Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice
Title VI and Environmental Justice
Title VI of the Civil Rights Act of 1964 provides a statutory basis for the nondiscrimination protections of the Constitution, and is the primary mechanism of seeking relief from discriminatory activity in federally funded programs and activities. It provides administrative relief, usually in the form of a federal agency revoking, amending, or suspending a permit issued by its state or local funding recipient, or withholding federal funds from the state and local permitting authorities if their programs are determined to violate Title VI.
Section 601 of Title VI provides that “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.” This provision is sufficiently broad to include prohibiting discrimination in state or local programs or activities, including permitting assessments, that receive federal funds. Section 602 of Title VI directs agencies distributing federal funds to issue regulations implementing § 601, and mandates that these agencies create a mechanism for processing complaints of racial discrimination.
To establish a prima facie case of discrimination, complainants challenging environmental permitting decisions pursuant to § 601 must demonstrate that the decision was motivated by intentional discrimination. This requirement has proved to be a difficult burden for environmental justice complainants to satisfy. Section 602, however, allows a violation to be established by proof of unintentional discrimination or disparate impact, arguably a less stringent burden of proof. Section 602 requires federal agencies to issue regulations detailing how each agency will verify if grant recipients or applicants are participating in racially discriminatory practices. Additionally, federal agencies establish procedures for investigating and reviewing complaints of racial discrimination that are forwarded to their funding recipients.
In 1970, in order to more effectively address pollution control, President Nixon reorganized environmental functions of other federal agencies into the newly created Environmental Protection Agency. This reorganization created tension within the agency, which was acknowledged in June 1971 by EPA Administrator William Ruckelshaus during testimony before the U.S. Commission on Civil Rights. Although Title VI applies to state and local siting and permitting authorities receiving federal funds, Administrator Ruckelshaus viewed EPA’s enforcement of Title VI as conflicting with the agency’s regulatory function. The administrator testified that EPA has an affirmative obligation to ensure compliance with Title VI, but as a regulatory agency, it has “a somewhat different set of problems” in attempting to take affirmative action to see that Title VI is enforced. For example, Administrator Ruckelshaus asserted that withdrawing funds from Title VI violators inhibits EPA’s ability to regulate industry effectively. Receiving federal funding, it is argued, creates a strong incentive to comply with both Title VI and environmental regulations.
In 1972, EPA issued Title VI regulations prohibiting its beneficiary recipient programs from participating in actions that “directly or indirectly, utilize criteria or methods of administration which have or may have the effect of subjecting a person to discrimination because of race, color or national origin.” This regulation later became effective in August 1973. An amendment in 1984 promulgated regulations that prohibited the selection of a site or the location of a facility that would have discriminatory effects on members of the public. Although the regulations also granted the agency’s administrator authority to refuse, delay, or discontinue EPA funding to any program recipient found to be operating in a discriminatory manner, the process for terminating a recipient’s funding was challenging.
Despite creating comprehensive regulations, EPA did not enforce its Title VI regulations against state and local recipients of federal funding until 1993. Prior to this time, as first expressed in the 1970s, EPA considered itself as a monitor of pollution control, not an agency equally concerned with issues of environmental justice and public participation in the environmental decision-making process. This approach likely contributed to an increasing number of Title VI complaints alleging discriminatory environmental and health effects caused by the issuance of permits by state and local authorities. Nevertheless, communities continued filing disparate impact complaints, despite EPA’s failure to enforce its Title VI regulations.
The Office of Civil Rights (OCR), formerly known as the Office of Equal Opportunity, is responsible for addressing Title VI complaints and enforcement issues. Through this office, allegations of discrimination in violation of the agency’s Title VI regulations are reviewed and investigated. In many instances, however, OCR either did not promptly investigate the complaints, or the complaints were dismissed for jurisdictional or technical reasons. Between September 1993 and July 1998, EPA did not uphold a single Title VI complaint. During this period, 58 Title VI complaints were filed with the agency, including 50 challenging state or local permitting decisions.
As of July 1998, 31 of these complaints had been rejected, 15 were accepted for investigation, and 12 were still pending acceptance. In 1997, the Colorado River Native Nations Alliance, for example, filed a Title VI complaint to prevent the construction of a nuclear waste facility on Native American sacred land in the Mojave Desert’s Ward Valley. It took EPA more than a year to respond to the complaint.
EPA’s Interim Guidance for Investigating Title VI Complaints
EPA issued its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance) in 1998 to provide the Office of Civil Rights a mechanism for implementing and enforcing EPA’s Title VI regulations, including providing guidance for investigating Title VI complaints and analyzing disparate impact allegations. EPA’s Interim Guidance also established parameters for filing a properly pleaded Title VI complaint. The Interim Guidance did not create any rights enforceable by parties in litigation with the United States, and allowed EPA to opt not to follow its own guidance depending on the specific facts of a complaint.
EPA adheres to the following Title VI complaint processing procedure: acceptance of the complaint, investigation/disparate impact assessment, rebuttal/mitigation, justification, preliminary finding of noncompliance, formal determination of noncompliance, voluntary compliance, and informal resolution.
The Interim Guidance addressed Title VI complaints alleging disparate impact resulting from the funding recipient’s permitting program. The five-step disparate impact analysis adopted by EPA in the Interim Guidance provides for:
Identifying the population affected by the facility’s permit.
Determining the racial/ethnic composition of this population.
Examining other permitted facilities that should be included in the analysis and the racial/ethnic makeup of the populations affected by these permits.
Conducting a disparate impact analysis, which at least includes analyzing the racial or ethnic factors within the population (as well as comparing the racial characteristics of the affected population with those of a nonaffected population).
Determining the significance of the disparity pursuant to Title VI by using arithmetic or statistical methods.
If EPA concludes that the challenged permit creates a disparate impact under this analysis, the permitting authority must rebut EPA’s findings. This may be done by either supplying a legitimate reason why the benefits of the proposed facility outweigh the severity of the disparate impact or by submitting and obtaining approval of a plan for lessening the disparate impact through implementation of a less discriminatory alternative.
According to EPA, “merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justification” and is insufficient to rebut a finding of disparate impact. The permitting agency’s reason for approving the project may be considered in rebuttal. The permitting authority may justify the permit, despite the disparate impact, based on the existence of substantial legitimate interests. In these circumstances, OCR may examine several factors, in addition to the specific facts of the case, such as whether there is some value to the recipient in the permitted activity, the gravity of the disparate impact, and whether the articulated benefits associated with the permit could be expected to yield any advantages to the community that is the subject of the Title VI complaint.
In the justification phase of a disparate impact analysis, a mitigation plan can be submitted for consideration. If EPA finds that the permit violates Title VI, the plan is evaluated by OCR and other EPA experts. EPA will review the state or local government’s interest in consenting to the plan, the gravity of the disparate impacts, if the permit concerns a renewal of an existing facility “with demonstrated benefits” or a new project with “more speculative benefits,” and if the plan will provide additional employment or other benefits to a community involved in the Title VI complaint. If EPA determines that a recipient’s permitting program is discriminatory, the agency may move to suspend, deny, annul, or terminate federal funding to a state or local authority when it also determines that (1) mitigation options are impossible, (2) mitigation will not bring the recipient into compliance, or (3) the recipient cannot sufficiently justify the issuance of the permit.
Using Title VI and EPA’s Interim Guidance to Pursue Environmental Justice
There are divergent opinions about the appropriateness of employing a disparate impact analysis to address Title VI complaints. Business representatives and local government officials overwhelmingly object to using disparate impact in the legal analysis of Title VI environmental violations. These groups contend that EPA’s Interim Guidance removes their discretion in the decision-making process. In fact, the Environmental Council of the States urged EPA to withdraw its Interim Guidance, contending that it is in conflict with current state and local land-use laws; that it does not provide definitions, methodologies, and standards which are precise or based on sound, peer-reviewed science; and that it was not developed with the input of the states, who have primary responsibility for implementing most of the nation’s environmental protection programs. The National Governors Association echoed this perspective in January 1999, when it adopted its first environmental justice policy. The association asserted that the Interim Guidance infringed upon states’ land-use authority.
In addition, Glenn Lami, chief counsel of the Washington Legal Foundation’s Legal Studies Division, said EPA’s Title VI investigations should only focus on whether complainants establish the existence of intentional discrimination, instead of whether disparate impact exists. The Washington Legal Foundation objected to using a disparate impact analysis and asserted that it was an attempt to “incorporate a disparate impact policy that was created in employment law into the environmental law area. . . . Our feeling is that it is still an open legal issue.” Mr. Lami added that there was no legal foundation for combining environmental and employment law concepts. These and other responses to the guidance made it apparent that environmental stakeholders disagreed on what the appropriate legal standard should be for reviewing Title VI complaints.
The U.S. Conference of Mayors and various chambers of commerce also objected to the Interim Guidance. These groups criticized what they saw as the failure of the guidance to consider the economic plight of poor neighborhoods. According to testimony from Harry C. Alford, president of the National Black Chamber of Commerce, before the House of Representative’s Committee on Commerce in 1998, “we looked at this whole issue of environmental justice and the Title VI guidelines as an opening for environmental justice [advocates] to go in and throw a monkey wrench against any economic development which we feel is needed, hub zones, empowerment zones, enterprise zones.”
Environmental advocates, though more supportive of EPA’s effort to draft Title VI complaint guidance, did not wholly embrace the Interim Guidance. Some environmental justice advocates maintained that Title VI complainants should not just rely on a disparate impact analysis to substantiate their environmental justice claims. In fact, environmental complainants have looked for historical patterns of discrimination to challenge environmental decisions on equal protection grounds and to supplement statistical evidence of environmental disparate impact.
The Interim Guidance did not clearly indicate if the complainant has the burden of proving that less discriminatory options exist or if the recipient must demonstrate that these options do not exist. Furthermore, it was argued that EPA should require recipients to implement a less discriminatory option unless the recipient can demonstrate that the alternative is significantly more expensive, less efficient, and less safe than the more discriminatory option.
The controversy over the Interim Guidance continued, and Congress eventually intervened. Congress, like some business organizations, believed that the Interim Guidance was an ambiguous extension of Executive Order 12,898. According to Representative Joe Knollenberg of Michigan, the Interim Guidance “subject[ed] any business that [sought] an environmental permit to construct a new facility or expand an existing one to the whim of any individual or group who feels that issuing the permit has a ‘disparate impact’ on a minority community.”
In October 1998, Congress passed an appropriations bill that included a rider provision suspending EPA’s authority to accept new Title VI complaints until the agency published a final Title VI guidance. Representative Knollenberg, a member of the House Appropriations Committee, was responsible for initially and repeatedly attaching the rider to EPA’s budget appropriations. Accordingly, members of Congress continually voted to add rider provisions to the agency’s appropriations bills from October 1998 until September 2001, which effectively prevented EPA from investigating Title VI complaints received after October 21, 1998. The effect of the appropriations rider and the delay in issuing final Title VI guidance served to relax environmental enforcement against industry and state authorities who had allegedly violated Title VI.
The Clinton administration provided a response to what it viewed as the rider’s detrimental effect on environmental enforcement efforts. In June 2000, the Office of Management and Budget strongly objected to the rider’s inclusion in the FY 2001 appropriations bill and characterized the rider as “anti-environmental.” OMB went on to note that:
The Administration is concerned that the . . . bill has retained the language regarding EPA’s Title VI interim guidance. As a matter of principle, the language is a problem because it restricts our ability to effectively process and resolve complaints. The Administration continues to object to this language and notes that revised draft guidance is expected to be available shortly for public review and comment.
Congress did not attach this restrictive rider to EPA’s 2002 appropriations bill, due to its confidence in President George W. Bush’s anticipated approach to environmental issues. In fact, the Bush administration’s environmental strategies have been characterized as pro-industry and anti-regulation of pollution and environmental hazards. The Clear Skies Act and the funding of the Superfund program are cited as examples of the administration’s pro-industry approach. The administration introduced new environmental legislation known as the Clear Skies Act, which some contend would ultimately increase air pollution levels. Sheila Foster, a law professor at Fordham University and senior fellow at the New Democracy Project, and Swati Prakash, environmental health director for West Harlem Environmental Action, asserted that the Clear Skies Act repeals the Clean Air Act’s new source review requirements that facilities install current pollution control equipment when expanding their capacities. In addition, the Clear Skies Act provides emissions allowances or credits for nitrogen oxides and mercury pollution within regions. Power plants would be permitted to emit as much of these substances as long as they could purchase credits from other plants. Foster and Prakash noted that in the San Francisco Bay Area, “approximately 87 percent of pollution credits generated by ‘cleaner’ plants were bought by refineries and power plants located in heavily industrialized and predominantly lower-income and minority neighborhoods of the bay area’s Contra Costa County.” Also, under the Bush administration, the parties responsible for creating the original contamination do not pay for the cleanup as a result of the elimination of the “polluter pays” tax used by the Superfund program. With the elimination of the tax, parties responsible for polluting pay for 70 percent or less of the cleanup for Superfund sites, while taxpayers compensate for the remaining amount. Over time, the amount paid by taxpayers would significantly increase.
The lifting of the rider set the stage for processing a backlog of Title VI complaints, and for finalizing EPA’s Interim Guidance. This guidance was due to be finalized in 1999; however, events overtook EPA and the revision process.
Application of the Interim Guidance: The Shintech and Select Steel Decisions
Before EPA could issue a final guidance, some of the concerns relating to the effectiveness of the Interim Guidance in analyzing Title VI complaints came to fruition in the Shintech decision in 1998. EPA accepted the Shintech and Select Steel complaints for investigation prior to the October 21, 1998, moratorium on accepting new Title VI cases.
Shintech was expected to be the first case decided under EPA’s Interim Guidance. The controversy began when Shintech, a Japanese-owned company, selected Convent, in St. James Parish, Louisiana, as the site for a toxic waste facility. St. James Parish, located in a heavily industrialized region, is a low-income and predominately African American community. The company gained support for the plant by promising to generate new jobs and to hire half of its 700 construction workers from the local area, 165 permanent employees, and 90 permanent contract employees. Shintech also promised to invest in job training. As a result, most local residents, the St. James chapter of the NAACP, the United Chamber of Commerce, and the Black Chamber of Commerce supported the construction of the Shintech facility.
In May 1997, the Louisiana Department of Environmental Quality issued final air quality operating permits to Shintech, allowing the facility to emit substances such as polyvinyl chlorides, chlor-alkali, and vinyl chloride monomers. One month later, the Tulane Environmental Law Clinic and Greenpeace filed a complaint with EPA’s Office of Civil Rights on behalf of the St. James Citizens for Jobs & the Environment, the Louisiana Environmental Action Network, and several other concerned organizations. The complaint alleged that the permit granted by the Louisiana Department of Environmental Quality violated EPA’s Title VI regulations prohibiting recipients’ activities that create a disparate impact on minority populations.
The allegations of disparate impact were supported, in part, by the fact that in 1995 the average St. James Parish resident was exposed to 360 pounds of toxic air pollutant releases, but the average Louisiana resident was exposed to only 21 pounds; 95 percent of the 300 people living within one mile of the proposed plant were black and 49 percent of the households had incomes of less than $15,000. In addition, in a 50-square-mile area surrounding the site of the facility, 80 percent of the 4,500 residents were black, and 49 percent of the households earned less than $15,000 a year. At the time of the Shintech case, 18 toxic waste facilities, producing approximately 20 percent of Louisiana’s air pollution, were already located within a four-mile radius of St. James Parish.
OCR accepted the complaint for investigation, finding that the disparate impact claims “deserve[d] serious attention.” The final decision on Shintech was expected during the summer of 1998, but the decision was delayed due to EPA’s request that its Science Advisory Board review the agency’s methods of determining disproportionate environmental “burdens.” The board’s decision was expected in October 1998. The agency produced a draft report but was unwilling to release a final decision on Shintech’s Title VI violations until after it had revised the Interim Guidance in 1999.
EPA’s response to the allegations of Title VI violations in Shintech caused business leaders and government officials to accuse the agency of failing to adhere to the Interim Guidance by not considering the economic benefits the facility would bring to the low-income residents of St. James Parish.
Largely due to EPA’s delay in releasing a final decision in the Shintech case and the impact of the environmental justice community’s opposition to the plant’s anticipated location and operation, on September 17, 1998, Shintech transferred its proposed facility to Plaquemine (Iberville Parish), Louisiana, a predominately white, middle-class community. It should be noted that the proposed Plaquemine facility was less expensive for Shintech to operate, in comparison to the Convent site it originally selected. The Plaquemine location allowed the plant to pump in raw materials from a nearby Dow Chemical facility instead of producing the raw materials. After Shintech relocated the plant to a more practical location, the move seemed to confirm suspicions that race played a role in the company’s original decision to construct the facility in St. James Parish, a minority community already overburdened with environmental pollutants.
