One year after a newly inaugurated President Biden committed to activating every bough of the government to address the climate crisis and a legacy of racial and environmental injustice — in Executive Order 14008 — elements of that elegant orderThey are becoming real.
Where there wasn’t one before, a brand new White House Environmental Justice Advisory Council26 members are now online and the site is fully functional advising the administrationIt focuses on equity and how it addresses disaster response, climate changes, and the energy transition. A few of these are federal programs are at work channeling 40 percent of the benefits of federal investments to “disadvantaged communities,” though officials have yet to define just what that means. Environmental justice groups are demandingThere is still more to be done, such as rapid improvements on the now-overdueRedesign of a climate and environment justice mapping app, which will help ensure equity and social progress by identifying frontline or fenceline communities that have been most affected by climate change and pollution.
However, there is an existing tool that can bring justice to communities who have been victims of environmental racism for generations, but officials have left it largely unexploited across administrations.
Title VI of the Civil Rights Act of 1964 prevents any program that receives federal funding from discriminating on the basis of “race, color or national origin,” whether by denying benefits to or excluding certain groups from participation in public process. As the Department of Justice stated, emblazoned on its website, ahead of the passage of the landmark statute, President John F. Kennedy noted: “Simple justice requires that public funds, to which all taxpayers of all races … contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial … discrimination.”
The law empowers communities alleging they’ve been discriminated against by a group receiving federal funding — with environmental cases, typically state or local regulators that issue permits to industrial developers — to file complaints with whichever agency has provided the funds, or to bring a lawsuit in federal court against that entity. It also instructs federal agencies delivering money, such as the Environmental Protection Agency, to stop funding programs that have been discriminatory or to refer the matter the Department of Justice.
Nearly six decades later, whole bodies of research reveal that government agencies, often through inaction, have contributed to the formation of “sacrifice zones” — communities where residents die of illnesses more often and earlier than others due to the superfluous siting of polluting operations nearby. For instance, 2021 will be the year of the “sacrifice zone”. ProPublica publishedThe most detailed map yet shows that census tracts with a majority of residents being people of color are exposed 40 percent more to cancer-causing air pollutants than census tracts that are predominantly white.
“Industries rely on having these sinks — these sacrifice zones — for polluting. That political calculus has kept in place a regulatory system that allows for the continued concentration of industry,” Ana Baptista, an environmental policy professor at The New School, told ProPublica, in reference to the organization’s investigation. “We sacrifice these low-income, African American, Indigenous communities for the economic benefit of the region or state or country.”
Many legal scholars have said it. Truthout, Title VI provides remedy that could begin to address this flagrant legacy by steering agencies toward serving the communities they’re charged with protecting with equal rigor.
“It’s a very powerful tool — at least on paper — for addressing environmental justice issues,” Oren Sellstrom, the litigation director for Lawyers for Civil Rights told Truthout.
It’s also a tool that’s profoundly needed, but has yet to be fully embraced, advocates say. In addition to data made available by scholarly and journalistic efforts, the federal government’s own mapsThese disparities can have a huge impact on health and pollution. But in spite of this documentation, and having received hundreds of complaints alleging discrimination, the EPA’s External Civil Rights Compliance Office (ECRCO) has only four times ever in its history issued a formal finding of discrimination.
The first case sat almost 25 years before it was finally removed in 2017. ECRCO determined a “finding of discriminatory treatment of African Americans” by Michigan’s leading environmental agency in considering and approving a 1994 permit for a wood-burning incinerator and power plant located in Flint, known as the Genesee Power Station. The findings included that the agency gave special accommodations to a white doctor wanting to testify early, but denied accommodations to two Black residents seeking the same option; and that the agency used armed guards — which it hadn’t done at hearings held further away in predominantly white areas — to intimidate Black residents. It was also noted that the facility was located.
“This area is predominantly black, low-income, with a disproportionate number of female-headed households,” C.S. Mott Community College professor Janice O’Neal said in 1995, according to reporting by the Detroit Free Press. “These people are at greater risk for all kinds of environmental exposures already. This should be considered in the siting process. If it’s not, the process is racist.”
As the complaint — originally filed in 1992 — collected dust, babies grew into adults and had their own children, all while the incinerator was allowed to pump pollutants like lead into the atmosphere and the lungs of its primarily Black neighbors. The Flint water crisis was allowed. In 2015, an official from the same Michigan agency later found to have violated the Civil Rights Act said that anyone worried about Flint’s drinking water should “relax.”
