"Major Environmental Justice Title VI Agreement Reached in Corpus Christi,"by Joseph Rich April-June 2016 issue of Poverty & Race
On December 17, 2016, a multi-million dollar settlement was entered resolving a Title VI environmental justice complaint filed by residents of the Hillcrest and Washington-Coles neighborhoods in Corpus Christi, Texas against the Texas Department of Transportation concerning what is known as the Harbor Bridge project. Dr. Robert Bullard, Dean of the School of Public Affairs at Texas Southern University, and known as the father of environmental justice, heralded this as a landmark agreement. Given the historic lack of effective implementation of the 1994 Executive Order No. 12898 addressing “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 Fed. Reg. 7629 (February 16, 1994)), this is an important step forward in addressing environmental justice at a time when the Flint water crisis has highlighted the severe adverse environmental impact suffered by low-income and minority communities.
IntroductionImplementation of Executive Order No. 12,898 and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., as a tool for achieving environmental justice has long been found wanting, particularly at the U.S. Environmental Protection Agency (EPA). In 2003 the U.S. Commission on Civil Rights found that EPA and four other federal agencies had not fully implemented the Executive Order and Title VI in the environmental decision-making context. (U.S. Comm’n on Civil Rights, Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice (2003), available at http://www.usccr.gov/pubs/envjust/ej0104.pdf.) The report found that “[o]f 124 Title VI complaints filed with EPA by January 1, 2002, only 13 cases, or 10.5 percent, were processed by the agency in compliance with its own regulations.” Id. at 57.
Despite the findings and recommendations of the Commission, the record of delay continued. Particularly egregious is EPA’s demonstrated record of noncompliance with the regulatory deadlines, a record that has caused real harm to communities burdened by the effects of environmental harm and deprived of environmental benefits. According to a 2011 Deloitte Report of EPA’s enforcement record, only six percent of the 247 Title VI complaints since 2001 were timely accepted or dismissed within the 20-day time frame, and 50% took over a year for acceptance. Id. at 19, 25. Case law provides examples of even worse delays. A recent investigation by the Center for Public Integrity summed up two decades of EPA’s delay as follows:
[A review of] 265 complaints filed from 1996 to 2013 shows that the EPA has failed to adhere to its own timelines: On average, the office took 350 days to decide whether to accept a complaint and allowed cases to stretch 624 days from start to finish. A consultant’s report, which examined cases from 1993 to 2010, found that the agency accepted or rejected just 6 percent within the allotted time period. Half took a year or more to be adjudicated. (Talia Buford, Thirteen Years and Counting: Anatomy of an EPA Civil Rights Investigation, Ctr. for Pub. Integrity, Aug. 7, 2015, http://goo.gl/qGpYBS.)
However, the processing and response of the Federal Highway Administration (FHWA) to the Title VI environmental justice complaint filed by residents of the Hillcrest and Washington-Coles neighborhoods in Corpus Christi, Texas in 2015 provides an example of progress in this increasingly important area of civil rights enforcement. The process that FHWA followed in investigating and working out a settlement of this matter contrasts with the major shortcomings in the EPA enforcement of Title VI that have been raised repeatedly for over 15 years and provides a model for improved environmental justice enforcement.
The Title VI ComplaintThe Corpus Christi Title VI complaint was filed by the Texas RioGrande Legal Aid and University of Texas Law Environmental Clinic on behalf of low-income and minority residents from the Hillside and Washington-Coles communities. (Attorneys for the complainants are preparing an article for the Clearinghouse Review concerning this matter and will provide it to the Commission when it published. The Texas Low Income Housing Information Service, headed by John Henneberger, assisted these attorneys throughout the process and the Lawyers’ Committee provided input during the negotiation of the settlement.)
The complaint alleged that a major bridge replacement, known as the Harbor Bridge Project, which had been proposed by the Texas Department of Transportation (TxDOT) to be financed in part by federal funding from the Department of Transportation, violated the civil rights of residents of the Hillcrest and Washington-Coles neighborhoods as a result of a proposed road to be built as part of the project that would cause unacceptable disparate harmful impacts to residents of these neighborhoods, including isolation, noise, air pollution, and other impacts.
The current Harbor Bridge is located at the mouth of the Corpus Christi ship channel. The plan for the new bridge is to move it further up the channel and raise it by 68 feet to allow the larger ships that can pass through the new Panama Canal to access the Port of Corpus Christi. The highway that connects to the bridge would be relocated away from downtown Corpus Christi and would bisect the Hillcrest and Washington-Coles neighborhoods, Corpus Christi's historic Black communities. These neighborhoods have a long history of past discrimination preceding the Harbor Bridge project stretching back to the days of Jim Crow segregation of African Americans. This history represents a classic example of environmental degradation of a predominantly minority neighborhood.