In contrast to its delayed response in Shintech, EPA expedited its examination of another Title VI complaint in the case of St. Francis Prayer Center v. Michigan Department of Environmental Quality, also known as Select Steel, in 1998. In June 1998, the Michigan Department of Environmental Quality approved a Clean Air Act Prevention of Significant Deterioration (PSD) permit for the construction of a steel recycling mini-mill in Flint, Michigan’s Genesee Township by the Select Steel Corporation. As a result, the St. Francis Prayer Center filed a Title VI complaint with EPA alleging that the Select Steel mill would have a discriminatory impact on minority residents and that the permitting process was conducted in a discriminatory manner.
The proposed location for the facility was near a largely African American community. OCR accepted the complaint for review and, thereafter, was pressured to resolve the issue as quickly as possible due to threats by Select Steel that it would move its plant site and the related 200 jobs to Ohio if EPA delayed making a decision. The complainant in Select Steel encouraged EPA to thoroughly review the situation. Similarly, environmental justice advocates urged the agency to delay its decision, fearing it would succumb to political pressures and approve the permit.
Members of the media and state officials attacked EPA’s interest in reviewing the environmental burden placed on the community. Michigan Governor John Engler criticized the agency in a press conference in Genessee Township:
This is about every company that has ever had to deal with the EPA’s reckless, ill-defined policy on environmental justice. . . . The EPA is imposing their bureaucratic will over this community and punishing a company with the latest environmental standards, all because of a baseless complaint. . . . The net result is that the EPA is a job killer.
Kary L. Moss, author of a law review article titled “Environmental Justice at the Crossroads,” observed that “[t]he Detroit News . . . devoted substantial resources to attacking the [Interim] Guidance and the environmental justice movement generally.” According to Moss, one reporter wrote more than 40 news stories on this subject, of which 23 were given front-page status and were supplemented by editorials calling EPA a “rogue agency” and the “Environmental Deception Agency.”
EPA expedited its review of Select Steel and rendered its decision on October 30, 1998. EPA’s Office of Civil Rights dismissed the St. Francis Prayer Center’s complaint based on the absence of specific EPA regulations monitoring the types of dioxin emissions that were applicable to the Select Steel facility. EPA also found that the permit satisfied the National Ambient Air Quality Control Standards for ozone and lead. Accordingly, any emissions from the Select Steel facility could not be viewed to be harmful or adverse to the neighboring community and, therefore, EPA saw no need to determine whether there was an adverse disparate impact.
There were varied reactions to the Select Steel decision. Supporters of industrial development and local officials applauded the outcome. Contrarily, environmentalists emphasized that satisfying the emission rates under the National Ambient Air Quality Control Standards is not the same as complying with Title VI. Community advocates focused on EPA’s Interim Guidance, which expressly provided that “merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered as substantial, legitimate justification.”
Following the Select Steel decision, environmental justice and community advocates with pending Title VI cases filed a joint petition requesting EPA to either reconsider its findings in Select Steel or, in the alternative, state that the decision would not serve as a basis for deciding the pending claims. In March 1999, largely due to this petition, Select Steel chose to build the steel mill in Lansing, Michigan, instead of its proposed site in Flint. Despite EPA’s ruling in their favor, Select Steel officials maintained they were no longer willing to challenge EPA and opponents to the proposed mini-mill in Flint.
The handling of the Select Steel case highlighted the need to revise the Interim Guidance, since it was unclear to what degree facilities’ compliance with existing environmental regulations would bar Title VI disparate impact complaints. Environmental advocates observed that minority communities would still be disproportionately affected even if facilities satisfy these environmental regulations. The Interim Guidance supports this interpretation by demonstrating that complying with relevant environmental regulations is not usually a substantial environmental justification for a permitting decision. After Select Steel, it is clear that the Interim Guidance did not provide an unambiguous standard for measuring the cumulative degree of pollution from all industrial facilities in a given community. Because of these and other difficulties that potentially hinder the ability to use the Interim Guidance to address Title VI complaints, EPA began revising the document.
EPA’s Response to Shintech and Select Steel: Reassessing the Interim Guidance
After the Shintech and Select Steel decisions, environmental stakeholders anticipated additional guidance from EPA clarifying how alleged Title VI violations would be analyzed. EPA took two important steps to respond to criticism of the Interim Guidance:
Requesting that the Science Advisory Board make recommendations for perfecting the method in which EPA determines whether a permit creates a disproportionate impact on people of color.
Convening a Title VI Implementation Advisory Committee to define what constitutes an objectionable disparate impact, review and evaluate how state and local agencies operate permitting programs covered by Title VI, develop recommendations for EPA’s Title VI program, and develop a template for state and local environmental justice programs. The committee would collaborate with environmental stakeholders and EPA’s National Advisory Council on Policy and Technology.
In response to the Science Advisory Board’s recommendations, EPA began modifying its disparate impact methodology. Although the Title VI Implementation Advisory Committee did not reach a consensus on the primary question of defining objectionable disparate impacts, subsequent EPA Title VI policy guidelines reflected other elements of the Implementation Committee’s recommendations. The Title VI Implementation Committee recommended that EPA:
Revise and implement the Interim Guidance on the basis of broad public review and comment.
Develop policy statements addressing other areas of concern, including enforcement policy, Brownfields redevelopment, and the control of nonregulated sources.
Expand research and data-gathering regarding cumulative risks and synergistic effects.
Develop and disseminate better tools for conducting Title VI assessments.
Analyze precedent set in other areas of civil rights law.
Implement pilot projects with state and local governments that address various aspects of environmental justice issues, document the results, and distribute their findings to the public.
Undertake a concerted effort to integrate Title VI issues and constituencies into other major agency initiatives.
In addition to these recommendations, the Title VI Implementation Committee endorsed several general principles intended to provide a basis for EPA’s future activities. These principles included:
Endorsing the concept of environmental justice.
Recognizing that early and proactive steps are necessary to deter Title VI violations and complaints.
Acknowledging that affected communities should not be viewed by EPA as just another stakeholder group.
Encouraging EPA to develop clear and accessible standards for evaluating Title VI complaints.
Maintaining that EPA should recognize that cumulative exposure to pollution and the resulting effects are important concerns in Title VI cases.
Encouraging EPA to engage in meaningful communication with all affected stakeholders about its Title VI guidance for recipients and investigations.
As a result of these recommendations and general principles, in June 2000, EPA’s Office of Civil Rights issued the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance) and the Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance). The Draft Revised Investigation Guidance and the Draft Recipient Guidance provide details that were lacking in the Interim Guidance.
Draft Recipient Guidance
The Draft Recipient Guidance provides recipients with a range of strategies for improving existing permitting programs and for decreasing the likelihood of Title VI complaints alleging either discriminatory human health or environmental effects resulting from permitting decisions. It provides strategies for avoiding complaints of discrimination during the public participation phase of the permitting process. The guidance provides, for example, information on using informal resolution techniques to resolve impending Title VI issues, and conducting assessments to determine the existence of an adverse impact. The guidance is not mandatory. In developing the Draft Recipient Guidance, EPA adopted several guiding principles, which incorporated the principles and recommendations made by the Title VI Implementation Advisory Committee. The guiding principles adopted for the Draft Recipient Guidance include recognition that:
“All persons regardless of race, color, or national origin are entitled to a safe and healthful environment.
Strong civil rights enforcement is essential.
Enforcement of civil rights laws and environmental laws are complementary, and can be achieved in a manner consistent with sustainable economic development.
Potential adverse cumulative impacts from stressors should be assessed, and reduced or eliminated wherever possible.
Research efforts by EPA and state and local environmental agencies into the nature and magnitude of exposures, stressor hazards, and risks are important and should be continued.
Decreases in environmental impacts through applied pollution prevention and technological innovation should be encouraged to prevent, reduce, or eliminate adverse disparate impacts.
Meaningful public participation early and throughout the decision-making process is critical to identify and resolve issues, and to ensure proper consideration of public concerns.
Early preventive steps, whether under the auspices of state and local governments, in the context of voluntary initiatives by industry, or at the initiative of community advocates, are strongly encouraged to prevent potential Title VI violations and complaints.
Use of informal resolution techniques in disputes involving civil rights or environmental issues yield the most desirable results for all involved.
Intergovernmental and innovative problem-solving provide the most comprehensive response to many concerns raised in Title VI complaints.”
The Draft Recipient Guidance provides three general approaches recipients should use to analyze and resolve issues that may lead to Title VI complaints: (1) a comprehensive approach, (2) an area-specific approach, and (3) a case-by-case approach. Specifically, the comprehensive approach integrates all or most of the Title VI activities in the Draft Recipient Guidance. These include implementing staff training opportunities, encouraging effective public participation and outreach, conducting adverse impact and demographic analyses, encouraging intergovernmental involvement, participating in alternative dispute resolution, reducing or eliminating the alleged adverse disparate impact(s), and evaluating Title VI activities. The area-specific approach identifies geographic areas where adverse disparate impacts may exist, while the case-by-case approach allows a recipient to develop criteria to evaluate permit actions that are likely to raise Title VI concerns.
The Draft Recipient Guidance generated numerous responses, and the most significant of those comments relate to area-specific agreements and alternative dispute resolution. Several of the stakeholder comments relating to these areas are briefly presented here. In the guidance, EPA encourages recipients to enter into “area specific agreements,” which identify “geographic areas where adverse disparate health impacts or other potential Title VI concerns may exist.” This concept encourages recipients to work collaboratively with affected communities to reduce or eliminate adverse disparate impact in particular geographic areas. Some agreements may, for example, identify a maximum amount of pollutants for air and water that can be discharged into a certain area over a particular time period. Area-specific agreements also require recipients to continue operating their programs in compliance with the nondiscrimination requirements of Title VI and EPA’s Title VI regulations.
Although state or local recipient agencies are responsible for developing area-specific agreements, OCR reviews these agreements to ensure that they achieve the appropriate results. If OCR accepts a Title VI complaint for investigation that alleges adverse disparate impact relating to permitting activity in an area-specific agreement, it reviews the area-specific agreement and defers to the provisions in the agreement. Deference is given only if the agreement is “supported by underlying analyses that have sufficient depth, breadth, completeness, and accuracy, and are relevant to the Title VI concerns, and will result in actual reductions over a reasonable time to the point of eliminating or reducing, to the extent required by Title VI, conditions that might result in a finding of non-compliance with EPA’s Title VI regulations.”
OCR closes an area-specific agreement investigation if it determines that the agreement eliminates or reduces an existing adverse disparate impact. OCR can, however, initiate its own investigation in Title VI complaints associated with area-specific agreements, if it determines that they do not produce significant reductions in environmental hazards that would result in a finding of noncompliance with EPA’s Title VI regulations. In addition to initiating its own investigation, OCR can also consider other information, including information from complainants that relate to Title VI complaints associated with these agreements.
Furthermore, as an overall provision of area-specific agreements, OCR generally relies on its initial assessment and dismisses Title VI complaints against a recipient that include allegations relating to the recipient’s other permitting actions that are covered by the same area-specific agreement. An exception to this guideline, however, occurs in those instances where complaints relating to an area-specific agreement contain allegations that the agreement is improperly implemented or that circumstances have substantially changed. In these circumstances, OCR would not dismiss the Title VI complaints.
Nevertheless, both industry representatives and environmental groups remain skeptical of area-specific agreements. For example, Chevron Companies commented that area-specific agreements encourage states to stigmatize local communities as problem areas and effectively redline them. Chevron maintained, however, that to minimize the likelihood of being involved in a future Title VI complaint, industry is required to conform to the demands of community and environmental groups who may force businesses to make extensive concessions so that residents will assent to area-specific agreements. The likelihood that minority and poor communities would be able to coerce industry into conciliatory arrangements is unlikely. As previously noted, most communities that have been adversely and disproportionately affected by environmental decisions do not have the same access to legal and technical expertise as industry stakeholders. Because of this unequal bargaining power, consenting to area-specific agreements may hinder minority and poor communities from exercising an essential means of regulating pollutants in their neighborhoods. To guard against abuse that could result from inequities in resources and knowledge, EPA should vigorously monitor area-specific agreements to ensure that they are achieving appropriate and equitable results.
Advocates and communities, like industry, expressed strong reservations about such agreements. According to the National Environmental Justice Advisory Council, these agreements induce business and industry to commit “fraud”:
Recipients . . . polluters and developers have every incentive to draft a fine-sounding plan, set up a few front groups of employees, friends, and/or relatives of the industry or developer, and have the front groups sign the plan. Then after a group whose members are actually residents of the affected community of color files a Title VI complaint with EPA, the recipient triumphantly produces the area-specific agreement for EPA’s review, with the expectation that the complaint will be dismissed.
Similarly, the Center on Race, Poverty, & the Environment contended that the only enforceable result of area-specific agreements is EPA’s plan to use them to dismiss Title VI complaints, without establishing whether the assertions contain any merit.
EPA, in its Draft Recipient Guidance, also discusses and urges funding recipients to incorporate specific Title VI activities and approaches such as effective public participation, intergovernmental involvement, and alternative dispute resolution (ADR). EPA strongly supports ADR as a means of reducing Title VI administrative complaints and managing its complaint caseload. EPA views ADR as a case management tool because EPA can dismiss a complaint if it is resolved in ADR and withdraw it from the administrative process. EPA may also negotiate with a funding recipient to reach an agreement and request that other parties in the matter participate in the negotiation. In these informal proceedings, OCR’s primary responsibilities are to secure the interests of the federal government and to prevent violations of Title VI and EPA’s implementing regulations in the recipient’s programs or activities.
Not many of the stakeholders who commented on the guidance supported informal resolution techniques as an equitable strategy for resolving Title VI complaints. In fact, Shintech, Inc., noted that in those instances where complainants are excluded from informal resolution, it could be interpreted as a one-sided negotiation that does not adequately represent their interests or their legal rights.
Similarly, the Center on Race, Poverty, & the Environment observed that informal resolution does not factor in inequalities in bargaining power and technical resources that leave most complainants at a disadvantage when solving a Title VI dispute. Unlike recipients, poor communities and neighborhoods of color that wish to resolve Title VI complaints may not have the resources to be represented by legal counsel or negotiation experts who are skilled at conciliation techniques. Community residents also may not have sufficient resources to obtain technical information and data that could prove the existence of disparate impact. In effect, there is no guarantee that the complainants’ interests will be fairly considered. Contrarily, formal adjudication settings have established procedural rules that equalize the positions of the parties and ensure the fairness of the proceeding. Alternative dispute resolution in the environmental context is discussed more specifically in Chapter 5.
Draft Revised Investigation Guidance
The Draft Revised Investigation Guidance, the companion to the Draft Recipient Guidance, establishes how the Office of Civil Rights processes Title VI complaints alleging discrimination in permitting pursuant to EPA’s implementing regulations. The guidance describes procedures that EPA staff can use to investigate Title VI administrative complaints, as well as provides information for the public on the agency’s internal investigation procedures. It also explains how OCR determines if a permitting decision creates objectionable adverse impacts and judges the recipient’s efforts to diminish them. According to OCR’s director, the Draft Revised Investigation Guidance explains to all stakeholders, especially state and local government entities, the types of concerns that Title VI addresses and their roles in the investigative process.
According to the Draft Revised Investigation Guidance, OCR adheres to the following steps when processing Title VI complaints, pursuant to federal standards: acknowledgement of the complaint; acceptance of the complaint for investigation, rejection, or referral; investigation; preliminary finding of noncompliance; formal finding of noncompliance; voluntary compliance; and the hearing/appeal process.
The Draft Revised Investigation Guidance offers a more detailed explanation of how EPA determines if an environmental impact is harmful as experienced by individuals based on their national origin, race, or color, and if so, whether this impact is a defensible circumstance. This guidance expands the definition of disparity analysis concepts, which were mentioned in the Interim Guidance, and provides additional information on how the agency will consider existing environmental laws, regulations, policies, and scientific standards to determine when health indicator levels are adverse. Additionally, the Draft Revised Investigation Guidance explains the method used to identify and determine the characteristics of the affected population. Lastly, the guidance presents a six-step procedure that OCR will use to determine whether an adverse disparate impact exists: assessing applicability of Title VI to the permit, defining the scope of the investigation, conducting an impact assessment, making an adverse impact decision, characterizing populations and conducting comparisons, and making an adverse disparate impact assessment.
Environmental Stakeholders’ Responses to the Draft Revised Investigation Guidance
State recipients, industry representatives, community residents, and environmental justice and civil rights advocates had varying responses to the investigative guidance. During the comment period, environmental justice advocates generally did not embrace the substance of the guidance. State officials and industry representatives issued guarded praise for EPA’s attempt to clarify the Interim Guidance, although they expressed concern about particular subject areas. In addition to other overall categories of observations, EPA received comments that dealt with the overall lack of enforceable rights and agency obligations; the restriction of the applicability of Title VI to those recipients who are the direct cause of environmental hazards; the lack of applicability of the guidance to EPA actions that cause adverse disparate impacts; the questionable utility of alternative dispute resolution in the Title VI enforcement context; EPA’s reluctance to conduct an independent analysis of environmental impacts and the agency’s reliance on recipients’ analyses; the use of “cumulative impacts” when assessing environmental impacts; and the utility of area-specific agreements.
