"Title VI of the Civil Rights Act at 50: An Unfulfilled Promise at EPA,"by Marianne Engelman Lado July/August 2014 issue of Poverty & Race
In 1987, Toxic Waste and Race in the United States, a report of the United Church of Christ’s Commission for Racial Justice, served as a wake-up call about the unequal distribution of health hazards in the United States. Researchers analyzed demographic factors and found that the race of the nearby population was the single most significant explanatory factor associated with the location of commercial hazardous waste facilities and uncontrolled toxics waste sites. Commission for Racial Justice, United Church of Christ, Toxic wastes and Race in the United States: A National Report on Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites (1987). This finding has been replicated and further substantiated over time. See Luke W. Cole & Sheila R. Foster, “An Annotated Bibliography of Studies and Articles That Document and Describe the Disproportionate Impact of Environmental Hazards by Race and Income,” in From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (2001), 167-183; see also U.S. Commission on Civil Rights, Not in My Backyard: Executive Order 12898 and Title VI as Tools for Achieving Environmental Justice (2003), pp. 17-20; see also Manuel Pastor, Jr., Rachel Morello-Frosch & James Sadd, The Center for Justice, Tolerance & Community, Univ. of Cal. Santa Cruz, Still Toxic After All These Years…Air Quality and Environmental Justice in The Bay Area (2007); Joint Center For Political and Economic Studies, Breathing Easier: Community-Based Strategies To Prevent Asthma 2 (2004); Robert D. Bullard & Glenn S. Johnson, “Just Transportation,” in Just Transportation at 10 (Robert D. Bullard & Glenn S. Johnson eds., 1997). Most recently, a study published by the Environmental Justice and Health Alliance for Chemical Policy Reform found that residents living in proximity to facilities that store or use highly hazardous chemicals are disproportionately African-American or Latino. “Who’s In Danger? Race, Poverty and Chemical Disasters” (2014), at 2. Researchers and residents have analyzed the reasons for the fundamental inequality in exposure to toxic contaminants, which in turn leads to disparities in health, property value and basic quality of life. Urban affairs professor Myron Orfield wrote, for example: “The existence of racially segregated and high poverty neighborhoods, along with political powerlessness, contributes to serious environmental risks for communities of color.” Orfield, “Segregation and Environmental Justice,” 7 Minn. J.L. Sci. & Tech.147, 153 (2006). Mary Lou Mares, a California activist who fought a toxic dump near her Latino neighborhood, commented: “I thought it was just us until I began to hear about the Untied Church of Christ study and other studies…. Then I realized we were part of a national pattern.” Cole & Foster, at 25.
Reflecting on the sweeping promise of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color and national origin by recipients of federal funds, it is impossible to ignore continuing and extreme inequality in exposure to health hazards. Every day, across the country, states and localities approve permits for the operation of toxic facilities, and private actors—owners and operators of incinerators, refineries, scrap metal recycling sites, landfills —make decisions about where to site such facilities and also what safety precautions they are willing to take. Every day, school districts decide whether to locate a new school on a contaminated site and, if so, how far they’ll go to clean up the grounds, and municipalities are reopening brownfields for development. Yet even today, rarely do they analyze the potential risks and impacts on nearby communities and whether this permit, this facility, this decision exacerbates long-standing inequalities—for example, whether the facility will contribute additional risks to a population that is already exposed to multiple health hazards and suffering from poor health.
Title VI of the Civil Rights Act of 1964 prohibits discrimination by all persons—including public and private actors, with bold language: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Title VI can be seen as a vehicle for accountability: If a state, locality or private actor takes federal money, it cannot engage in exclusionary or discriminatory activities on the basis of race, color or national origin. The legislation also empowers each federal agency that disburses federal funds to issue rules and regulations to achieve the objectives of the statute. With so much federal money from the Environmental Protection Agency (EPA), the Department of Energy, the Department of Agriculture and other federal agencies flowing to state and local agencies, as well as facilities that have environmental impacts, Title VI is a powerful tool for fighting discrimination based on race and ethnicity. As now Secretary of Labor Tom Perez wrote: “Title VI has been called the ‘sleeping giant’ of civil rights law. Title VI’s breadth of coverage is extensive and it can address a huge array of injustices….” Thomas Perez, Memorandum to Federal Funding Agency Civil Rights Directors (August 19, 2010), at 4. Yet, as Mr. Perez went on to say, “[A]ll too frequently this authority is underutilized.”