The Hillcrest neighborhood was first platted in 1916 and developed in the 1930s and 40s, along with the Washington-Coles and other nearby neighborhoods, prior to the industrialization of the Corpus Christi Ship Channel. At that time, Washington-Coles was specifically designated as the neighborhood for Black residents. In 1944, the City Council allowed Black home-owners to move into the Hillcrest neighborhood after being informed that Washington-Coles had no more room for new residents. Over the next two decades, Hillcrest transformed from a predominantly white community to a predominantly Black community.
The Port of Corpus Christi opened in 1922 and primarily shipped cotton. With the discovery of oil nearby in the 1930s, the construction of several refineries soon followed. In 1958, as industrial growth encroached on Hillcrest and Washington-Coles from the north, Interstate 37 was constructed on their south side, isolating them from the rest of residential Corpus Christi and leaving them surrounded by industry. Today the Corpus Christi ship channel is home to six refineries, numerous petrochemical and energy companies, and the eighth-largest port in the country. The Hillcrest and Washington Coles neighborhoods are surrounded by oil refineries, the Port of Corpus Christi, and highways. Residents live with air pollution, noxious odors, sirens, and industrial flares. Industrial accidents have caused evacuations as well as "shelter-in-place" warnings, and residents live the constant fear of a major accident or pollution release. The Harbor Bridge Pro- ject exacerbates these problems.
The FHWA’s Processing of the Title VI ComplaintThe processing of the Corpus Christi Title VI complaint by the FHWA stands in stark contrast to the enforcement record and practices of the EPA and is instructive for any federal agency’s Title VI environmental justice enforcement program. The complaint was received by FHWA on March 13, 2015. FHWA began its investigation immediately and issued a letter accepting the complaint and beginning the investigation on April 3, 2015.
The FHWA Office of Civil Rights staff were responsible for the investigation and immediately initiated a proactive investigation, making visits to Corpus Christi several times and meeting with residents in the impacted neighborhoods several times to explain the status of the investigation and possible outcomes. FHWA also put the Harbor Bridge Project on hold during the investigation which created time and leverage for the investigation and negotiations to occur in a timely matter.
The FHWA’s application of Title VI’s disparate impact standard in this environmental justice setting is instructive. Historically, EPA has been unwilling to find a civil rights violation unless one of the standards set by EPA pursuant to the environmental protection statutes it enforces has been violated. In fact, it has applied a presumption that Title VI is not violated if there is compliance with the environmental standards set by these statutes. This practice often results in ignoring other important factors, including the big picture of all of the burdens a community has to bear, how those burdens compare to those of other communities and the history of discrimination in the community impacted. When Title VI compliance is found based on this narrow presumption, it does not mean that minority populations are not adversely affected by federally funded programs when there is no violation of environmental laws. Indeed, most of the environmental standards that exist don't consider cumulative impacts of multiple pollutants and sources of pollution and don't consider other burdens the community may experience that make the negative impacts of pollution on that population more likely. In short, relying on environmental standards to determine Title VI compliance does not fully capture the harms to public health and way of life of minority populations affected by an environmental hazard.
Although FHWA never issued formal Title VI findings of a violation in the Harbor Bridge matter, it is the understanding of the attorneys who represented and assisted the complainants that FHWA avoided this kind of cramped analysis of the Title VI disparate impact analysis. Applying disparate impact analysis in an environmental context can be difficult. Therefore, complainants reached out to both the Department of Housing and Urban Affairs (HUD) and EPA, asking them to confirm the disparate impacts of the bridge on the minority communities. FHWA was helped in this regard by drawing on the Department of Justice’s civil rights expertise in applying a disparate impact analysis to its determination of Title VI compliance. Especially important, FHWA appeared to consider the cumulative impact of the project on the community as well as the likely impacts on the community, regardless of whether any environmental standards were violated.
Especially important to the FHWA’s successful processing of this complaint was its involvement of the complainants and members of the Hillside and Washington-Coles communities in the Title VI investigation and discussions of a remedial plan designed to settle the complaint. FHWA sought input from complainants and members of the Hillside and Washington-Coles communities from the time of the initial investigation through negotiations concerning the settlement agreement entered on December 17, 2015. (Failure to involve the community has been another major shortcoming of EPA Title VI environmental justice enforcement. The worst example of this is found in the Angelita C. v. California Department of Pesticide Regulation. After a delay of twelve years before EPA concluded that there was sufficient evidence to make a preliminary finding of a Title VI violation, EPA failed to inform complainants of this finding. It then proceeded to negotiate a settlement agreement with absolutely no involvement of the complainants in the negotiating process.) Community involvement in the negotiations made it apparent that there would be neighborhood-wide impacts from the project beyond the right-of-way and resulted in discussions of a broad remedy that would address impacts to an entire neighborhood.