Perception of an Overall Lack of Enforceable Rights and Agency Obligations. A number of the comments received from industry and local government representatives, as well as from environmental justice and community stakeholders, maintained that the guidance was not specific enough to determine when violations of Title VI occur in permitting situations. Industry representatives contended that the guidelines allowed EPA to retain excessive discretion in determining issues that were critical elements in complying with Title VI. Other observations questioned which complaints EPA would actually investigate and when the start of the 180-day statute of limitations for filing a Title VI complaint commenced. The state of New Jersey urged EPA to provide a consistent and clear definition of disparate impact, so that recipients and communities would know when discriminatory acts occurred. Stakeholders also had divergent opinions on the appropriateness of EPA’s position, that since it is unlikely that a single permit is responsible for adverse disparate impacts in a community, denial or revocation of that particular permit is not an appropriate remedy. As a result of these and other issues, the guidance left environmental stakeholders questioning when alleged violations of Title VI are enforced, when complaints should be filed, and who is responsible for taking specific corrective action.
Environmental justice advocates and community stakeholders expressed disappointment with EPA’s position on when the agency accepts a complaint for investigation. According to the guidance, EPA is able to dismiss a Title VI complaint that is also involved in litigation to await the judicial outcome. It may also dismiss a complaint involved in an administrative appeal. In these circumstances, however, OCR waives the timeliness requirement if the complainant refiles the Title VI complaint after the judicial and appellate processes are exhausted. Nevertheless, environmental advocates still believe that their complaints may be barred if not filed within 180 days of the alleged discriminatory act. The Center on Race, Poverty, & the Environment (California Rural Legal Assistance Program) contended that EPA provided contradictory time periods for accepting a complaint. The center compared two statements in the Draft Revised Investigation Guidance, that indicate the agency would “investigate all administrative complaints concerning the conduct of a recipient of EPA’s financial assistance that satisfy the jurisdictional criteria in EPA’s implementing regulations,” while simultaneously stating that it would dismiss complaints that “‘satisfy the jurisdictional criteria in EPA’s implementing regulations’ if complainants are attempting to exhaust their administrative remedies before the recipient agency . . . or pursue their rights in court.”
Stakeholders were also concerned about when the guidance allows the 180-day time period to begin for filing a Title VI complaint. EPA’s implementing regulations require that the complaint be filed “within 180 calendar days of the alleged discriminatory acts, unless the OCR waives the time limit for good cause.” Furthermore, the guidance provides that “complaints alleging discriminatory effects resulting from a permit should be filed with EPA within 180 calendar days of issuance of that permit.” Despite these provisions, industry and community representatives disagreed on whether the 180 days was sufficient to address the alleged violation. For example, the National Petrochemical & Refiners Association urged the agency not to delay addressing adverse environmental impacts:
If the impacts identified in the complaint are in fact significant, adverse, disparate impacts on the community, delaying the process does not solve the problem; it only makes it worse. For this reason, it is very important that EPA’s 180 day time limit be fixed. Currently in the Guidance, EPA indicates that it may waive the 180 day limit “for good cause” or on a “case-by-case” basis. We urge the EPA to eliminate these potential delays in the process and provide certainty with the 180 day limit.
In contrast, the Sierra Club and the Galveston-Houston Association for Smog Prevention asserted that placing a time limit on the filing of a complaint of discrimination was inconsistent with the idea of civil rights enforcement. The organizations described the 180-day time limit as:
[being] inconsistent with Title VI of the 1964 Civil Rights Act where no such time line is required since several years may be necessary to establish the pattern of discriminatory environmental regulation by an agency and toxic polluter. EPA has chosen an arbitrary time requirement in order to potentially discourage certain older Title VI complaint actions where individuals may need considerable time to perform their own investigation and establish reasonable evidence as a basis that racial discrimination occurred.
The National Environmental Justice Advisory Council’s (NEJAC) Title VI Task Force provided another observation that complicates the stakeholders’ controversy over the appropriateness of the 180-day filing deadline for Title VI complaints. According to NEJAC, the Draft Revised Investigation Guidance advises stakeholders that the statute of limitations begins before a final and reviewable agency action has occurred, pursuant to EPA’s regulations. In effect, despite EPA’s implementing regulations and guidelines suggested in the Draft Revised Investigation Guidance relating to the 180-day filing deadline, environmental stakeholders perceive that this is an inappropriate time period for filing Title VI complaints with the agency.
In reference to EPA’s position that denial or revocation of a permit is not necessarily an appropriate remedy in a Title VI investigation, since it is unlikely that the permit in question is the sole cause of an adverse disparate impact, industry stakeholders largely concurred with EPA’s perspective. In contrast, the Lawyers’ Committee for Civil Rights Under Law and the NAACP Legal Defense & Educational Fund (Lawyers’ Committee/LDF) observed that Title VI requires recipient environmental agencies to consider all impacts of their permitting decisions that are adverse to a community, and not solely environmental considerations. The Lawyers’ Committee/LDF then cited the Civil Rights Restoration Act of 1988, which took precedence over a Supreme Court case that held that Title VI was only applicable to prohibiting discrimination in specific activities for which federal funding was reserved. It was noted that the act interpreted “program or activity” in Title VI to include “all of the operations” of departments, agencies, or other institutions “any part of which” receives federal funding. As a result of Title VI, EPA is required to terminate the federal funding of any facility that discriminates in any of its activities, except in employment cases.
Other environmental justice advocates maintained that EPA’s reluctance to suspend or revoke permits in violation of Title VI created problems for those who need to challenge the legitimacy of a permit proceeding or agency action. According to the Golden Gate University School of Law’s Environmental Law and Justice Clinic:
The Guidance presumes that the disputed permit will be issued—indeed there is no stay provision at all. This puts complainant groups at risk from ongoing project impacts and greatly undermines their ability to effectively negotiate with recipient agencies. Complainants must bear the burdens stemming from implementation of permits while their complaints are pending, and indeed languishing for years, at EPA (often while simultaneously fighting to ensure that the permits are complied with).
EPA does not dispute that neither its Title VI regulations nor the guidance grants the agency the authority to adopt such a provision. One explanation for EPA’s reluctance to suspend or revoke a permit that violates Title VI originates from the agency’s policy of providing its funding recipients opportunities to voluntarily improve their Title VI programs. The agency’s reluctance also stems from the lingering tension between EPA’s role as environmental regulator and its concurrent duty as an enforcer of Title VI.
Finally, community advocates and environmental justice organizations contended that EPA’s guidance does not provide stakeholders with clear authority on critical questions, such as how and when a Title VI complaint can be filed, and the circumstances for suspending or revoking permits that violate Title VI. It is essential that community stakeholders, state and local recipients, and industry representatives are aware of the areas of EPA’s authority, as well as understand how the agency interprets terms such as “adverse disparate impact,” “affected population,” and “comparison populations” that are critical to an administrative Title VI analysis.
Investigations Limited by “Authority to Consider” Provision. Environmental justice advocates maintained that the guidance does not provide a comprehensive safeguard against adverse disparate impact. When the Lawyers’ Committee for Civil Rights Under Law and the NAACP Legal Defense Fund examined the Draft Revised Investigation Guidance, they concluded that EPA unnecessarily limits its investigations to pollutants and impacts “within the recipient’s authority to consider,” as defined under applicable state laws and regulations. According to these two civil rights organizations, the “authority to consider” provision allows states to narrowly define their Title VI duties by passing laws, or being shielded by existing state laws and regulations, that restrict the authority of their permitting agencies to examining a limited number or type of pollutants and adverse impacts. Some states have laws allowing permitting authorities to consider socioeconomic impact, while other jurisdictions restrict their analyses to environmental or health impact. For example, if state laws prohibit consideration of an adverse social, economic, or cultural impact resulting from a permitting decision, no Title VI violation could be established based on these grounds because there is no “authority to consider” these issues. This approach by the states, it is argued, violates the supremacy clause of the U.S. Constitution and federal civil rights laws.
EPA, however, has not yet encountered a situation where a state has intentionally limited its authority to consider the types of pollutants and impacts to make Title VI adverse disparate impact claims more difficult to establish. The agency does not dispute that there is variance between states on what pollutants and impacts they have “authority to consider.”
Lastly, the Lawyers’ Committee/LDF contend that the “authority to consider” rule improperly allows EPA’s Office of Civil Rights to interpret state laws in order to determine what environmental impacts are within the jurisdiction’s authority, when the agency does not have the expertise or power to do so.
Guidance Does Not Apply to EPA’s Activities and Programs. According to the Draft Revised Investigation Guidance, Title VI is not applicable to EPA’s actions and permitting activities, since it only applies to the programs and activities of recipients of federal financial assistance, not to federal agencies. The statute clearly excludes federal agencies from its definition of “program or activity.” Because of this disclaimer, community residents must rely on EPA’s commitment to monitor its own activities and permitting programs to ensure that they do not violate Title VI. Although the agency acknowledged that Title VI is not applicable to federal agencies, it maintained that it continues to take significant strides in ensuring that its programs avoid disproportionately high and adverse impacts on minority and low-income communities, pursuant to Executive Order 12,898. Despite this assurance, the Arizona Center for Law in the Public Interest expressed concern in its comments to the agency on the guidance that EPA may have excessive discretion to not comply with nondiscriminatory practices. The center also observed that the authority of Title VI is lessened when EPA is statutorily excluded from adhering to this civil rights law while other stakeholders must uphold its concepts of nondiscrimination.
Stakeholders Are Concerned That EPA Allows Recipients to Submit Their Own Disparate Impact Analyses in Lieu of Conducting an Independent Examination. To provide state agencies with an incentive for creating active Title VI programs, EPA assigns “due weight” to funding recipients’ adverse disparate impact investigations. Because the Civil Rights Act of 1964 mandates that EPA cannot delegate its Title VI enforcement duty, OCR cannot entirely rely on a recipient’s contention that Title VI has not been violated.
In some situations, however, the guidance allows EPA to consider the recipient’s assessment that an adverse disparate impact does not exist. OCR provides “due weight” to these studies when, at a minimum, they reflect accepted scientific methods. Although OCR may consider a recipient’s evaluation of its compliance with Title VI, this does not preclude the agency from independently investigating the matter or considering other relevant information.
Environmental justice stakeholders do not favor EPA’s “due weight” provision. Some groups allege that EPA relies too heavily on recipient assessments and that, as a result, state agencies use the “due weight” provision to shield themselves from potential Title VI complaints. Although the guidance allows complainants to also submit supporting data and analyses to establish that a disparate impact exists, few have access to complex data and methodologies to do so. As a result, both recipients and complainants should have access to the resources to conduct their own analyses. Moreover, the Lawyers’ Committee/LDF encouraged OCR to conduct an independent analysis in order to thoroughly review the assertions of both the complainants and the recipients.
EPA’s Title VI Complaint Program
The issue of whether existing Title VI regulations and corresponding agency policies are effective enforcement tools in the environmental justice context is an essential question. In February 2002, the U.S. Commission on Civil Rights heard testimony from representatives of the Environmental Protection Agency, as well as three other federal agencies, who discussed the implementation of Title VI and Executive Order 12,898. The remainder of this chapter will review each of the four agencies’ Title VI programs, with emphasis on the number of complaints, the length of time from filing a complaint to disposition, the number of complaints dismissed and the reasons, when and how agencies share jurisdiction over complaints, and how complainants and permitting authorities are informed of decisions relating to a complaint.
Status of EPA Title VI Complaint Backlog
Despite acknowledged obligations to address Title VI complaints in a timely manner, EPA accumulated a backlog of Title VI complaints from 1998 to 2001. This accumulation of complaints was attributed to the lack of staff resources, as well as the presence of a 1998 congressional restriction prohibiting the use of EPA’s appropriations to investigate and resolve Title VI complaints until the agency issued final guidance. EPA’s appropriations bill for FY 2002, however, did not include this restriction. Instead, the Bush administration’s proposed FY 2002 budget for EPA allocated additional funds to address pending Title VI complaints.
Former Administrator Christine Todd Whitman responded to this opportunity to address the complaint backlog problem by forming a Title VI Task Force in May 2001. Administrator Whitman directed EPA’s Region 5 counsel, Gail Ginsberg, as well as the agency’s Office for Enforcement and Compliance Assistance and the Office of Civil Rights, to lead the work of the task force in eliminating the accumulated Title VI complaints.
According to Ms. Ginsberg, when the task force was created in 2001, there were 66 open Title VI complaints. Twenty-one of the complaints were previously accepted for investigation, and 45 complaints were under review to determine whether they should be accepted for investigation, rejected, or referred to another agency for action.
As of January 31, 2002, the backlog had been reduced from 66 to 42 complaints. Subsequently, by the time of the Commission’s hearing on February 8, 2002, the case backlog was reduced to 41 complaints. Of these 41 cases, 34 were then identified as being acceptable for investigation. The backlog caseload was then seven complaints. Ms. Ginsberg explained that five of these cases were put in a suspense status due to secondary litigation that could affect the Title VI complaints. As a result, two of EPA’s Title VI complaints remain backlogged. These cases are being reviewed pending the agency’s receipt of clarifying information. One of these complaints is St. Francis Prayer Center v. Michigan Department of Environmental Quality (Genesee Power Station), which was originally filed with EPA in 1992. As recently as 2001, the Genesee Power Station facility was still operational and reportedly discharging pollutants into a predominately African American community.
Although no decisions had been made on the merits of the backlogged complaints at the time of the Commission’s February 2002 hearing, EPA was investigating most of the accepted complaints and had informed complainants whether or not their complaint was accepted for investigation. In August 2003, EPA reported that it entered into an agreement in May 2003 with the Texas Commission on Environmental Quality that resolved allegations from six Title VI complaints. According to EPA, the Title VI Task Force will not eliminate the accumulated complaints until some time in early 2004.
Despite progress in eliminating the complaint backlog, some concerns remain about EPA’s handling of Title VI complaints. Luke Cole, director of the Center on Race, Poverty, & the Environment, voiced concerns that the task force will “find the easy way to get rid of the complaints is just to dismiss them all.” As an example, Mr. Cole referred to the agency’s Select Steel complaint that involved environmental permits issued by the Michigan Department of Environmental Quality. EPA found that the proposed steel mill’s emissions were within existing federal pollution limits and, therefore, never ruled on the merits of the disparate impact claim. Sheila Foster, a professor of law at Rutgers University, observed that “[e]ven though the agency [EPA] investigated the complaint, it did it in a way that allowed them to not even look at the disparate impact.” Rejecting complaints for technical issues will result in better case management, but will not address the human health and environmental concerns of minority and poor communities.
Number of Title VI Complaints at EPA
Pursuant to its regulations, OCR is required to review a Title VI complaint and either accept, reject, or refer it to the appropriate federal agency for further action within 20 calendar days of acknowledgment of the complaint. Of 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 regulation. None of the 13 complaints processed within the 20-day window were accepted for investigation. All were rejected because EPA assessed that they did not meet the agency’s regulatory requirements.
By February 2002, there were several cases that had been pending for more than three years in which EPA had not made its 20-day decision timeline. For example, a permitting-related Title VI complaint was filed in August 1995 on behalf of migrant farm workers who resided in a labor camp one block from a toxic waste processing facility in Salinas, California. The complaint alleged that the complainants were exposed to hazardous substances from the facility and identified the alleged recipient as the California Environmental Protection Agency, Department of Toxic Substances Control, and the toxic waste facility as the Pure-Etch Company. EPA did not decide to accept the case for investigation until July 2001, six years after it was filed with the agency. In April 2003, the agency partially dismissed the complaint.
There is yet another example of EPA’s inability to meet its own regulatory deadlines. A permitting-related complaint was filed in December 1999 by the Columbia Deepening Opposition Group of Astoria [Oregon] (CDOG) against the U.S. Army Corps of Engineers, the Environmental Protection Agency, the Oregon Departments of Environmental Quality and Fish and Wildlife, the Oregon Division of State Lands, and the Washington Departments of Ecology and Natural Resources. This complaint, still pending at the time of the Commission’s February 2002 hearing, was filed on behalf of minority and low-income populations living in the areas adversely affected by the Columbia and Lower Willamette River Federal Navigation Channel facility. EPA did not decide whether to allow the complaint to remain open for investigation until January 2002. A decision that should have been reached within 20 days was not made for more than two years.
From 1993 to February 2002, OCR received an estimated 124 Title VI complaints. Of these complaints, 83 alleged adverse disparate impact for environmental permitting or discrimination in the permitting process. An updated review of the number of Title VI complaints filed with EPA, as of June 20, 2003, indicated that the agency received a total of 136 complaints. As shown in Table 1, most complaints were not accepted for investigation, with 75 of the total 136 complaints rejected.
