February 12, 2016

Private: The EPA Fails to Address Environmental Racism

J. Mijin Cha

by J. Mijin Cha, independent policy researcher and analyst; fellow, Cornell University Worker Institute; adjunct professor, Fordham University School of Law

As the crisis in Flint, Mich., further unfolds, the depths to which officials ignored warning signs and allowed the city’s residents to drink poisoned water are astonishing. Recently released emails show local and state officials knew what was happening much sooner than they let on and were more concerned with shifting blame than fixing the problem. As a result, months went by without residents knowing they were exposed to lead, a toxin that has no safe level of exposure and causes severe developmental and physical disabilities.

The majority of Flint residents are African American, and nearly 42 percent live in poverty. In contrast, just 14 percent of all residents in Michigan are African American, and the state’s poverty rate is less than half that of Flint. For decades, Flint residents have been exposed to a disproportionate amount of environmental pollution, so much so that residents have filed complaints with the Environmental Protection Agency (EPA) that the amount of pollution they are forced to bear violates their civil rights. The demographics of Flint combined with the city’s disproportionate environmental burden make it a classic case of environmental racism.

Environmental racism is the disproportionate placing of hazardous waste and polluting industries near communities of color. In addition to several previous studies that found race was the number one factor in the siting of commercial hazardous waste facilities, new research found that communities of color and low-income communities are deliberately targeted for hazardous waste siting. Led by researchers from the University of Michigan and the University of Montana, this study is the first national-level environmental justice study to conduct longitudinal analyses using distance-based methods. The results of the study confirm that race and class determine the siting of hazardous waste sites.

The residents of Flint are all too familiar with the role that race and class play in locating polluting industries. There are at least 227 environmentally noxious facilities throughout the community. Residents have been fighting against these facilities with little success for decades. In 1994, advocates in Flint filed a Title VI administrative complaint with the EPA against a nearby power plant in Genesee. The EPA, like every federal agency, must abide by Title VI of the 1964 Civil Rights Act and ensure that recipients of federal aid do not discriminate on the basis of race, color or national origin.

Title VI violations can occur if state environmental agencies, who receive money from the federal EPA, permit hazardous and/or polluting industries disproportionately in communities of color. The discrimination occurs if these facilities are permitted or sited based on race, ethnicity or another protected class. If a community feels Title VI has been violated, they can file an administrative complaint with the EPA's Office of Civil Rights.

The EPA never responded to the Flint residents’ Title VI claim, and the power station started operating in 1995. A few years later, in 1997, the Michigan Department of Environmental Quality granted an air permit to a Select Steel "mini-mill" to operate in Flint, even though the mill would send up to 100 tons of lead and other hazardous pollutants into the city's air every year. The mini-mill would be located just two miles from the Genesee power plant. Flint residents filed another Title VI claim with the EPA against the Select Steel permit.

This time, the EPA responded promptly and dismissed the complaint 74 days after it was filed. EPA dismissed the complaint because it claimed the air quality protection and public participation were adequate. The ruling contradicted the Department of Justice's interpretation that civil rights laws are independent and compliance should be evaluated with anti-discrimination requirements, rather than looking only at environmental regulations. In the end, the mini-mill was never built, but the EPA's ruling created a precedent of environmental regulations trumping civil rights protections that still stands. The 1994 complaint against the Genesee power plant, by the way, was still pending at the time of the Select Steel ruling.

The Select Steel case is one of the rare Title VI complaints decided by the EPA. Over 95 percent of administrative complaints received by the EPA are either rejected or dismissed. Last year, the Center for Public Integrity did an in-depth investigation into the EPA’s Title VI record and found that in nearly 300 complaints filed by communities of color, the EPA has never once made a formal finding of a civil rights violation. On average, it takes the EPA's Office of Civil Rights 350 days to decide just on whether to investigate a case — so long that investigators dismissed nine cases as moot. In 2011, the EPA commissioned Deloitte Consulting to conduct its own review of the performance of the Office of Civil Rights, and the results were dismal. Among the findings, only six percent of Title VI claims were accepted or dismissed within the agency’s 20-day time limit, and the backlog of cases went back nearly a decade.

In response to Deloitte’s findings, the EPA released draft Recommendations for Developing a Model Civil Rights Program at the EPA at the start of 2012. Among the recommendations were direct investment of senior leadership in the success of the program, including Title VI in strategic plans and performance objectives of offices and regions, adequate funding and resources, and direct reporting to the Administrator by the senior civil rights director.

An analysis of the Title VI claims filed since the draft recommendations were released shows that of the 35 claims that were filed, 25 were rejected. Some of the claims that were rejected were referred to other agencies and several are still under jurisdictional review, including claims originally filed back in 2013 and 2014. Of the 35 claims, only two have been accepted for investigation. In response to the Center for Public Integrity’s reporting, the EPA put forth more improvements at the Office of Civil Rights, including increased staffing and issuing a civil rights toolkit to help educate states, recipients of EPA funding, and communities on their rights and obligations under Title VI.

However, EPA’s attempts at reforming the Office of Civil Rights are too little, too late. The proposed changes seem to be cosmetic, at best, and will provide little relief to communities like Flint. We need a fundamental overhaul of the Title VI process and a recommitment to protecting the civil rights of communities of color. Until then, we can expect Title VI claims to continue to be largely ignored, and communities of color around the country will continue to bear the environmental cost of this broken system.

Environmental Protection, Racial Equality