Historically, agencies were charged with implementing Title VI and ensuring that recipients of their funding complied with the law, and private parties could also go to court and challenge discriminatory practices. In 2001, the Supreme Court sharply curtailed the ability of victims of discrimination to enforce the law. In Alexander v. Sandoval, the Supreme Court ruled that victims of discrimination could only go to court if they could demonstrate that the discrimination was intentional, see Alexander v. Sandoval, 532 U.S. 275 (2001), despite the broad language of the statute and the fact that federal agencies such as EPA had interpreted Title VI to prohibit actions that have an unjustified disproportionate impact on the basis of race and ethnicity. As a result of the ruling, the public must rely on miniscule offices of civil rights (OCRs) at each federal agency for enforcement. According to a government website, EPA, for example, disburses more than $1.9 billion in federal money to more than 15,500 individual transactions, and yet Title VI compliance at EPA is theoretically policed by approximately seven or eight staff, who are also charged with responsibility for the agency’s equal opportunity in employment program. If the country were serious about addressing discrimination by recipients of federal funds, oversight of these federal dollars wouldn’t depend exclusively on such an anemic effort. The level of funding and staffing at EPA’s OCR is grossly inadequate.
Indeed, perhaps no agency has as infamous a record on civil rights enforcement as the EPA. As with other federal agencies, EPA is both responsible for enforcing Title VI and is also governed by Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 Fed. Reg. 7629, Feb. 16, 1994), requiring that each agency “shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on low-income and minority populations” and must develop an “agency-wide strategy” to effect this.
Despite clear legal mandates, however, EPA has not yet made civil rights enforcement a priority. One explanation for this failure may be that EPA was established in 1970, at the tail end of the civil rights revolution. Unlike the Department of Education and the Department of Health and Human Services, each of which have their roots in what was formerly known as the Department of Health, Education and Welfare, which brought enforcement actions under Title VI to desegregate hospitals receiving federal funds as well as schools, see David Barton Smith, Health Care Divided: Race and Healing a Nation (1999), EPA came of age during the backlash to the Civil Rights Movement and ultimately found itself on the defensive as it attempted to implement environmental laws. Civil rights complaints filed with EPA have simply languished. In Rosemere Neighborhood Association v. EPA (9th Cir. 2009), a federal appellate court observed that the “EPA failed to process a single complaint from 2006 or 2007 in accordance with its regulatory deadlines,” and showed a “pattern of delay.” In fact, EPA still has not completed investigations of at least four cases filed in the 1990’s. See “Complaints Filed with EPA Under Title VI of the Civil Rights Act of 1964,” available at http://www2.epa.gov/ocr/complaints-filed-epa-under-title-vi-civil-rights-act-1964. In 2012, an audit by Deloitte Consulting, LLP, which was requested by Administrator Lisa Jackson, reported that just keeping cases on track is a challenge for the agency. Deloitte characterized EPA’s OCR as “inadequate” and found that EPA lacked the skills and expertise necessary to accomplish its civil rights work. Deloitte, “Developing a Model Civil Rights Program for the Environmental Protection Agency,” at 8, 12.
To develop a meaningful civil rights enforcement program, EPA has work to do. The agency will need to develop and train skilled staff, clarify the applicable legal standards, work with recipients of federal funds to ensure compliance at the front end, when funds are disbursed, and engage stakeholders in a manner consistent with principles of environmental justice. Most of all, EPA needs to develop the political will to establish zero tolerance for discrimination and to impose meaningful remedies.
Meanwhile, communities of color across the country are bearing the burden of air pollution, water contamination and exposure to toxic sources. Whether or not lawyers can prove that governmental and private decisions affecting their lives are intentionally discriminatory, no community should be the dumping ground for hazardous waste, landfills and polluting industries.
In the words of Dr. Robert Bullard, often called the father of the environmental justice movement: “All Americans, white or black, rich or poor, are entitled to equal protection under the law. Just as this is true for such areas as education, employment and housing, it also applies to one’s physical environment.” Bullard, “Dumping in Dixie,” (1990), at 7. After 50 years, it is now time to fulfill the promise of Title VI.
As we look ahead to the future of civil rights in this country, there are signs of change, but the need to enforce the Civil Rights Act cries for action. The Environmental Justice Movement itself is reason for hope. Since the 1980s, when members of Warren County Citizens Concerned About PCBs protested against the construction of a PCB landfill in their neighborhood, people in overburdened urban and rural areas all across the country have been a force for change at the local, state and national levels. They have protested, testified, gathered evidence, educated the public, mobilized and even gone to court. Moreover, there are some signs of change at EPA, and advocates are hopeful that EPA can finally develop and implement a program to ensure civil rights compliance among recipients of its funds. While robust administrative enforcement of Title VI is critical, Congress should also restore a right of action for private parties to bring Title VI disparate impact claims in the courts. We have waited 50 years for meaningful enforcement of Title VI— equality and the right of all people to clean air, clean water and healthy environments demand action now.
Marianne Engelman Lado is a Managing Attorney at Earthjustice, a nonprofit environmental law firm that uses the power of law and the strength of partnership to protect people’s health, preserve magnificent places and wildlife, to advance clean energy and to combat climate change. She chairs Earthjustice’s Environmental Health Practice Group. mengel email@example.com
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