Table 1: Title VI Complaints Filed with EPA (as of June 20, 2003)
Status of complaint
Number of complaints
Referred to another federal agency
Source: U.S. Environmental Protection Agency, “Title VI Complaints Filed with EPA,” June 20, 2003.
Table 2 shows EPA’s Title VI permitting-related complaints as of June 2003. Eighty-six of a total 136 Title VI complaints focused on permitting as the primary activity. EPA rejected 39, or nearly half, of its permitting complaints. EPA only accepted 13 permitting complaints for investigation and dismissed 20 complaints.
TABLE 2: Status and Number of Title VI Permitting-Related Complaints Filed with EPA (as of June 20, 2003)
Status of complaint
Number of complaints
Referral to another federal agency
Source: U.S. Environmental Protection Agency, “Title VI Complaints Filed with EPA,” June 20, 2003.
A closer examination of the 136 Title VI complaints filed with EPA before, during, and after the time of the agency’s appropriations bill containing a rider provision prohibiting the agency from investigating and resolving Title VI complaints starting from the bill’s enactment revealed that 64 complaints, or nearly half, were held in abeyance and backlogged by this provision. These complaints were filed with EPA on October 21, 1998, through 2001. Of these 64 complaints, seven were later suspended, while 57 complaints had other dispositions (e.g., rejected, accepted, partially dismissed, informally resolved, referred to another agency, or dismissed). Thus, the data demonstrates that the presence of the rider provision had a significant impact on the number of Title VI complaints that EPA could have investigated and resolved during the time the agency’s complaints remained backlogged.
EPA’s Title VI Complaint Process, Jurisdictional Responsibilities, and Appeal Procedure
A complainant may file a Title VI complaint with EPA when disparate impact discrimination is believed to have occurred. The public is provided information on the procedure for filing Title VI complaints through the agency’s Web site or by contacting the Office of Civil Rights by mail or telephone.
In reviewing Title VI complaints for jurisdictional sufficiency, EPA evaluates each complaint for compliance with four criteria:
Whether the complaint describes the acts that allegedly violate EPA’s Title VI regulations.
Whether the complaint identifies an EPA funding recipient as the respondent.
Whether the complaint is in writing.
Whether the complaint is filed within 180 calendar days of an alleged discriminatory activity.
If any of the criteria are absent, EPA may contact the complainant to request supplemental information or clarification. This contact can be telephonic, electronic, written, or in person. EPA may communicate with a complainant several times in an attempt to obtain sufficient information to enable the agency to accept a complaint for investigation. EPA may also use its own internal resources to ascertain whether the complaint involves a recipient of federal financial assistance. According to EPA, a complaint is not rejected on jurisdictional grounds until all efforts to identify information to satisfy the four criteria have been exhausted. EPA maintains responsibility for investigating and resolving Title VI complaints that meet threshold requirements, such as standing, timeliness, and ripeness.
The agency maintains exclusive jurisdiction over Title VI complaints when permit recipients obtained federal funding solely from EPA or the complaints are clearly within the agency’s enforcement authority. When EPA maintains its jurisdiction over a Title VI complaint, the agency will inform complainants of this development via the telephone or EPA’s Web site. Furthermore, EPA does not necessarily maintain exclusive jurisdiction over a Title VI complaint if the recipient received federal funding from other agencies or if the recipient is also within the authority of other federal agencies. In these scenarios, the agencies may proceed with coordinated investigations or independently investigate.
In those instances where another federal agency has jurisdiction over the subject of a Title VI complaint that was originally filed with EPA, OCR will refer the complaint to that agency for investigation and resolution. The agency will also send written confirmation to the complainant that the Title VI complaint has been referred for investigation to another federal agency. After referral, EPA maintains some involvement in the investigation by coordinating its efforts with the other federal agency and determining whether it or the other agency will become the lead agency that investigates and resolves the complaint. Moreover, when it is clear from the subject of the complaint that the permitting authority obtained federal financial assistance from the receiving agency, instead of EPA, it is likely that the receiving agency would be designated as the lead agency. If the receiving agency becomes the lead agency, its actions have the same effect as any measures that would have been taken by EPA.
When a Title VI complaint contains issues that may affect federal agencies other than EPA, EPA will share the responsibility with that agency for investigating and resolving the complaint. The Department of Justice also instructs that when numerous recipients receive funding for similar purposes from two or more federal agencies, or when these agencies jointly administer federal assistance for a given class of recipients, the federal agencies must cooperatively ensure compliance with Title VI. EPA will inform a complainant in this circumstance, in writing, that the complaint is being jointly investigated and resolved with another federal agency.
EPA does not have a formal appeal process. Nevertheless, OCR may reconsider a complaint, and will also notify a complainant in writing of the status of his or her complaint.
EPA’s Funding and Staffing Resources for Addressing Title VI Complaints
In order to appropriately investigate and resolve the volume of Title VI complaints filed or referred to EPA, the agency’s staffing and budgetary resources are critical factors in program success and effectiveness. During testimony in February 2002, Linda Fisher, then deputy administrator of EPA, stated that the agency’s overall budget for FY 2002 was approximately $7.8 billion. In FY 2003, the overall budget was $8.1 billion and EPA requested $7.6 billion for FY 2004. At the time of the hearings in FY 2002, OCR’s budget was $6.78 million. In February 2002, OCR had 30.5 full-time-equivalent employees (FTEs) with two staff members detailed to the Title VI Task Force. If fully staffed, however, OCR would have 42.5 FTEs.
OCR reported that it annually evaluates its resources and program needs. The office has been “held harmless” for the effects of its decreased staffing levels and resources since 1999, due to a number of budget reductions. OCR has compensated for this reduction by employing resources from other program offices in the agency and using employment detail opportunities for additional staff members with relevant experience.
When the Title VI Task Force became operational in July 2001, there were concerns that there would be insufficient staff to conduct Title VI complaint investigations. The task force is currently composed of 13 full-time personnel from EPA’s offices of enforcement, general counsel, regional counsel, solid waste, water, and civil rights. Two investigators assist the task force on an as-needed basis. The task force may also request technical, policy, and legal assistance from any of EPA’s offices. In FY 2001 and 2002, the task force was allocated $1.5 million to retain contract assistance for its complaint investigations.
In 2002, EPA believed that it had sufficient funding and staffing levels to execute Executive Order 12,898, to the extent it was implicated by Title VI. Primary responsibility for implementing and enforcing Title VI rests with OCR. In spite of budget reductions, according to EPA, OCR has adequate means to address Title VI matters, including new complaints and compliance reviews, by using resources from other parts of the agency. According to EPA in 2002, the Title VI Task Force, which is processing older complaints, has sufficient funding and staffing to handle the backlog.
Overview of Selected Federal Agencies’ Title VI Complaint Programs
In February 2002, representatives from the Departments of Transportation, Interior, and Housing and Urban Development testified before the U.S. Commission on Civil Rights regarding their agencies’ Title VI complaint programs. The following section details these agencies’ Title VI programs, the number and types of Title VI complaints received, the disposition of complaints, and their staffing and funding resources for Title VI enforcement purposes. Unlike EPA, none of the other agencies have formal guidance for their funding recipients or on conducting Title VI investigations. Furthermore, none of the agencies reviewed by the Commission, including EPA, reported having regular and comprehensive Title VI compliance reviews executed through formal compliance review programs. Routine and comprehensive reviews of the recipients’ programs, before complaints are filed, would likely result in fewer Title VI complaints and swifter enforcement action when complaints are filed.
The Department of Transportation
Number of Title VI Complaints at DOT
The Department of Transportation (DOT) receives relatively few Title VI complaints. DOT attributes the lack of complaints to its outreach efforts and requirements for early community involvement in transportation planning. This, however, may not account for the low number of reported complaints. The number of complaints filed may also be a function of affected communities being unaware of how and when to participate in the decision-making process, lack of access to technical and scientific information, cultural and language barriers, and insufficient access to clear guidance on how to file Title VI complaints. DOT’s public outreach and participation efforts and initiatives, as well as those of the other agencies reviewed by the Commission, are discussed in Chapter 5 of this report.
In response to the Commission’s inquiry regarding the number of Title VI complaints received by the Department of Transportation from 1995 to 2001, the U.S. Coast Guard reported no complaints and the Federal Aviation Administration’s (FAA) Office of Civil Rights responded that it received four complaints during this time period. Table 3 provides greater detail on the disposition of the FAA’s complaints.
Table 3: DOT/FAA—Title VI Complaints, 1995–2001 (as of August 2003)
Origin of complaint
Date filed/received by agency
Nature of complaint
Disposition of complaint
Alleged discrimination caused by approval of expanded airport services/lack of environmental assessment.
Complaint was closed in September 1999. An investigation revealed no discrimination (but recommended future mechanisms for non-English-speaking residents to receive information on public comment periods for noise remedy programs).
Alleged racial discrimination by the airport (causing noise pollution, and violating easements and federal aviation regulations).
Complaint was closed in October 2001. An investigation found that neither the city of Charlotte nor the Charlotte/Douglas International Airport discriminated against the complainants because of race.
New York, NY
Alleged discrimination based on race—location of an extended rail system through predominately African American neighborhoods that was originally supposed to go through a nonminority neighborhood. Complaint alleged the creation of negative environmental impacts in African American neighborhoods.
On October 12, 2000, the U.S. Court of Appeals for the Second Circuit found that the FAA’s 1999 Record of Decision for the environmental review was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law and denied the petition for review. The complaint is currently under legal review with the FAA’s Office of the Chief Counsel.
Alleged discrimination based on race and ethnicity; disproportionate and adverse impact on Latino community (more noise pollution, traffic, secondary environmental contamination).
In April 2003, the FAA’s Southwest Region sent a letter to the city of McKinney outlining seven allegations for investigation (public involvement, disproportionate environmental hazards, disproportionate social and economic effects, noise pollution, environmental justice, lack of notice of public meetings). On May 30, 2003, the city of McKinney responded to the FAA’s inquiry. The FAA Southwest Region is currently reviewing the response. Complaint is pending.
Sources: DOT/FAA, Answer to Interrogatory Question 5, April 2002; Michael Freilich, national external program manager, Federal Aviation Administration, U.S. Department of Transportation, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 19, 2003, p. 2.
Of these complaints, the New York (DOT #2000-0220) and the city of McKinney (DOT #2001-0213) cases are currently pending. The New York complaint has been judicially reviewed and is under administrative review by the FAA’s Office of the Chief Counsel. The FAA issued a ruling approving the application from the Port Authority of New York and New Jersey to use passenger fees to construct a light rail system connecting the airport with transit stations, and determined that the proposal would not significantly affect the environment. The complaint has been pending for more than three years and alleges that locating the light rail system through an African American neighborhood is racially discriminatory and will have an adverse environmental impact.
In October 2000, the U.S. Court of Appeals for the Second Circuit denied the petitioners’ request for judicial review of the FAA’s Record of Decision to approve the proposed plan from the Port Authority of New York and New Jersey. The petitioners maintained that the FAA’s Record of Decision should be vacated since important information was omitted from the final environmental impact statement, which allegedly violated the National Environmental Policy Act (NEPA). Ultimately, the Second Circuit found that the final environmental impact statement adequately described the possible environmental consequences of the light rail system project and that the FAA’s final ruling approving the project was reasonable. Accordingly, because the Second Circuit effectively approved the FAA’s Record of Decision, it is anticipated that OCR will similarly defer to the Record of Decision and dismiss the complaint.
The complaint in McKinney, Texas, has also been pending for more than three years. The FAA believes that the complaint may eventually become moot. The affected Latino community alleges that an adverse disparate environmental impact will result from a tentatively planned second runway of a municipal airport. The community specifically alleges that the proposed runway would create noise, traffic, and secondary contamination/pollution issues. Although the second runway is currently included on the airport layout plan, the FAA stated that the Texas Department of Transportation is not likely to fund this plan. The two closed complaints, on average, took slightly more than two years to resolve.
DOT’s Title VI Complaint Process, Jurisdictional Responsibilities, and Appeal Procedure
According to Marc Brenman, senior policy advisor for civil rights in DOT’s Office of the Secretary, the agency receives Title VI complaints from the Department of Justice (DOJ), directly from the public, and by referral from other federal agencies. Complainants can file complaints with the department’s Office of Civil Rights, an operating administration’s office of civil rights, or with DOJ. If members of the public participate in DOT’s community outreach activities, consult agency brochures, or access DOT’s Web site, they obtain information on how and where to file Title VI complaints. Moreover, when potential complainants contact DOT directly, they are informed about the procedures for filing formal complaints with DOT’s Office of Civil Rights or with the DOT operating administration that is involved in the particular allegation. Potential complainants are informed that if they file their complaints with DOT’s OCR, their complaint will be referred to the appropriate DOT operating administration for investigation, if it satisfies Title VI regulatory criteria.
Complaints must be filed within 180 days after the date of the alleged Title VI violation unless an extension is granted by the Secretary of the Department of Transportation. DOT’s Office of Civil Rights forwards complaints accepted for investigation to the appropriate agency division or administration, such as the Federal Transit Administration or the Federal Highway Administration. Like several other agencies, DOT does not specifically establish how soon after the filing of a complaint an investigation must be undertaken. The agency’s regulations make reference to a “prompt” investigation of Title VI noncompliance allegations.
As a result of the investigation, if a violation of Title VI is found, DOT contacts the recipient and attempts to obtain voluntary compliance. DOT’s regulations, however, do not include a provision for notifying the complainant of the violation and the attempts to obtain voluntary compliance with the recipient. There is no timeline established in DOT’s regulations for how long the agency has to conclude an investigation.
If the complaint concerns more than one mode of transportation, the Office of Civil Rights will meet with all operating administrations potentially involved in the complaint to coordinate the details of the Title VI investigation. Generally, a multidisciplinary team of civil rights specialists, engineers, planners, and attorneys is used to resolve complex complaints. If a noncompliance finding is made and voluntary compliance attempts are unsuccessful, DOT follows its Title VI regulatory procedures. These procedures include a notice of opportunity for a hearing to the recipient, and either an administrative enforcement hearing or referral to the Department of Justice for litigation. After the regulatory procedures are completed, DOT can consider terminating or suspending a recipient’s federal financial assistance. DOT has the authority to make the decision to refer an unsettled Title VI violation case to the Department of Justice for litigation or to an administrative enforcement hearing.
The Department of Transportation maintains exclusive jurisdiction over Title VI complaints that involve permitting agencies that have received financial assistance from DOT or when DOT has sole enforcement responsibility. In these circumstances, complaints must also satisfy threshold requirements of recipient status, standing, statute of limitations, and ripeness.
When a complaint involves multiple issues that require Title VI enforcement from several federal agencies, DOT shares the responsibility for investigating and resolving the complaint with those agencies, particularly when matters of public safety are involved. For example, DOT frequently coordinates with HUD to review Title VI complaints relating to sidewalks and streets. Furthermore, in instances where the complaint involves more than one federal agency, the Department of Justice often coordinates how the Title VI investigation will proceed.
Lastly, complainants do not have any appeal rights in DOT’s Title VI complaint procedure, since the agency does not have a formal appeal process. DOT’s Office of Civil Rights, however, has encouraged operating administrations to implement another level of review within their components, such as through their chief counsels. No specific criteria exist to determine when an additional level of review is warranted, since DOT’s Title VI regulations do not include a provision for appeals. Although DOT’s OCR attempted to institute an appeal mechanism several years ago, OCR found it to be difficult and time consuming. As a result, DOT may reconsider Title VI decisions on a case-by-case basis. DOT’s Office of Civil Rights reports that it rarely receives requests for reconsideration. Once a decision on a complaint is reached at the completion of the investigation, DOT notifies complainants in writing of the status and disposition of their complaints.
DOT’s Funding and Staffing Resources for Addressing Title VI Complaints
The Federal Aviation Administration, the Federal Highway Administration, and the Federal Transit Administration have varying budget requests that have been affected by recent national security concerns. The 2003 budget request for the Federal Aviation Administration was $14 billion, 1.6 percent lower than FAA’s budget in 2002. The Federal Highway Administration’s budget request for 2003 was $24.1 billion, which was $9.2 billion, or 28 percent, below the 2002 enacted budget. The Federal Transit’s proposed budget for 2003 was $7.2 billion, 5 percent above 2002. The agency attributed this increase to the need to “promote mobility and access, address . . . critical security vulnerabilities, and further the President’s Management Agenda.”
For the Federal Highway Administration (FHWA), the primary responsibility for environmental justice implementation lies with the Office of Human Environment, which does not investigate or become involved with Title VI complaints. FHWA’s Title VI implementation responsibility is designated for its Office of Civil Rights, with 3.5 full-time-equivalent employees. This office has been allocated an estimated $1 million for an Environmental Justice Research Focus Area since 2000. Marc Brenman, senior policy advisor for civil rights in DOT’s Office of the Secretary, maintained that DOT’s Office of Civil Rights’ staffing and budgetary resources are currently sufficient.