Although it did find noncompliance with Title VI in 2017, EPA officials did not call on what Sellstrom refers to as its “ultimate lever”: the authority to pull funding from a group found to be discriminating. They have never done so.
One obstacle is the U.S. Supreme Court decisions have found that Title VI requires evidence of “intentional discrimination,” which is logistically difficult, according toAlbert Huang, American Bar Association
The more troubling truth is that officials have chosen Title VI over certain laws, such the Endangered Species Act. “The [EPA] has over decades internalized the idea that the Civil Rights Act is not worth enforcing,” Patrice Simms, vice president of litigation for healthy communities with Earthjustice and visiting professor of law at Harvard University, told Truthout. Simms points out that if other agencies were found not to be enforcing the laws they are specifically charged with overseeing, “it would be absolutely unacceptable.” Simms has himself worked for the EPA and the Department of Justice in a variety of posts.
Of 209 complaints133 complaints alleging discrimination were filed since 2014. There were dozens of other complaints. backlog for yearsAccording to a September 2020 report reportBy the Office of the Inspection General
ECRCO’s ability to do its job is severely limited by a lack of resources, says Andrew Bashi, an attorney with the Great Lakes Environmental Law Center. ECRCO only has a modest budget. 12 staff membersComplaints are addressed. The Department of Education has 500 people who are dedicated to the enforcement of the Civil Rights Act.
“The simultaneous unwillingness to fund the efforts of an office like ECRCO, work that could be so central to addressing some of the structural inequities impacting the very communities our system continues to imprison disproportionately, exposes the great paradox of America’s racial progress,” Bashi said.
The Title VI complaints alleging discrimination — 90 percent of which, up until 2013, were rejected or dismissed — are expansive: predominantly Latinx residents who say the state failed to protect their groundwater source when issuing a discharge permit to a facility in Eunice, New Mexico; a Black neighborhood in Beaumont, Texas, that was exposed to chemicals spewing from an ExxonMobil “sour crude” refinery for 17 years until the EPA settledIts Title VI complaint was filed, and the company was forced to dump. over 400 million poundsPollution in the air; rural communityOrange County, North Carolina, waited more than a decade to file a Title VI complaint for the county’s extension of sewer and water services.
“I don’t feel anybody should fight as long as we’ve been fighting to get something that’s God-given,” Orange County resident David Caldwell Jr. told The New Yorker of his neighborhood’s sustained effort to get water and sewer services akin to others in the county.
Taylor Gillespie, strategic communications coordinator for the EPA, said over email that ECRCO’s consistent underfunding has limited the office to operating on a reactive rather than a proactive basis in response to allegations of discrimination. But the tides are turning within the agency, she noted, describing EPA Administrator Michael Regan as “committed to using EPA’s full authority under the federal civil rights laws.” In January, the EPA introducedAn annual compliance review to ensure that recipients of funding are in compliance with the Civil Rights Act. The administration has also outlined its commitment to strengthening civil rights enforcement as part of the EPA’s strategic plan for 2022-2026, which will be completed later in the month.
Simms and Bashi are optimistic, as well as Simms. In the first three months of fiscal year 2022, nearly as many Title VI complaints were filed in the United States than in 2020. Bashi says that the increase in complaints is actually a good thing. “For the first time in a while, communities are optimistic that the environmental injustices facing them might be honestly examined and lead to the substantive changes they have been denied for generations,” he said. According to Gillespie ECRCO had surpassed its backlog of complaint as of the writing of this article. Two of the four total Title VI violations have been issued by the Biden administration’s EPA.
Advocates claim that this number is still very small and insulting. For communities in which the EPA’s historically weak approach to enforcing civil rights law has meant ongoing exposure to pollution while they wait for answers — and losing loved ones along the way — immediate action is the only adequate intervention, according to Tamara Toles O’Laughlin, a longtime climate strategist, and CEO and president of the Environmental Grantmakers Association.
“This would look like speedy settlements and reparations for failure to respond previously; fines, sanctions and an aggressive clawing back [of]Funds from predatory polluters, who have built their entire businesses targeting Black, Indigenous, and [other] people of color,” O’Laughlin said.
Sellstrom, of Lawyers for Civil Rights, said the withholding of financial assistance from groups found to have violated Title VI — which would be a first if and when it occurs — would also send a strong message that a culture shift is afoot within the EPA, and that addressing systemic racism in the agency may be, at long last, a serious priority. “That would change the mindset and the way people act across the board,” Sellstrom said.