Like most government agencies that receive federal funds, the U.S. Environmental Protection Agency is bound by federal law to ensure there is no illegal discrimination in the way those funds are used.
It even has a special section to deal with “environmental justice” complaints, which would better be labeled “environmental injustice” — they allege illegal imbalance in the way its rulemaking, grantmaking and enforcement actions so often deliver better outcomes for white, affluent communities than poor communities of color.
Many of these are known as Title VI complaints, because they are brought under that section of the Civil Rights Act of 1964. And since the first one was filed in 1993, it has received about 300 of them, which works out to a little better than one per month. To handle the flow, it created its Office of Civil Rights in 1994.
Yet not one has resulted in a formal finding of discrimination by EPA, according to a new analysis by the U.S. Commission on Civil Rights [PDF], let alone a decision to deny or take back federal dough.
Nine out of 10 complaints have been dismissed outright — but not, by any means, in haste. Although the agency is required by law to decide within 20 days whether to accept a complaint for investigation, the commission found that the average wait from filing to this initial determination is about a year.
If a complaint is accepted, the inquiry is supposed to be completed within six months. But the 30-some complaints still pending out of the 300 filed with EPA constitute a backlog that goes back, in some cases, to 2013.
In the single instance where EPA has approached a finding of “disparate impact” that would violate Title VI, it concluded in 2011 that California pesticide regulators were permitting use of toxic fumigants too close to public schools, especially schools whose enrollment was heavily Latino. However, EPA notified neither the complaining parents nor their lawyers of the tentative findings on the complaint, which had been filed a dozen years earlier (and became moderately famous as the Angelita C. case).
Instead, it reached a settlement that carried no finding of fault by the California Department of Pesticide Regulations, and simply required it to do more monitoring on the fumigants at issue — methyl bromide products, which were already being phased out.
In other words, the commission found, “the specific relief the claimants were seeking had already been addressed,” and EPA knew this as it negotiated the settlement, placing on the Californians a compliance burden that had begun to dissolve on its own.
Inaction leads to litigation
Inaction by EPA frequently triggers litigation by aggrieved parties, the commission found.
EPA has been sued multiple times (sometimes in the context of processing the same Title VI complaint) for failing to meet its regulatory time frames. Once sued, EPA takes the minimal amount of action to moot the lawsuit, yet never seems to reach any substantive decisions on whether a federal recipient has violated Title VI.
The commission’s analysis focuses heavily on the newer issue of coal ash and EPA’s 2014 rulemaking that set national standards for disposal of the material, which accumulates at coal-fired power plants and contains significant amounts of mercury, heavy metals and other toxins.
That rulemaking was subject to a 20-year-old executive order by President Bill Clinton requiring federal agencies to take matters of environmental justice into account in setting policy and applying rules.
However, the commission found that EPA ducked its responsibility on coal ash until — you guessed it — “forced to do so as part of settling a lawsuit,” then categorized it as a material scarcely more troublesome than household trash.
When EPA did issue a final rule, it classified coal ash as a solid waste (as opposed to a hazardous substance) under the Solid Waste Disposal Act. Because of the enforcement mechanisms provided in that Act, this means that 1) states can voluntarily adopt the measures but do not have to, and 2) EPA cannot enforce the regulation and affected communities are responsible for bringing citizen suit actions. This means that the affected communities have to collect technical evidence and finance expensive litigation.
Additionally, coal ash is found throughout the United States in 47 states [mostly in the eatern third of the country, according to an Earthjustice map in the commission’s report, although it is present at three places in Minnesota: Becker, Cohasset and Aurora]. At the time of enactment of the regulation, 17 of those states were anticipated to implement standards as strict (or stricter) than the federal regulation, and 30 states were anticipated to not adopt the federal regulatory standards.
In looking at the 30 states not anticipated to adopt the federal standards, the communities in which coal ash is disposed are more likely to be communities of color. EPA did not analyze the substantive result of its Final Rule in this manner despite receiving public comments making this point.
Where the ash waits
Coal ash can be used in making concrete and other products, and something less than half of the waste is put to use this way. The rest, in general, has been “stored” in ditches, pits, piles and even dams — which occasionally wash away with disastrous consequences downstream.
The new rule requires that new ash pits have liners and other features intended to prevent groundwater contamination, but little is required of most existing disposal sites until a serious impact to groundwater has been shown, or unless the site is part of a currently operating coal plant.
As an example of EPA’s failure to apply what many might consider the fundamental principles of environmental justice, the commission deals at length with the Title VI complaint from an Alabama town of about 1,600 people, where the median household income is a bit over $12,000 per year. Rather than quote the report’s dry language at length, I offer this terse and actually fair-minded summary from Mother Jones:
In 2009, trains arrived in Uniontown, Alabama, carrying 4 million tons of coal ash, the toxic residue from burning coal. The ash was recovered from a spill in Kingston, Tennessee — a town that is more than 90 percent white — and brought to a new landfill less than a mile from the residential part of Uniontown, which is 90 percent black. Soon, Uniontown residents began reporting breathing problems, rashes, nausea, nosebleeds, and more.
“The smell, the pollution, and the fear affect all aspects of life — whether we can eat from our gardens, hang our clothes, or spend time outside,” resident Esther Calhoun later said.
Uniontown residents filed a complaint to the Environmental Protection Agency’s Office of Civil Rights in 2013, alleging that the waste was disproportionately affecting black property owners. By allowing the landfill to exist, they said, Alabama was violating Title VI of the 1964 Civil Rights Act, which mandates that federal funds not be used in a discriminatory purpose. The EPA is supposed to respond to such complaints within six months.
Three years after filing the complaint, Uniontown residents are still waiting for an answer.
* * *
Oh. I should point out that EPA Administrator Gina McCarthy’s environmental justice adviser told MoJo that the commission’s report has “serious and pervasive flaws,” and that “EPA has a robust and successful national program to protect minority and low-income communities from pollution.”
I will be interested to see how EPA, in the months ahead, handles the fallout from an analysis that this sometimes jaded observer finds really quite withering. But I’ll be frankly astonished if EPA can show that the commission has any apologizing to do.