The Department of the Interior
Number of Title VI Complaints at DOI
The Department of the Interior (DOI) designates bureau and office equal opportunity officers as the responsible officials for investigating and processing civil rights complaints. As of August 2003, DOI had two open Title VI complaints that raised environmental justice issues. In both cases, tribes are the complainants (see Table 4).
The complaints, both filed in 1997, remain open six years later. The California complaint alleges a disproportionate impact on Native American residents resulting from radioactive waste. The complaint requires an environmental impact study from DOI. The Department of Energy must also investigate the allegations in the complaint, since the recipient in question received federal funding from that agency.
The New Mexico complaint also alleges an adverse disproportionate impact on a Native American community based on a proposed highway extension. The complaint requires further investigations by DOT’s Federal Highway Administration’s Office of Civil Rights and other state agencies. In effect, although DOI receives few Title VI complaints, coordinating and completing investigations with affected federal and local agencies appears to impede the agency’s ability to address adverse environmental impacts in communities and dispose of complaints in a timely manner. As a result, in these instances, the likelihood that Native American communities are disproportionately exposed to environmental and other harm continues until the dispositions of the cases are completed.
TABLE 4: DOI—Number and Status of Title VI Complaints, 1995–2001 (as of August 2003)
Origin of complaint
Date filed/received by agency
Nature of complaint
Disposition of complaint
San Bernardino County, CA
Alleged disproportionate impact of proposed low-level radioactive waste depository would cause cultural and spiritual harm to the land and physical harm to Native American residents.
Remains open—Department of Energy is conducting an investigation (since it provided federal funds to the respondent). DOI to conduct an environmental impact study.
Alleged discrimination caused by proposed highway extension through area of cultural and spiritual significance to Native American community.
Remains open—the National Park Service has completed an investigation. Federal Highway Administration’s OCR and state agencies are currently investigating.
Sources: Department of the Interior, Answer to Interrogatory Question 3, May 1, 2002; Department of the Interior, Answer to Second Set of Interrogatories, Question 5, Aug. 20, 2003.
DOI’s Title VI Complaint Process, Jurisdictional Responsibilities, and Appeal Procedure
The Department of the Interior requires individuals who believe they have been discriminated against based on their race, color, or national origin to file a written complaint with the Secretary of DOI no later than 180 days from the date the alleged discrimination occurred. The investigation and resolution of Title VI complaints are accomplished through DOI’s departmental Office for Equal Opportunity. Additionally, the DOI bureau that provided federal financial assistance to the recipient is responsible for ensuring compliance with Title VI in programs and activities in which it provided the federal funding. In complex Title VI cases, DOI’s Office for Equal Opportunity will assume jurisdiction over cases that would routinely be handled by bureaus and offices of the agency.
DOI also requires its funding recipients to maintain Title VI compliance reports of their activities and submit them to the Secretary. DOI regulations neither provide guidance to recipients on how often compliance reports should be prepared nor do they specify under what circumstances these reports will be used to determine whether recipients comply with Title VI.
The Department of the Interior informs the public how and where to file Title VI complaints through a national public notification program and educational outreach pamphlets, its Web site, and bilingual civil rights posters in English and Spanish in the funding recipients’ areas of operation. Since the United States is becoming increasingly diverse linguistically, and DOI works extensively with Native American populations, the Commission notes that DOI did not report providing information in languages other than English and Spanish. According to DOI, the sources mentioned above explain that the recipient receives federal funding from DOI, and provide information on DOI’s nondiscrimination policy, as well as the procedure for filing Title VI complaints.
If a complaint reveals that discriminatory activity may have taken place, DOI conducts a preliminary investigation of the allegation, as well as the circumstances of the alleged noncompliance and other factors to determine whether a violation of Title VI occurred. DOI also determines whether it has jurisdiction over the Title VI complaint by determining whether the complainant has standing or a DOI funding recipient is involved, and examining other jurisdictional issues. If the complaint satisfies the relevant jurisdictional elements, it is accepted for investigation.
As with other agencies, DOI may not always be the sole source of federal funding. In these cases, DOI coordinates the investigation of the complaint with the other federal agencies providing federal assistance to the alleged violator. DOI accepts lead responsibility for investigating a matter of joint shared jurisdiction only if the agency provided the greatest amount of federal financial assistance or the complaint involves a DOI program area in which the agency has a mission-related responsibility, such as fishing and wildlife management, outdoor recreation, or public lands. In instances where it is determined that the funding recipient named in the complaint did not receive federal funding from DOI, the agency refers the complaint to the appropriate federal agency for resolution. When DOI refers a complaint to another federal agency due to lack of jurisdiction, DOI closes the complaint and should inform the parties involved in the complaint.
Where DOI retains a complaint, and accepts it for investigation, and then determines that the funding recipient violated the nondiscrimination provisions of Title VI, DOI informs the recipient of its noncompliance decision in writing. The agency then uses informal means to bring the funding recipient into compliance with Title VI. If the noncompliance with Title VI cannot be corrected informally, however, DOI may suspend or terminate the recipient’s federal financial assistance. Once a complaint has been resolved by DOI, the affected parties are not afforded appeal rights through Title VI.
DOI’s Funding and Staffing Resources for Addressing Title VI Complaints
DOI’s Office of Equal Opportunity (OEO) is primarily responsible for implementing and enforcing Title VI in the agency’s federally assisted programs and activities. In a recent Commission report, it was noted that OEO experienced an increase in funding between FY 1998 and 2002. OEO’s average annual funding was $1.3 million from FY 1996 through the FY 2002 budget request. However, funding for OEO is contained in the departmental management portion of DOI’s budget—which indicates that funding is not earmarked for OEO’s activities in 2003. Additionally, OEO only has five civil rights program staff members, which includes four assigned to individual bureaus. OEO’s staff members are reportedly overburdened, despite being periodically assisted by other staff temporarily detailed to their office for Title VI activities.
The Department of Housing and Urban Development
Number of Title VI Complaints at HUD
The Department of Housing and Urban Development had four Title VI complaints in August 2003, two of which remain open. These four complaints originated in Mississippi, California, Texas, and Louisiana and, with the exception of the Louisiana complaint, HUD’s Title VI complaints required several years to resolve.
The two open complaints, based on activity in Mississippi and Texas, were filed with HUD in 1997 and 1999, respectively. The Mississippi matter has been pending for approximately six years, while the Texas complaint has been pending for approximately four years. The two closed HUD complaints, from California and Louisiana, closed in 2001. The 1997 California complaint contested a permit to expand a landfill affecting a Latino community. This complaint was closed when EPA and HUD determined that they both lacked jurisdiction and the complainants reached an agreement with Los Angeles County. Before being dismissed, this complaint had been pending for almost four years.
The August 2000 Louisiana complaint involved allegations that HUD funded the construction of public housing on a sinking landfill in an African American community. HUD ultimately found that no HUD funds were involved, and the matter closed in March 2001. A summary of the reported HUD Title VI complaints is found below in Table 5.
TABLE 5: HUD—Number and Status of Title VI Complaints (as of August 2003)
Origin of complaint
Date filed/received by agency
Nature of complaint
Disposition of complaint
1997 (month/date not available)
December 4, 1997
Alleged discrimination caused by permit to expand landfill, and failure to enforce landfill permit violations, resulting in a disproportionate impact on Latino residents.
HUD and EPA investigated the complaint. EPA concluded that it lacked jurisdiction and did not investigate further. HUD’s Fair Housing and Equal Opportunity’s San Francisco office also closed the investigation for lack of jurisdiction. Private agreement reached between the parties and Los Angeles County. Case closed on March 5, 2001.
San Antonio, TX
April 30, 1999
August 28, 2000
Alleged discrimination due to inappropriate use of HUD funds for affordable housing, and construction of public housing on a sinking landfill, which caused disproportionate impact on African American residents.
HUD issued letters of compliance on March 12, 2001, since no HUD funds were used in construction of public housing. Lake Charles Housing Authority reinforced foundation of public housing.
Sources: Department of Housing and Urban Development, Response to Interrogatory Question 1; Carole W. Wilson, associate general counsel, Office of Litigation, U.S. Department of Housing and Urban Development, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 15, 2003.
HUD’s Title VI Complaint Process, Jurisdictional Responsibilities, and Appeal Procedure
HUD provides information on filing a Title VI complaint through its outreach programs. Specifically, HUD’s Office of Fair Housing and Equal Opportunity Web site provides some information about Title VI and the agency’s regulations relating to filing complaints. The Office of Fair Housing and Economic Opportunity is the sole operating administration responsible for investigating and resolving HUD’s Title VI complaints.
When FHEO receives a Title VI complaint it convenes compliance review teams to conduct an on-site review and investigate the allegations. The compliance review teams consist of staff members from FHEO and HUD program areas who provide technical expertise relating to the operation of the programs allegedly involved in the complaint. Additionally, because Title VI complaints are often processed under the Fair Housing Act when the allegations involve housing discrimination, HUD will also investigate and process these complaints through that statute. Generally, the Title VI complaints that are received by HUD’s Office of Fair Housing and Equal Opportunity are jointly filed with other federal agencies, such as EPA and the Department of Defense.
Title VI discrimination complaints must be filed with HUD no later than 180 days from the date of the alleged discriminatory activity, unless HUD grants an extension for filing the complaint. HUD’s regulations provide that it will initiate an investigation to review the recipient’s policies and practices, the circumstances in which the alleged noncompliance of Title VI occurred, and other applicable factors. HUD does not create a specific time by which its investigations should be initiated or completed. If a violation is found, HUD informs the recipient and attempts to resolve the matter through informal methods. The regulation governing notification to the recipient of a violation does not speak to notifying the complainant. If an informal resolution is not feasible, the department may take steps to ensure compliance by suspension, termination, or refusal to grant funding or by referring the matter to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce rights under Title VI.
In order to revoke or suspend funding, the agency must complete a rather cumbersome process that includes reporting to Congress. The process, including the congressional provision, may act as a deterrent to using revoking funds as an enforcement or compliance tool. For termination or revocation of funding the following must occur:
HUD must advise the funding recipient of its noncompliance with Title VI.
HUD must determine that compliance cannot be obtained voluntarily.
HUD’s Secretary must approve the action and file a full report with the appropriate congressional committee explaining the reasons for the proposed revocation or termination.
Information provided by HUD does not report that the agency has ever withheld or revoked funding for Title VI violations. If HUD, through its investigation, finds that no action is warranted or no violation occurred, HUD notifies both the complainant and its funding recipient in writing.
There are instances when HUD refers a complaint to other federal agencies to either assume sole responsibility for the Title VI complaint or to share that responsibility with HUD. As discussed earlier, referrals are also made to other federal agencies when these agencies provided the recipient with federal financial assistance or where HUD has no jurisdiction over the matter. DOJ also plays an essential role in enforcing HUD’s Title VI complaints.
HUD also refers a Title VI complaint to DOJ in any of the following circumstances: (1) the complaint involves facts that are similar to another case or set of cases that DOJ is currently handling; or (2) HUD determines that the recipient is not fulfilling its obligations pursuant to a compliance agreement reached with HUD, and that DOJ could more effectively enforce compliance. As noted earlier, HUD also refers matters to DOJ when it encounters difficulties in reaching a voluntary resolution of a complaint with the recipient. Since 1998, HUD has referred one Title VI complaint to DOJ. If a complaint is referred to another federal agency, HUD notifies the parties of the referral and the receiving agency is responsible for initiating subsequent communications with the parties. HUD’s Title VI regulations do not include a right of appeal.
HUD’s Funding and Staffing Resources for Addressing Title VI Complaints
The Office of the Secretary of HUD is responsible for providing the Office of Fair Housing and Equal Opportunity with its salaries and budget. FHEO’s 2002 budget for the Fair Housing Assistance Program and Fair Housing Initiatives Program was $46 million. The overall 2002 salary and expenses for FHEO’s budget was $57.3 million. Enforcement activities related to Title VI, § 504 of the Rehabilitation Act, and the Fair Housing Act were not identified as separate line items as part of this budget.
Additionally, HUD’s Lead Hazard Control budget increased 10 percent in 2002 with an allocation of $110 million. For FY 2003, HUD’s Lead Hazard Control program’s budget increased to $176 million. Dr. David Jacobs, director of HUD’s Office of Healthy Homes and Lead Hazard Control, indicated that President Bush has provided his office with additional staff in order to increase grant management operations, enforcement capacity, and public outreach activities.
HUD maintained that because FHEO receives relatively few Title VI complaints, its funding and staffing levels are sufficient to carry out the mandates of Executive Order 12,898, in contrast to what is required for HUD’s other civil rights enforcement obligations.
Environmental advocates in general, and minority and low-income residents in particular, look to EPA for definitive guidelines on how to file administrative complaints alleging adverse disparate impact in violation of Title VI of the Civil Rights Act of 1964. Residents of low-income neighborhoods are often victims of an environmental/economic dilemma, finding that new industrial facilities planned for their neighborhoods offer the promise of new jobs while, at the same time, creating an adverse environmental and health impact. These communities are forced to choose between maintaining their health and the often unrealized promise of employment and community revitalization. For state and local regulators and industry representatives seeking to avoid the construction and operating delays, Title VI complaints are seen as obstacles to profit-making, unnecessarily delaying the construction and operation of new facilities. Industry representatives claim to be procedurally frustrated by the amount of uncertainty in the permitting process. Even when they satisfy existing environmental standards when submitting permit applications to state and local environmental recipients, their permits may be later denied in a pending Title VI complaint investigation.
EPA receives the bulk of Title VI complaints that raise environmental justice concerns and has taken the lead in providing guidance to environmental stakeholders. Even though the agency has issued Interim Guidance, Draft Revised Investigation Guidance, and Draft Recipient Guidance, environmental stakeholders, advocates, and legal scholars continue to seek clearer answers to questions of what constitutes disparate impact, when complaints can be filed, how long a complaint should take to process, how communities are given access and information for participation in decision-making, and how the interests of industry and communities can be balanced.
Although the Commission realizes the necessity of thoroughly reviewing comments and concerns of environmental stakeholders and other regulators regarding the Draft Recipient Guidance and the Draft Revised Investigation Guidance, there has been a significant delay in the release of final guidance that addresses these and other concerns. Communities that are continually exposed to harmful pollutants cannot tolerate more procedural delays in being informed of what will be deemed to be important elements of an adverse disparate impact Title VI violation. Simultaneously, industry representatives and state and local regulators should also be informed of how potential industrial facilities may be in violation of Title VI, environmental regulations, and other civil rights laws in order to avoid and prevent such infractions.
Furthermore, the impact of the Supreme Court decision in Alexander v. Sandoval barring private rights of action under agency regulations promulgated under § 602 of Title VI remains a controversial legal development for environmental and community stakeholders. These stakeholders must increasingly rely on administrative remedies, as opposed to judicial mechanisms to obtain relief from alleged violations of Title VI. Environmental stakeholders and regulators have varied reactions to the impact of the decision. Sue Briggum, director of government affairs and environmental affairs for Waste Management, Inc., testified that she was “unaware of a single court decision that has awarded judgment to the plaintiffs under a Title VI disparate impact analysis in the environmental justice setting. So the court’s refusal to allow such suits to go forward is nothing new.” Ms. Briggum noted that “while a number of federal agencies have had Title VI disparate impact regulations on the books for many years, most have never been enforced, and their meaning has never been fleshed out.” This industry representative concluded by telling the Commission:
[E]ver since the Supreme Court’s Guardians decision 20 years ago, the validity of those regulations has been in serious doubt. Guardians suggested that because Title VI itself does not prohibit policies that have disparate racial impact but rather only prohibits intentional discrimination, Congress may not have intended to permit agencies to adopt regulations that outlaw disparate impact. . . .
I do not believe that Congress should change the law in order to permit private suits to prevent federal fund recipients from adopting policies that have a disparate racial impact.
In contrast, Elizabeth Teel, clinical fellow and deputy director of the Tulane Law School Environmental Law Clinic, maintained that the Sandoval case should be reversed. She emphasized that, faced with the unwillingness of the federal government to protect communities of color and low-income populations, the availability of a viable judicial remedy is essential. According to Ms. Teel, the impact of the Sandoval decision is devastating to minority and low-income communities seeking environmental justice:
The Sandoval decision . . . and the following decision in the Third Circuit have now effectively made it impossible for citizens to protect themselves. If the government won’t, at least let’s make sure that the citizens have a possibility of protecting themselves in the court system.
Regardless of the perspective of Sandoval’s value, environmental justice complainants have one less avenue of redress. Accordingly, final Title VI guidance and aggressive administrative enforcement are even more critical now than in the past, since administrative enforcement may be the sole avenue for relief for many communities.