Moreover, FHWA involved other federal agencies in the process. Even before the Title VI complaint was filed, EPA and the Department of Housing and Urban Development (HUD) had filed comments about the project echoing concerns being expressed by the affected community about the addition of air pollution and soil contamination to an already overburdened community, noise impacts, reductions in property values, and impacts to nearby subsidized housing residents. During negotiations of the settlement agreement, complainants and the FHWA sought input from HUD and EPA to assist in crafting a settlement. The Department of Justice also played a role in trying to coordinate the actions of these agencies through the Civil Rights Division’s Federal Coordination and Compliance Section. This Section is tasked with ensuring that all federal agencies consistently and effectively enforce civil rights statutes and Executive Orders that prohibit discrimination in federally conducted and assisted programs and activities and is especially well-suited for promoting this kind of coordination.
It was also clear early in the negotiating process that a satisfactory neighborhood-wide settlement could not be reached and funded unless a number of parties who were not directly involved in the Title VI complaint participated, including: (1) the Port of Corpus Christi, which had a direct interest in seeing the Harbor Bridge constructed; (2) the Corpus Christi Housing Authority, responsible for the public housing that would be directly impacted by the bridge project; and (3) the City of Corpus Christi. Each of these entities contributed to the settlement and the contribution of the Port, which is funding $20 million of the settlement, was crucial to the settlement. In sum, FHWA’s willingness to include other federal and local agencies in settlement discussions was critical to a successful outcome.
The multi-million dollar settlement resulted from a collaborative effort by the Port of Corpus Christi, City, the Housing Authority of Corpus Christi; the Federal Highway Administration (FHWA); and the Texas Department of Transportation (TxDOT). Specifically, the agreement focuses on enhanced mitigation options for affected residents and includes:
ConclusionThe resolution of the Harbor Bridge complaint provides an example of creative Title VI environmental justice enforcement. There are several positive aspects to FHWA’s handling of this matter. In particular, the timeliness of the investigation and resolution of the matter and involving complainants and affected communities, as well as other federal agencies and local governmental entities, in the Title VI process should be standard practice for all Title VI enforcement. Environmental justice matters have a broad impact and typically raise complex factual and legal issues. Reaching out for assistance and coordination is important in fully addressing these issues.
At the same time, there are areas of this process that could have been improved. First, while it is our understanding that FHWA sought assistance from the Department of Justice in applying a disparate impact analysis to this matter, explicit standards and guidance for analyzing disparate impact in the environmental justice context is badly needed, not only for EPA but for all agency Title VI programs. Second, it is not clear that the Department of Justice’s Federal Coordination and Compliance Section has played the type of coordinating role in other environmental justice matters that it did in the Harbor Bridge matter. It should increase this role in the future. Third, while complainants were consulted in negotiating the settlement agreement, they were not permitted to be signatories to the settlement agreement and this will complicate any future enforcement of the agreement that may be necessary. It is not clear if this is standard practice of federal agencies in all Title VI enforcement matters. But as third party beneficiaries of such settlements, complainants should be signatories to them. Indeed, in an early Title VI enforcement matter by the Department of Transportation, it appears that complainants were part of the settlement agreement. See: http://www.fhwa.dot.gov/environment/environmental_justice/case_studies/case3.cfm and https://www.dropbox. com/s/8nbx2ns3prf9x6h/North%20Carolina%20Title%20VI%20Article%2022ClearinghouseRev4422.pdf?dl=0.
Finally, this case provides an example of the need for close coordination with HUD in the enforcement of many environmental justice matters. Much of the agreement is directed at finding housing opportunities for the Hillcrest and Washington-Coles residents and it is important to incorporate the requirements of the Fair Housing Act into such reviews. The Fair Housing Act not only broadly prohibits discrimination in all aspects of housing, but also requires federal agencies involved in housing and urban development and recipients of federal housing assistance to affirmatively further fair housing by taking steps to remedy residential segregation and its harms, including adverse environmental health effects. (42 U.S.C. 3608; 24 C.F.R. 5.154(d).) Therefore, in any Title VI review in which housing issues arise, reaching out to HUD for coordination and advice should be routine.
Joseph Rich is Co-Director of the Fair Housing & Community Development Project at the Lawyers’ Committee for Civil Rights Under Law. email@example.com
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