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 order are materializing.
Where there wasn’t one before, a brand new White House Environmental Justice Advisory Council is up and running, with 26 members advising the administration on centering equity as it tackles disaster response, climate change and the energy transition. A handful of 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 demanding more action still, such as rapid progress on the now-overdue revamp of a climate and environmental justice mapping application, which will help ensure that this investment maximizes equity and social progress by identifying frontline and fenceline communities that have borne the brunt of pollution and climate risks.
But one existing environmental justice tool, which officials have let lie largely dormant across administrations, has particular potential to bring some form of justice to communities that have experienced environmental racism for generations.
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 has 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 funds, such as the Environmental Protection Agency (EPA), to stop funding programs found to have acted discriminatorily, or to refer the matter to 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. In 2021, for instance, ProPublica published the most detailed map to date revealing that census tracts where the majority of residents are people of color are exposed to 40 percent more cancer-causing air pollutants when compared with census tracts that are mostly 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.”
As numerous legal scholars told 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 maps reveal enormous health and pollution disparities. 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 for nearly 25 years until 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. The siting of the facility was also noted.
“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 ought to be taken into consideration 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 to occur. 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. Nor have they ever.
One barrier is that U.S. Supreme Court decisions have found that Title VI requires evidence of “intentional discrimination,” which is logistically difficult, according to Albert Huang of the American Bar Association.
Yet the more troubling truth is that officials have chosen to prioritize certain laws, such as the Endangered Species Act, over Title VI. “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 complaints alleging discrimination filed since 2014, 133 were rejected. Dozens of other complaints remained on a backlog for years, according to a September 2020 report by the Office of the Inspector 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 has a mere 12 staff members tackling complaints. By comparison, the equivalent office at the Department of Education has 500 people dedicated to enforcing 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 settled its Title VI complaint, during which time the company dumped over 400 million pounds of pollution into the air; a rural community in Orange County, North Carolina, that waited over a decade after filing a Title VI complaint for the county to extend 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 introduced an annual compliance review process to ensure recipients of its funding are not in violation of 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 is set to be finalized later this month.
Advocates including Bashi and Simms remain hopeful. In the first few months of fiscal year 2022, U.S. residents filed nearly as many Title VI complaints as in all of 2020. The rise in volume of complaints is actually good news, says Bashi. “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. As of this writing, ECRCO has caught up with its backlog of complaints, according to Gillespie. Two of the four total Title VI violations have been issued by the Biden administration’s EPA.
But that number is still miniscule and an insult, advocates say. 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 whole 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.