The Commission makes the following recommendations concerning the effective use of Title VI to ensure that environmental decision-making is free of discrimination based on race, ethnicity, gender, and level of income:
EPA should avoid any further unnecessary delays and issue a final Title VI guidance on processing complaints and methods to improve permitting programs, pursuant to the expressed intent of the agency and Executive Order 12,898. When this is accomplished, stakeholders will have a clear understanding of strategies to avoid environmental justice issues that may lead to Title VI complaints, as well as how EPA’s Office of Civil Rights analyzes and resolves these complaints.
In the appropriate circumstances, EPA should conduct independent analyses of adverse disparate impacts, in order to determine if they actually are present in a given community. Accordingly, the agency should review analyses from recipients and complainants, but not solely rely on them as a basis for its administrative Title VI decisions.
In its 1975 report, The Federal Civil Rights Enforcement Effort–1974, the Commission supported terminating federal funding in instances of noncompliance with Title VI as an appropriate remedy, when it has been determined that fund termination would not have a detrimental effect on the health of the public. We again urge the agencies to use all available tools to protect the precarious health status of the poor and people of color, whose overall lower health status can be exacerbated by exposure to environmental hazards.
EPA should eliminate the “authority to consider” provision from its final guidance. The provision unnecessarily limits the agency’s Title VI adverse disparate impact investigations and the ability of communities to establish adverse disparate impact. This provision is especially a problem where state funding recipients either create laws and regulations, or are shielded by existing state laws and regulations, that restrict or limit what is within their “authority to consider” when determining adverse disparate impact in their permitting process.
EPA should establish a guideline for its state funding recipients that incorporates an inclusive definition of adverse disparate impact, including socioeconomic, health, and environmental factors.
Federal agencies should clarify their requirements for the exercise of shared and sole jurisdictional responsibilities in investigating and resolving Title VI complaints, in instances where Title VI complaints involve two or more federal agencies. Establishing and providing environmental justice stakeholders with easy access to these policies would minimize the amount of time to administratively process complaints.
Federal agencies should establish clear notification requirements to all parties involved in Title VI complaints of the status of those complaints, as well as the shared, transferred, or sole jurisdiction of the federal agencies responsible for investigating and resolving the complaints.
Federal agencies should establish formal appeal procedures for their decisions. Currently, although EPA may reconsider its Title VI decisions, it is uncertain what factors are used to determine when this can occur, as well as what criteria would be considered in the reconsideration. In other federal agencies, no appeal mechanisms exist at all.
Once federal agencies have established procedures for the right of appeal, appropriate mechanisms should be instituted for notifying the parties of when their complaints are ready for appeal and advising the parties on the procedure for filing appeals.
EPA and other federal agencies should enforce or reform their penalty policies to enhance incentives for compliance and assess penalties for willful, repeated noncompliance by any facility located in a low-income and/or minority community.
Federal agencies should institute Title VI compliance review programs to periodically review the number and types of Title VI complaints and to ensure that their funding recipients are complying with their Title VI obligations. The formal complaint review programs should assist in preventing Title VI complaints before they arise. To be most effective, these programs must be provided sufficient funding and staff.
All federal agencies should create formal guidance for their Title VI administrative complaints and activities of their funding recipients that have implications for human health and the environment. Clear guidance is required if all stakeholders are to understand what actions may constitute a violation of Title VI, how complaints will be processed and investigated, and what actions can be taken to prevent or decrease Title VI complaints.
 Michael D. Mattheisen, Applying the Disparate Impact Rule of Law to Environmental Permitting Under Title VI of the Civil Rights Act of 1964, 24 Wm. & Mary Envtl. L. & Pol’y Rev. 1, 8 (2000). See, e.g., Goodwin v. Wyman, 330 F. Supp. 1038, 1040 n.3 (S.D.N.Y. 1971) (“the same showing is required to establish a violation of [Title VI] as is required to make out a racial discrimination violation under the Fourteenth Amendment’s Equal Protection Clause”), aff’d, 406 U.S. 962 (1972).
 42 U.S.C. § 2000d (1994).
 40 C.F.R. § 7.35(b) (2002).
 See Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673, 680 (S.D. Tex. 1979) In Bean, the approved location of a solid waste facility was in a neighborhood that was 82 percent black and was within 1,700 feet of a predominately black high school. During a motion for a preliminary injunction, the plaintiffs contended that the site selection for the facility was racially discriminatory. The court found, however, that the complainants’ evidence would probably not be sufficient to prove that the permitting decision was motivated by intentional discrimination. Id. See also Julie H. Hurwitz and E. Quita Sullivan, Using Civil Rights Laws to Challenge Environmental Racism: From Bean to Guardians to Chester to Sandoval, 2 J. L. Soc’y 5, 19–20 (2001) (hereafter cited as Hurwitz and Sullivan, Using Civil Rights Laws).
 See 40 C.F.R. § 7.35(b). See also id. § 7.35(c) (prohibiting discriminatory program criteria or methods and locating a facility that creates a discriminatory effect); Robert D. Bullard, ed., “Anatomy of Environmental Racism and the Environmental Justice Movement,” in Confronting Environmental Racism: Voices from the Grass-roots, 1993, p. 39; Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 592 n.13 (1983) (“The threshold issue before the Court is whether the private plaintiffs in this case need to prove discriminatory intent to establish a violation of Title VI . . . and administrative implementing regulations promulgated thereunder. I conclude, as do four other Justices, in separate opinions, that the Court of Appeals erred in requiring proof of discriminatory intent.”) See generally Elston v. Talledaga County Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993), reh’g, en banc denied, 7 F.3d 242 (11th Cir. Ala. 1993). The Elston case describes the fundamental elements of the disparate impact standard:
To establish liability under the Title VI regulations disparate impact scheme, a plaintiff must first demonstrate by a preponderance of the evidence that a facially neutral practice has a disproportionate adverse effect on a group protected by Title VI. If the plaintiff makes such a prima facie showing, the defendant then must prove that there exists a substantial legitimate justification for the challenged practice, in order to avoid liability. If the defendant carries this rebuttal burden, the plaintiff will still prevail if able to show that there exists a comparably effective alternative practice which would result in less disproportionality, or that the defendant’s proffered justification is a pretext for discrimination.
Elston, 997 F.2d at 1407.
 See 42 U.S.C. § 2000d-1; Michael B. Gerrard, ed., The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, “ Title VI,” by Bradford C. Mank (Chicago: ABA Publishing, 1999), p. 25 (hereafter cited as Mank, “Title VI”).
 Mank, “Title VI,” p. 25. See 42 U.S.C. § 2000d-1.
 U.S. Environmental Protection Agency, “Reorganization Plan No. 3 of 1970,” History, July 9, 1970, <http://www.epa. gov/cgi-bin/epaprintonly.cgi> (last accessed Nov. 6, 2002) (certain environmental functions that were being performed by the Department of the Interior; Department of Health, Education and Welfare [now known as the Department of Health and Human Services]; the Atomic Energy Commission; the Federal Radiation Council; and the Department of Agriculture were transferred to EPA).
 Richard J. Lazarus, Pursuing Environmental Justice: The Distributional Effects of U.S. Environmental Protection, 87 Nw. U. L. Rev. 787, 835–36 (1993); William D. Ruckelshaus, administrator, U.S. Environmental Protection Agency, testimony before the U.S. Commission on Civil Rights, hearing, Washington DC, June 14–17, 1971, transcript, p. 151.
 William D. Ruckelshaus, administrator, U.S. Environmental Protection Agency, testimony before the U.S. Commission on Civil Rights, hearing, Washington DC, June 14–17, 1971, transcript, p. 151.
 Nondiscrimination in Programs Receiving Federal Assistance from the Environmental Protection Agency—Effectuation of Title VI of the Civil Rights Act of 1964, 38 Fed. Reg. 17,968, 17,969 (1973). See also id. at 17,969 (a recipient may not “directly or indirectly utilize criteria or methods of administration which have or may have the effect of subjecting a person to discrimination because of race, color, or national origin”); U.S. Commission on Civil Rights, The Federal Civil Rights Enforcement Effort–1974, 1975, pp. 592–95 (hereafter cited as USCCR, Enforcement Effort). The Enforcement Effort report was based on the 1971 testimony of EPA’s administrator and additional research. In this report, the Commission relied on EPA’s existing Title VI regulations, and disagreed with EPA’s position that the agency was not responsible for reversing previous discriminatory practices of its Title VI-funded programs.
 38 Fed. Reg. 17,968.
 Nondiscrimination in Programs Receiving Federal Assistance from the Environmental Protection Agency, 49 Fed. Reg. 1656 (1984) (codified at 40 C.F.R. pts. 7, 12 (2003)).
 See 40 C.F.R. § 7.130(b)(2)(ii)–(4) (2002). After an administrative law judge (ALJ) makes a finding of a program recipient’s noncompliance with Title VI, within 30 days of the determination, the program recipient may file an objection (“exception”) to this finding with the EPA administrator. Within 45 days of the ALJ’s decision, the administrator can notify the recipient that the ALJ’s finding will be reviewed. The ALJ’s decision can become the final determination of the matter, if the EPA administrator does not choose to review the decision, or if the recipient does not request an exception to the ALJ’s finding. If the administrator decides to review the ALJ’s ruling and make a determination to deny a recipient’s application, or suspend or terminate EPA’s financial assistance, an additional process must be completed. The administrator’s finding only becomes effective 30 days from the time a detailed written report of the matter is sent to the committees of the U.S. House of Representatives and U.S. Senate that have legislative jurisdiction over the recipient’s program. Pursuant to EPA’s regulations for assistance programs, the administrator’s decision is not subject to additional administrative appeal. Id.
 Julia B. Latham Worsham, Disparate Impact Lawsuits Under Title VI, Section 602: Can a Legal Tool Build Environmental Justice? 27 B.C. Envtl. Aff. L. Rev. 631, 646 (citing James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 Stan. Envtl. L.J. 125 (1994)).
 National Advisory Council for Environmental Policy and Technology, Title VI Committee, “Title VI Implementation Advisory Committee Under the National Advisory Council for Environmental Policy and Technology,” <http://www.epa. gov/oceompage/nacept/titleVI/titlechrage.html> (last accessed July 8, 2002).
 See Angela Rowen, “EPA MIA: Why Won’t Feds Enforce Environmental Discrimination Laws?” SFBG News, June 10, 1998, <www.sfbg.com/News/32/36/OnGuard/index.html> (last accessed Sept. 28, 2002) (hereafter cited as Rowen, “Why Won’t Feds Enforce Environmental Discrimination Laws?”). See also USCCR, Enforcement Effort, p. 595 (The Commission criticized EPA for its failure to require that local recipients of federal funding supply acceptable sewer services in communities of color. During this time, the Commission also observed that EPA would be “responsible for perpetuating that discrimination” if the agency did not take affirmative steps to prevent it).
 See Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 22, 2003 (hereafter cited as Higginbotham letter); Natalie M. Hammer, Comment: Title VI as a Means of Achieving Environmental Justice, 16 N. Ill. U. L. Rev. 693, 711 (1996) (citing “Environmental Justice: Use of Civil Rights Law to Advance Equity Goals Discussed,” National Environmental Daily (BNA), Sept. 29, 1994).
 See 40 C.F.R. §§ 7.10–7.135 (2002).
 Mank, “Title VI,” p. 26; Rowen, “Why Won’t Feds Enforce Environmental Discrimination Laws?” See Kary L. Moss, Environmental Justice at the Crossroads, 24 Wm. & Mary Envtl. L. & Pol’y Rev. 35, 42 (2000) (hereafter cited as Moss, Crossroads).
 Mank, “Title VI,” p. 26.
 Ibid. See Rowen, “Why Won’t Feds Enforce Environmental Discrimination Laws?”
 Rowen, “Why Won’t Feds Enforce Environmental Discrimination Laws?”
 U.S. Environmental Protection Agency, “U.S. EPA Draft Title VI Guidance Documents—Fact Sheet,” <http://www.epa.gov/civilrights/t6dftguidefacts.pdf> (last accessed May 3, 2002); Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, testimony before the U.S. Commission on Civil Rights, hearing, Washington, DC, Feb. 8, 2002, official transcript, p. 66 (hereafter cited as February Hearing Transcript); U.S. Environmental Protection Agency, Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits, February 1998, p. 1, <http://www.epa.gov/civilrights/docs/interim.pdf> (last accessed Sept. 3, 2003) (hereafter cited as EPA, Interim Guidance); June M. Lyle, Reactions to EPA’s Interim Guidance: The Growing Battle for Control over Environmental Justice Decisionmaking, 75 Ind. L.J. 687, 696 (2000) (hereafter cited as Lyle, Reactions to EPA’s Interim Guidance); Higginbotham letter, p. 3.
 40 C.F.R. § 7.10. See generally EPA, Interim Guidance. EPA considers a properly pleaded Title VI complaint as one that is in writing, signed, and provides contact information (i.e., telephone number and address of the signatory); descriptive enough to detail the alleged illegal act(s) that violate the intentional discrimination and/or discriminatory effects standards of Title VI; filed within 180 days of the alleged discriminatory act(s); and names the EPA recipient that initiated the alleged discriminatory act(s). Accordingly, pursuant to EPA’s regulations, OCR makes a decision to accept, reject, or refer to the responsible federal agency a complaint within 20 days upon its acknowledged receipt. OCR will also establish whether the entity or person who is allegedly responsible for the discriminatory activity is an EPA recipient, as defined in 40 C.F.R. § 7.25. EPA, Interim Guidance, p. 6.
 EPA, Interim Guidance, pp. 1, 11.
 Ibid., pp. 3–5.
 Ibid., p. 1 (“This interim guidance is intended to update the Agency’s procedural and policy framework to accommodate the increasing number of Title VI complaints that allege discrimination in the environmental permitting context”); Higginbotham letter, p. 3. EPA’s Interim Guidance also states, “While Title VI does not alter the substantive requirements of a recipient’s permitting program, it obligates recipients to implement those requirements in a nondiscriminatory manner as a condition of receiving Federal funds.” EPA, Interim Guidance, p. 8, n. 12.
 EPA, Interim Guidance, pp. 8–10.
 Ibid., p. 11.
 Ibid. The guidance also examines whether the permit at issue is a renewal with demonstrated benefits or is intended for a new facility with more speculative benefits.
 Higginbotham letter, p. 4. See EPA, Interim Guidance, p. 11.
 EPA, Interim Guidance, p. 10. See Michael D. Mattheisen, The U.S. Environmental Protection Agency’s New Environmental Civil Rights Policy, 18 Va. Envtl. L.J. 183, 210 (1999). OCR may also consult with complainants to determine the sufficiency of mitigating the public health and environmental impacts.
 EPA, Interim Guidance, p. 11.
 See 40 C.F.R. §§ 7.115(e), 7.130(b) (1999).
 Catherine M. Cooney, “Still Searching for Environmental Justice,” Environmental Science & Technology, vol. 33, issue 9, May 1, 1999, <http://pubs.acs.org/hotartcl/est/99/may/still.html> (last accessed Mar. 14, 2002) (hereafter cited as Cooney, “Still Searching for Environmental Justice”).
 Lyle, Reactions to EPA’s Interim Guidance, p. 697.
 See Linda M. Ulland, Minnesota Pollution Control Agency, “Environmental Equity: State Implementation of Environmental Justice Requirements,” WM ’99 Conference, Feb. 28–Mar. 4, 1999, <http://www.wmsym.org/wm99/pqrsta/66/66-3.pdf> (last accessed Oct. 15, 2002).
 Cooney, “Still Searching for Environmental Justice”; Joel Hirschhorn, “Environmental Justice Developments May Affect State Programs,” National Governors Association—Environment, Natural Resources, and Energy, Mar. 9, 1998, <http://www.nga.org/common/issueBriefDetailPrint/1,1434,901,00.html> (last accessed Oct. 27, 2002).
 Cooney, “Still Searching for Environmental Justice.”
 Ibid. (“I challenge anybody to find the term ‘disparate impact’ in any environmental statute,” agreed Bill Kovacs, vice president, Environment and Regulatory Affairs, U.S. Chambers of Commerce).
 EPA’s Title VI Guidance and Alternative State Approaches: Hearings Before the House Subcomm. on Oversight and Investigations of the House Comm. on Commerce, 105th Cong. 11 (1998) (testimony of Harry C. Alford, president, National Black Chamber of Commerce). But see Lyle, Reactions to EPA’s Interim Guidance, pp. 703–04 (the author noted that local residents often face the unfortunate option of having either additional employment opportunities in their neighborhoods or exposure to environmental pollutants); Interim National Black Environmental & Economic Justice Coordinating Committee, “On the Anniversary of King’s Birth, Black Victims of Toxic Exposure and Policy Experts to Declare National State of Emergency on Environmental Racism and Economic Injustice,” Jan. 13, 2000, <http://www.ejrc.cau.edu/inbeejcc_press.htm> (last accessed June 20, 2003) (hereafter cited as Interim National Black Environmental & Economic Justice Coordinating Committee, “On the Anniversary of King’s Birth”). The Interim National Black Environmental & Economic Justice Coordinating Committee and environmental justice advocates, educators, government officials, and scholars issued a declaration on the national state of emergency on environmental justice issues. Some of their comments related to environmental justice and economic development in communities of color. They observed the following:
Industrial companies gain entry into our communities with the promise of new jobs, but we get few or none of these jobs. The few black residents who work at the plants are typically hired on a temporary contract basis with inadequate safety training and no benefits; or they hold the lowest paying and most hazardous jobs at the facilities. Most of the employees at these plants do not live in our community. At the end of a work shift, there is a long line of traffic of plant workers driving out of our communities to their homes.
