliant programs.

Suggested resources on the history of the Environmental Justice Movement:

  • Robert D. Bullard, Confronting Environmental Racism: Voices from the Grassroots (1993).
  • Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (2001).
  • Dorceta Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility (2014).
  • Dina Gilio-Whitaker, As Long as Grass Grows: The Indigenous Fight for Environmental Justice, from Colonization to Standing Rock (2020).
  • Environmental Justice Timeline from EPA.

Sources

[1] The study found that in neighborhoods hosting a commercial hazardous waste facility, 56% of the population are people of color. By comparison, in neighborhoods without hazardous waste facilities, 30% of the population are people of color.

[2] There are multiple proposals for a federal environmental justice statute, including the EJ for All Act (S.4401; H.R.5986); the Climate Equity Act (S.4513; H.R.8019); the Public Health Air Quality Act of 2020 (S.4369; H.R.7822) expanding fenceline and ambient air monitoring; and the Environmental Justice Legacy Pollution Cleanup Act (S.4617; H.R.8271). In September 2020, the House passed the Clean Economy Jobs and Innovation Act (H.R.4447), incorporating provisions from the EJ for All Act and the Public Health Air Quality Act of 2020.

[3] Marianne Engelman Lado, No More Excuses: Building a New Vision of Civil Rights Enforcement in the Context of Environmental Justice, 22 U. Pa. J. L. & Soc. Change 281, 307 (2019).

[4] A 2019 report by the Union of Concerned Scientists found that the number of small grants awarded by the Office of Environmental Justice fell by 70% compared to the first two years of the Obama administration, and by 79% compared to the first two years of the Bush administration. Ctr. for Sci. & Democracy, Abandoned Science, Broken Promises: How the Trump Administration’s Neglect of Science is Leaving Marginalized Communities Further Behind (Oct. 2019).

[5] 42 U.S.C. § 2000(d) (2018). The Supreme Court has expanded Title VI to also require recipients of federal funding to “take affirmative steps” to provide people with limited English proficiency (LEP) access to federally funded programs and activities. See Lau v. Nichols, 414 U.S. 563, 568 (1974).

[6] See Alexander v. Sandoval, 532 U.S. 275, 280 (2001).

[7] See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 592–93 (1983); Alexander v. Sandoval, 469 U.S. at 292–94.

[8] According to the ECRCO Toolkit, released in Jan. 2017, to establish a prima facie case of adverse disparate impact, EPA must (1) identify the specific policy or practice at issue, (2) establish adversity/harm, (3) establish disparity, and (4) establish causation. The agency’s analysis focuses on “the consequences of the [funding] recipient’s policies or decisions, rather than the recipient’s intent.” EPA, U.S. EPA’s External Civil Rights Compliance Office Compliance Toolkit 8–9 (Jan. 18, 2017).

[9] For example, EPA regulations prohibit recipients of federal funding from using “criteria or methods” that have the “effect of subjecting individuals to discrimination,” 40 C.F.R. § 7.35(b), or choosing a “site or location of a facility that has the purpose or effect of excluding individuals from, denying them benefits of, or subjecting them to discrimination on the grounds of race, color, or national origin.” Id. at 7.35(c).

[10] 40 C.F.R. § 7.115(a).

[11] 40 C.F.R. § 7.130(b).