Interim National Black Environmental & Economic Justice Coordinating Committee, “On the Anniversary of King’s Birth.”
 Kenneth Owen, Environmental Justice Enforcement Requires Reassessment Under the Equal Protection Clause, Title VI of the Civil Rights Act, and Environmental Statutes, 30 Golden Gate U. L. Rev. 379, 391 (2000).
 Bradford C. Mank, Environmental Justice and Title VI: Making Recipient Agencies Justify Their Siting Decisions, 73 Tul. L. Rev. 787, 818 (1999) (hereafter cited as Mank, Making Recipient Agencies Justify Their Siting Decisions) (the author noted that “[t]he Interim Guidance simply states that ‘a justification offered will not be considered acceptable, if it is shown that a less discriminatory alternative exists’”).
 Mank, Making Recipient Agencies Justify Their Siting Decisions, p. 823.
 Peggy Robertson, “Environmental Justice: New Guidance on ‘Environmental Justice’ Complaints Due This Spring,” The Brownfields Report, vol. 5, no. 7, Apr. 6, 2000 (hereafter cited as Robertson, “New Guidance”).
 Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act of 1999, Pub. L. No. 105-174, tit. III, § 214(a), 112 Stat. 2461, 2486 (1998).
Provided further, That none of the funds made available in this Act may be used to implement or administer the interim guidance issued on February 5, 1998, by the U.S. Environmental Protection Agency relating to title VI of the Civil Rights Act of 1964 and designated as the “Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits” with respect to complaints filed under such title after the date of the enactment of this Act and until guidance is finalized. Nothing in this proviso may be construed to restrict the U.S. Environmental Protection Agency from developing or issuing final guidance relating to title VI of the Civil Rights Act of 1964.
Id. (emphasis added).
 Margaret Kriz, “Coloring Justice Green,” The National Journal, vol. 33, no. 30, July 28, 2001 (hereafter cited as Kriz, “Coloring Justice”). See 144 Cong. Rec. H9359, 9369 (1998); Robertson, “New Guidance.”
 See, e.g., Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, 2001, Pub. L. No. 106-377, 114 Stat. 1441, 1441A41 (Oct. 27, 2000) (“that none of the funds made available in this Act may be used to implement or administer the interim guidance issued on February 5, 1998, by the [EPA] relating to title VI of the Civil Rights Act of 1964 . . . with respect to complaints filed under such title after October 21, 1998, and until guidance is finalized”).
 Office of Management and Budget, “H.R. 4635—Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Bill, FY 2001,” June 13, 2000, <http://www.whitehouse.gov/omb/legislative/sap/106-2/print/HR4635-r.html> (last accessed June 20, 2003).
 See Kriz, “Coloring Justice” (Congress also provided EPA Administrator Christine Todd Whitman an additional $2.7 million above the FY 2001 budget for the agency’s environmental justice efforts). See generally 149 Cong. Rec. H707 (2003).
 See generally Grassroots Recycling Network, Natural Resources Defense Council, and Friends of the Earth, “Letter and Comments in Opposition to Proposed Rule Submitted to the Environmental Protection Agency,” Aug. 6 and Aug. 9, 2002, p. 1, <http://www.grrn.org/landfill/landfill_dereg_petition.pdf> (last accessed June 20, 2003). These organizations opposed a proposed regulation that would deregulate minimum national landfill standards that were promulgated during the 1990s by EPA through the Resource Conservation and Recovery Act (RCRA). They maintained that states would have the authority to waive minimum national landfill standards, which would violate RCRA, and hinder the coordination and production of RCRA research data. Ibid.
 H.R. 999, 108th Cong. (2003); S. 485, 108th Cong. (2003). See EPA, “Frequently Asked Questions,” Clear Skies, <http://epa.gov/cgi-bin/epaprintonly.cgi> (last accessed June 20, 2003) (Among other provisions, Clear Skies would “establish caps on sulfur dioxide, nitrogen oxides, and mercury emissions at levels 70% below year 2000 emission levels. The caps on emissions, coupled with rigorous monitoring protocols and automatic enforcement provisions, ensure that these reductions would be achieved and sustained over time”).
 Sheila Foster and Swati Prakash, “Don’t Let Bush Dirty the Air with His Act,” Newsday, Feb. 17, 2003, p. A-22.
 Natural Resources Defense Council, “There He Goes Again: Bush Budget Bashes the Environment,” Environmental Legislation: In Depth Analysis, Feb. 5, 2003, <http://www.nrdc.org/legislation/abudget04.asp> (last accessed July 15, 2003).
 Ibid. The Natural Resources Defense Council asserts that “the oil industry enjoys an exemption from liability at these sites, ensuring that it will never be held responsible for its toxic pollution even though it no longer contributes to the Superfund tax.” Ibid.
 See Roy Whitehead, Jr., and Walter Block, Environmental Justice Risks in the Petroleum Industry, 24 Wm. & Mary Envtl. L. & Pol’y Rev. 67, 78 (2000) (hereafter cited as Whitehead and Block, Environmental Justice Risks).
 St. Francis Prayer Ctr. v. Michigan Dept. of Envtl. Quality, EPA Complaint 05R-98-R5. The case is commonly known as Select Steel.
 Mank, “Title VI,” p. 46 (citing Angela M. Baggetta, “Environmental Justice: Black Caucus, EPA to Meet on Shintech; Dispute May Be Test Case on Title VI Suits,” Daily Environmental Reporter (BNA), no. 139, July 21, 1998, p. A-1).
 See Mank, “Title VI,” p. 46.
 Ibid. See also Henry Payne, “EPA Policy That Bars Polluting Plants from Minority Communities Comes Under Attack: Planting Prosperity or Sowing Racism?” Pittsburgh Post-Gazette, June 16, 1998, p. A-9; Gregory H. Meyers, Developing a Cohesive Front Against Environmental ‘Injustice’, 8 U. Balt. J. Envtl. L. 27, 34 (2000) (hereafter cited as Meyers, Developing a Cohesive Front) (African Americans in the St. James Parish community had a 65 percent unemployment rate).
 Whitehead and Block, Environmental Justice Risks, p. 78; Mank, “Title VI,” p. 47.
 U.S. Environmental Protection Agency, “In re: Shintech Inc., Order Responding to Petitioners’ Requests that the Administrator Object to Issuance of State Operating Permits, Permit Nos. 2466-VO, 2467-VO, 2468-VO,” Oct. 28, 2002, pp. 1–2, <http://www.epa.gov/rgytgrnj/programs/artd/air/title5/t5memos/shin1997.pdf> (hereafter cited as “Shintech Order”). See also U.S. Environmental Protection Agency, “6.6.1–Polyvinyl Chloride,” Organic Chemical Process Industry, September 1991, p. 1, <http://www.epa.gov/ttn/chief/ap42/ch06/final/c06s06-1.pdf> (last accessed July 15, 2003).
The manufacture of most plastics involves an enclosed reaction or polymerizaion step, a drying step, and a final treating and forming step . . . The major sources of air contamination in plastics manufacturing are the raw materials or monomers, solvents, or other volatile liquids emitted during the reaction; sublimed solids such as phthalic anhydride emitted in alkyd production; and solvents lost during storage and handling of thinned resins.
 EPA, “Shintech Order,” p. 1 (some of the other petitioners included the Gulf Coast Tenants Organization, Louisiana Coalition for Tax Justice, Save Our Selves, North Baton Rouge Environmental Association, and Neighbors Assisting Neighbors). See also ibid. (the petitioners originally requested EPA to object to the issuance of Shintech’s Title V (of the Clean Air Act, 42 U.S.C. §§ 7661–7661f) state operating permits).
 EPA, “Shintech Order,” pp. 7–8 (some of the petitioners filed an amended complaint against the Louisiana Department of Environmental Quality pursuant to Title VI and EPA’s implementing regulations, alleging environmental justice claims of racial discrimination in the issuance of the Shintech permits). See 40 C.F.R. § 7.35(b).
 Mank, “Title VI,” p. 46.
 Meyers, Developing a Cohesive Front, p. 34.
 EPA, “Shintech Order,” p. 8.
 University of Michigan, “Environmental Justice Case Study: Shintech PVC Plant in Convent, Louisiana,” Background section, <http://www.umich.edu/~snre492/shin.html> (last accessed June 24, 2003) (hereafter cited as University of Michigan, “Environmental Justice Case Study”) (during this time, EPA analyzed a disproportionate burden by using data from the 1990 census and estimates of industry-reported emissions).
 Mank, “Title VI,” p. 48.
 See John H. Cushman, Jr., “Pollution Policy is Unfair Burden, States Tell EPA,” New York Times, May 10, 1998, p. A-1.
 Mank, “Title VI,” p. 48. See University of Michigan, “Environmental Justice Case Study.”
 University of Michigan, “Environmental Justice Case Study.”
 Mank, “Title VI,” p. 49. See generally U.S. Environmental Protection Agency, Office of Civil Rights, “Decision Memorandum and Investigative Report for Title VI Administrative Complaint File No. 5R-98-R5 (Select Steel Complaint),” <http://www.epa.gov/civilrights/docs/ssdec_ir.pdf> (last accessed Oct. 29, 2002) (hereafter cited as EPA, “Select Steel Investigative Report”).
 Mank, “Title VI,” pp. 48–49. See also Hurwitz and Sullivan, Using Civil Rights Laws, pp. 54–55 (During the time the Select Steel complaint was filed with EPA, there was a Title VI case pending at EPA concerning a facility within 1.5 miles of the Select Steel site. Originally filed in 1992, this complaint, St. Francis Prayer Ctr. v. Michigan Dept. of Envtl. Quality (EPA Complaint 01R-94-R5, the Genesee Power Station case), was one of the oldest administrative complaints pending before EPA); Yasmin Yorker, external compliance team leader, U.S. Environmental Protection Agency, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Sept. 2, 2003 (as of September 2003, EPA was still investigating the Genesee Power Station case, which is in an active pending status).
 Mank, “Title VI,” p. 49; Meyers, Developing a Cohesive Front, p. 35.
 Mank, “Title VI,” p. 49 (citing “EPA Rejects Select Steel Environmental Justice Complaint,” Environmental Policy Alert, Nov. 4, 1998, p. 5).
 Alex Sagady, “E-M:/Engler News Release on Select Steel Case,” Alex J. Sagady & Associates, Enviro-Mich, Sept. 3, 1998, <http://www.great-lakes.net/lists/enviro-mich/1998-09/msg00016.html> (last accessed June 23, 2003). See also David Mastio, “Governor Will Use Flint Press Conference to Denounce Environmental Justice Rules, Detroit News, Sept. 2, 1998, p. B-1; Meyers, Developing a Cohesive Front, p. 35; Hurwitz and Sullivan, Using Civil Rights Laws, p. 67.
 Moss, Crossroads, pp. 36–37.
 Honigman Miller Schwartz & Cohn, Daniella D. Landers, “EPA Dismisses Environmental Justice Complaint Against Select Steel,” Michigan Environmental Compliance Update, vol. 9, issue 8, November 1998 (EPA’s Office of Civil Rights issued a letter dismissing the Select Steel environmental justice complaint on October 30, 1998). See also Environmental Appeals Board, EPA, Select Steel Corp., Docket No. PSD 98-21, “Order Denying Review,” Sept. 11, 1998, p. 13 <http://www.epa.gov/boarddec/orders/select.pdf> (last accessed July 16, 2003) (the Environmental Appeals Board denied review of the Select Steel complaint on jurisdictional grounds, since the Office of Civil Rights has the responsibility of ensuring EPA complies with Title VI). See generally Ann E. Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, “Letter to Father Phil Schmitter, Sister Joanne Chiaverini, and Russell Harding,” Select Steel Decision Memorandum and Report, Oct. 30, 1998, <http://www.epa.gov/ocrpage1docs/ssdec_ir.pdf> (last accessed July 16, 2003).
 U.S. Environmental Protection Agency, “Summary Decision on Title VI Complaint Regarding Michigan Department of Environmental Quality’s Permit for the Proposed Select Steel Facility, Complaint File No. 5R-98-R5,” Civil Rights, <http://www.epa.gov/cgi-bin/epaprintonly.cgi> (last accessed June 24, 2003).
 Ibid., p. 28. See Mank, “Title VI,” p. 49 (“the NAAQS [National Ambient Air Quality Standards] are health-based standards that the agency establishes ‘at a level presumptively sufficient to protect public health and allows for an adequate margin of safety for the population within the area’”).
 EPA, “Select Steel Investigative Report,” pp. 28–29.
 Mank, “Title VI,” p. 50 (citing Jerome Balter [Public Interest Center of Philadelphia] letter to Ann E. Goode [director of EPA Office of Civil Rights], Nov. 12, 1998). See also EPA, Interim Guidance, p. 11.
 Hurwitz and Sullivan, Using Civil Rights Laws, p. 57 (citing Joint Petition to Re-open Select Steel Investigation, or, in the Alternative, to Set Aside Investigative and Analytical Methods, jointly filed in the cases of Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (10R-97-R9); Hyde Park and Aragon Park Improvement Comm., Inc. v. Envtl. Prot. Div., Georgia Dep’t of Natural Resources, et al. (8R-94-R4)).
 Associated Press State & Local Wire, “Steel Company Drops Environmental Fight Over Genessee County Site,” Mar. 2, 1999, BC Cycle, State and Regional (hereafter cited as AP, “Steel Company Drops Fight”); David Mastio, “EPA Race Policy Costs Flint Plant: Lansing Gains from Environmental Justice Controversy,” Detroit News, Mar. 2, 1999, p. 1-A.
 AP, “Steel Company Drops Fight” (Bob Bosar, vice president of the Select Steel Corporation/Dunn Industrial Group, stated, “If Genessee County doesn’t want us, fine. There are plenty of places that do.”).
 Mank, “Title VI,” p. 50.
 Ibid. (citing EPA, Interim Guidance, p. 12).
 Mank, Making Recipient Agencies Justify Their Siting Decisions, pp. 811–12 (the Interim Guidance also did not show how and when mitigation efforts can counteract disparate impacts, and whether complainants or permit recipients have the burden of proving that the recipient did not select a less discriminatory option).
 See U.S. Environmental Protection Agency, Integrated Human Exposure Committee of the Science Advisory Board, An SAB Report: Review of Disproportionate Impact Methodologies, EPA-SAB-IHEC-99-007, December 1998, Abstract, p. ii, Introduction, p. 5. Some of SAB’s recommendations included performing disproportionate impact analyses in a sequential manner, determining the potential risk to all populations before estimating disproportionate impact, developing the Cumulative Outdoor Air Toxics Concentration Exposure Methodology to a greater extent, evaluating cancer risks and non-cancer health effects separately when analyzing potential risks of emitted chemicals for the purposes of determining whether or not the cumulative risks are minimal, and maintaining good communications with residents of local communities by conveying information of health impact studies. Ibid., Executive Summary, pp. 2–4.
 U.S. Environmental Protection Agency, Cooperative Environmental Management, “Report of the Title VI Implementation Advisory Committee—Next Steps for EPA, State, and Local Environmental Justice Programs,” Mar. 1, 1999, <http://www.epa.gov/cgi-bin/epaprintonly.cgi> (last accessed Sept. 3, 2003) (hereafter cited as EPA, “Report of the Title VI Implementation Advisory Committee”).
 U.S. Environmental Protection Agency, Office of Civil Rights, “Response to the IHEC Review of the Disproportionate Impact Methodologies,” <http://www.epa.gov/ocrpage1/docs/sabrep2.pdf> (last accessed June 25, 2003) (hereafter cited as EPA, “Response to IHEC Review”).
 EPA, “Report of the Title VI Implementation Advisory Committee.” See generally Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance), 65 Fed. Reg. 39,650 (June 27, 2000).
 EPA, “Report of the Title VI Implementation Advisory Committee.”
 65 Fed. Reg. 39,652, 39,655; Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, Testimony, February Hearing Transcript, p. 67 (the guidance “provides a framework to help recipients address situations that might otherwise result in the filing of complaints alleging violations of Title VI in EPA’s Title VI regulations”).
 U.S. Environmental Protection Agency, “U.S. EPA Draft Title VI Guidance Documents—Fact Sheet,” <http://www. epa.gov/civilrights/t6dftguidefacts.pdf> (last accessed May 3, 2002) (other approaches included fostering effective public participation and developing areawide pollution reduction programs).
 U.S. Environmental Protection Agency, “Draft Title VI Guidance Documents Questions and Answers,” p. 3, <http://www. epa.gov/civilrights/docs/t6guidefaq2.pdf> (last accessed June 27, 2003) (hereafter cited as EPA, “Questions and Answers”).
[R]ecipient means for the purposes of this regulation, any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.
Ibid. See also 65 Fed. Reg. at 39,656 (Draft Recipient Guidance and the Draft Revised Investigation Guidance serve solely as guidance and do not create enforceable “rights or obligations enforceable by any party in litigation with the United States”); EPA, “Questions and Answers,” p. 5.
 65 Fed. Reg. at 39,656 (emphasis omitted).
 Id. at 39,652.
 Id. at 39,658.
 See, e.g., id. at 39,675.
Another example might be an area-specific agreement that establishes a ceiling on pollutant releases with a steady reduction in those pollutants over time. The period of time over which those reductions should occur will likely vary with a number of factors, including the magnitude of the adverse disparate impact, the number and types of sources involved, the scale of the geographic area, the pathways of exposure, and the number of people in the affected population. It is worth noting, however, that pre-existing obligations to reduce impacts imposed by environmental laws (e.g., “reasonable further progress” as defined in Clean Air Act section 171(1)) might not be sufficient to constitute an agreement meriting due weight. Also, area-specific agreements need not be limited to one environmental media (e.g., air emissions); they may also cover adverse disparate impacts in several environmental media (e.g., air and water).
Id. (emphasis in original).
 Id. at 39,652; Higginbotham letter, p. 5.
 Higginbotham letter, pp. 5–6.
 65 Fed. Reg. at 39,675.
 Id. at 39,675–76.
 Id. at 39,676.
 Id. at 39,675–76; Higginbotham letter, p. 4. See also Lawyers’ Committee for Civil Rights Under Law and NAACP Legal Defense & Educational Fund, letter to Carol Browner, administrator, and Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 28, 2000, p. 43, <http://www.epa.gov/civilrights/docs/t6com2000_ 060.pdf> (last accessed June 25, 2003) (hereafter cited as Lawyers’ Committee/LDF letter).
 65 Fed. Reg. at 39,675–76; Higginbotham letter, p. 4.
 Chevron Companies, letter to Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 24, 2000, p. 2, <http://www.epa.gov/civilrights/docs/t6com 2000_015.pdf> (last accessed June 27, 2003) (hereafter cited as Chevron letter).
 National Environmental Justice Advisory Council, Title VI Task Force, “Comments to Carol Browner and Ann Goode,” Aug. 26, 2000, p. 39, <http://www.epa.gov/civilrights/docs/t6com2000_021.pdf> (last accessed June 25, 2003) (hereafter cited as NEJAC comments).
 See also Luke W. Cole, director, Center on Race, Poverty, & the Environment, California Rural Legal Assistance Foundation, letter to EPA Administrator Carol Browner, re: “Comments on Draft Revised Guidance Investigating Title VI Administrative Complaints Challenging Permits and Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs,” Aug. 26, 2000, p. 26 (hereafter cited as Cole, “Comments on Draft Revised Guidance”) (“there is no requirement that any of the parties actually represent any people in any affected community, or that any party has the power to deliver what it is promising”).
 65 Fed. Reg. at 39,652.
 Id. at 39,673. “ADR includes a variety of approaches including the use of a third party neutral acting as a mediator or the use of a structured process through which the parties can participate in shared learning and creative problem solving to reach a consensus.” Id.
 Id. at 39,673.
 Shintech, Inc., letter to Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 25, 2000, p. 5, <http://www.epa.gov/civilrights/docs/t6com2000_017.pdf> (last accessed June 27, 2003). Shintech advised EPA to involve complainants in the informal resolution process, to avoid further delay and litigation. Ibid.
 Cole, “Comments on Draft Revised Guidance,” p. 25. See Lawyers’ Committee/LDF letter, p. 43. See generally NEJAC comments, pp. 20–25 (provides information on other disadvantages of ADR).
 See Stephen Donahue, resident of Baton Rouge, Louisiana, letter to Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, <http://www.epa.gov/civilrights/docs/t6com2000_099.pdf> (last accessed June 27, 2003) (“I live in Baton Rouge, Louisiana. Almost anybody can see if they visit here that heavy polluting industry locates in poor neighborhoods and in neighborhoods where the majority of people are people of color. The poor cannot afford to constantly contest industrial expansion in their neighborhoods.”).
 Cole, “Comments on Draft Revised Guidance,” pp. 25–26.
 65 Fed. Reg. at 39,670. EPA reminded recipients that the Title VI guidance did not apply to other issues, such as enforcement-related matters and adequacy of public participation. These and other topics would be addressed in future EPA guidance. Id. at 39,669.
 EPA, “Questions and Answers,” p. 3.
 65 Fed. Reg. at 39,651–54; Bradford C. Mank, The Draft Title VI Recipient and Revised Investigation Guidances: Too Much Discretion for EPA and a More Difficult Standard for Complainants? 30 Envtl. L. Rep. 11144 (2000) (hereafter cited as Mank, Too Much Discretion for EPA). See also EPA, “Questions and Answers,” p. 5. Since the Draft Revised Investigation Guidance does not address complaints against EPA recipients that are federally recognized Indian tribes, EPA intends to provide a different guidance that takes into account the relationship of federal Indian law to Title VI, in order to address these issues. EPA plans to continue collaborative efforts with federally recognized tribes and the Department of Justice to accomplish this objective. Ibid., p. 5.
 Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, February Hearing Transcript, p. 67.
 65 Fed. Reg. at 39,670–77; id. at 39,670 (citing 28 C.F.R. §§ 42.101–42.112).
 65 Fed. Reg. at 39,654; Mank, Too Much Discretion for EPA, p. 11158.
 65 Fed. Reg. at 39,654. See also id. at 39,654, 39,676–77 (the guidance differentiates between a decrease in emissions at a certain facility and in a specific area, in order to eliminate adverse disparate impacts).
[I]f a permit action that is the subject of the complaint will significantly decrease either overall emissions or pollutants of concern at the facility named in the complaint, the [EPA] usually would not initiate an investigation of allegations regarding cumulative impacts. A recipient has the burden of demonstrating that the decrease at a particular facility is actual and significant. The decreases should be in the same media and from the same facility that is alleged in the complaint.
Mank, Too Much Discretion for EPA, p. 11164 (internal footnotes omitted).
 65 Fed. Reg. at 39,654.
 Id. at 39,676–77 (the agency anticipated that parts of the adverse disparate impact analysis would be altered or omitted, based on the facts and totality of the circumstances in each complaint). See generally id. at 39,677–82 (provides a detailed discussion of the EPA’s proposed adverse disparate impact analysis).
 National Petrochemical & Refiners Association, letter to Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, “Comments of National Petrochemical & Refiners Association: Draft Title VI Guidance for EPA Assistance Recipients Administrating Environmental Permitting Programs and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits,” Aug. 28, 2000, pp. 1–2, <http://www.epa.gov/civilrights/ docs/t6 com2000_046.pdf> (last accessed Nov. 4, 2002) (hereafter cited as NPRA letter and comments). See also Chevron letter, p. 2 (Chevron maintained that the Draft Revised Investigation Guidance and the Draft Recipient Guidance were substantial improvements over the Interim Guidance, due to extensive stakeholder input).
 See, e.g., Public Interest Law Center of Philadelphia, letter to the U.S. Environmental Protection Agency, “Title VI Guidance Comments,” July 21, 2000, p. 5, <http://www.epa.gov/civilrights/docs/t6com2000_003.pdf> (last accessed June 27, 2003). The Public Interest Law Center indicated that representatives of communities of color and the EPA’s Implementation Advisory Committee did not recommend the use of the adverse disparate impact analysis method, as described in the Interim Guidance and again included in the Draft Revised Investigation Guidance. Ibid.
 Chevron letter, p. 2.
 See, e.g., Pamela Lyons, director, State of New Jersey Department of Environmental Protection, letter to Yasmin Yorker, Title VI team leader, U.S. Environmental Protection Agency, Aug. 22, 2000, p. 1, <http://www.epa.gov/civilrights/ docs/t6com2000_030.pdf> (last accessed Nov. 5, 2002) (hereafter cited as Lyons letter); Dennis W. Archer, mayor, city of Detroit, letter to Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 28, 2000, p. 3, <http://www.epa.gov/civilrights/docs/t6com2000_059.pdf> (last accessed Nov. 5, 2002) (industry representatives and local government officials stressed that the new guidance does not provide single definitions to important terms such as “adverse disparate impact,” “adequate justification,” “comparison populations,” or “affected populations”). See generally Lyons letter, p. 1 (“EPA still clings to the position, that no matter what a state recipient does in implementing a Title VI program, that . . . [the EPA] reserve[s] the right to a de novo investigation and determination as to whether the state effort is good enough”).
 65 Fed. Reg. at 39,673; Higginbotham letter, p. 8.
 65 Fed. Reg. at 39,673; Higginbotham letter, p. 8.
 65 Fed. Reg. at 39,672.
 Cole, “Comments on Draft Revised Guidance,” p. 16 (quoting 65 Fed. Reg. at 39,672). See also NEJAC comments, p. 13 (“The Guidance . . . forces complainants to file a complaint before exhausting their administrative remedies . . . , it then will dismiss that timely filed complaint, however, because the complainant is exhausting its administrative remedies!”).
 40 C.F.R. § 7.120(b)(2) (“the filing of a grievance with the recipient does not satisfy the requirement that complaints must be filed within 180 days of the alleged discriminatory acts”); Higginbotham letter, p. 8.
 65 Fed. Reg. at 39,672. See Higginbotham letter, p. 8.
 NPRA letter and comments; Environmental Council of the States, letter to Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 24, 2000, p. 3, <http://www.epa.gov/civilrights/docs/t6com2000_043.pdf> (last accessed Nov. 4, 2002); Chevron letter, p. 5 (describing EPA’s timeframes as unnecessarily lengthy and open-ended).
 Sierra Club–Lone Star Chapter and Galveston-Houston Association for Smog Prevention, letter to Carol Browner, administrator, and Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 28, 2000, <http://www.epa.gov/civilrights/docs/t6com2000_091.pdf> (last accessed Nov. 6, 2002).
 NEJAC, comments, p. 14 (citing 40 C.F.R. § 124.19(f)(1)). But see 65 Fed. Reg. at 39,672.
 See generally Mank, Too Much Discretion for EPA.
 Lawyers’ Committee/LDF letter, p. 17.
 42 U.S.C. § 2000d-4a.
 Grove City College v. Bell, 465 U.S. 555 (1984) (Grove held that covered “program or activity” of a university meant only the federally funding financial aid program).
 Lawyers’ Committee/LDF letter, p. 20 (“the . . . statutory exception was employment discrimination (except in cases where federal funds are earmarked for employment), to avoid overlap with Title VII”).
 Lawyers’ Committee/LDF letter, p. 20.
 NEJAC comments, p. 28.
 Golden Gate University School of Law Environmental Law and Justice Clinic, letter to Carol Browner, administrator, and Ann Goode, director, Office of Civil Rights, U.S. Environmental Protection Agency, Aug. 28, 2000, p. 5, <http://www.epa.gov/civilrights/docs/t6com2000_033.pdf> (last accessed Nov. 5, 2002).
 Higginbotham letter, p. 9.
 Mank, Too Much Discretion for EPA, p. 11146 (citing John McQuaid, “Environmental Justice Revisited in New EPA Plan,” New Orleans Times-Picayune, June 20, 2000, p. A-1).
 See generally Robert D. Bullard, Ph.D., “EPA Draft Title VI Guidance Misses Mark,” pp. 1–2, <www.epa.gov/civil rights/docs/ t6com2000_077.pdf> (last accessed Nov. 5, 2002).
 Lawyers’ Committee for Civil Rights Under Law, “Comments before the U.S. Commission on Civil Rights,” Apr. 9, 2002, p. 10. See generally 65 Fed. Reg. at 39,671.
In determining whether a recipient is in violation of Title VI or EPA’s implementing regulations, the Agency expects to assess whether the adverse disparate impact results from factors within the recipient’s authority to consider as defined by applicable laws and regulations.
Id. (emphasis added).
 Lawyers’ Committee/LDF letter, p. 24.
 Ibid., p. 22 (citing Milliken v. Bradley, 433 U.S. 267, 280–281 (1974) (federal law has supremacy over state law as indicated in the United States Constitution)); R.I.S.E. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff’d without opinion, 977 F.2d 573 (4th Cir. 1992) (civil rights law provides that all potentially adverse impacts on communities of color are essential to establishing whether disparate impacts exist).
 Higginbotham letter, p. 9.
 Ibid., p. 25.
 65 Fed. Reg. at 39,669–70 (citing 42 U.S.C. § 2000d-4a).
 Id. at 39,670–71 (citing the due process clause of the U.S. Constitution, which prohibits the federal government from engaging in intentional discrimination).
 Higginbotham letter, p. 9.
 Arizona Center for Law in the Public Interest, “Letter and Comments to EPA,” Aug. 28, 2000, p. 2, <http://www.epa.gov/civilrights/docs/t6com2000_066.pdf> (last accessed June 27, 2003).
 See ibid.
 65 Fed. Reg. at 39,653.
 Id. “It may focus on a spectrum of potential adverse impacts, such as that described in the analytical framework set forth in the Draft Revised Investigation Guidance, or may be more focused, such as the impact of a specific pollutant on nearby populations (e.g., a study regarding the impact of lead emissions on blood lead levels in the surrounding area).” Id.
 Higginbotham letter, p. 9 (EPA considers all pertinent information related to an investigation, including information submitted by recipients).
 Lawyers’ Committee/LDF letter, p. 41.
 Ibid., p. 42. See also Cole, “Comments on Draft Revised Guidance,” p. 28.
 Information relating to the Departments of Housing and Urban Development, Interior, and Transportation will be discussed later in this chapter.
 Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, interview, Jan. 17, 2002 (hereafter cited as Higginbotham January 2002 interview).
 Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act of 1999, Pub. L. No. 105-174, tit. III, § 214(a), 112 Stat. 2461, 2486 (1998); Higginbotham January 2002 interview; Marcia Coyle, “The EPA Braces to Clear Title VI Pileup,” National Law Journal, Oct. 15, 2001, p. A-12 (hereafter cited as Coyle, “EPA Braces”). See also Gail Ginsberg, chairperson, EPA Title VI Task Force, Testimony, February Hearing Transcript, p. 71 (“The EPA construed that prohibition from the Congress to extend also to the June 2000 draft investigative guidance. As a consequence, for a period of three years, commencing in October of ’98, the EPA could not act on most of the permit related complaints, Title VI complaints, pending before the agency.”).
 149 Cong. Rec. H707 (2003) (describes EPA’s budget for the fiscal year ending September 30, 2003); Kriz, “Coloring Justice.”
 Kriz, “Coloring Justice” (during a July 10, 2001 appropriations markup, $11.9 million was allotted for EPA’s environmental justice efforts, which was $2.7 million more than in FY 2001).
 U.S. Environmental Protection Agency, “Remarks of Governor Christine Todd Whitman, Administrator of the U.S. Environmental Protection Agency, at a Meeting of the EPA Senior Executive Service: Dulles, Virginia,” Office of the Administrator—Major Speeches Delivered by U.S. EPA Administrator Christie Whitman, May 31, 2001, <http://www.yosemite. epa.gov/administrator/speeches.nsf> (last accessed Nov. 9, 2002).
 Gail Ginsberg, chairperson, EPA Title VI Task Force, Testimony, February Hearing Transcript, p. 70.
 Ibid. (stating that “this jurisdictional review is conducted pursuant to EPA’s Title VI regulations, which are found at 40 C.F.R. Part 7”).
 Yasmin Yorker, external compliance team leader, U.S. Environmental Protection Agency, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Sept. 2, 2003 (EPA’s docket number for this complaint is IR-94-R5). As of September 2003, EPA was still investigating the Genesee Power Station case, which is in an active pending status. Ibid. See also Hurwitz and Sullivan, Using Civil Rights Laws, pp. 54–55 (describing how EPA expedited its review of the Select Steel case, as opposed to the Genesee Power Station complaint).
 Hurwitz and Sullivan, Using Civil Rights Laws, pp. 56–57.
 Gail Ginsberg, chairperson, EPA Title VI Task Force, Testimony, February Hearing Transcript, p. 71.
 Higginbotham letter, p. 10.
 Gail Ginsberg, chairperson, EPA Title VI Task Force, Testimony, February Hearing Transcript, p. 72 (the backlog consists mostly of permitting complaints, but there are also some that involve alleged discriminatory public participation processes and disproportionate enforcement).
 April Reese, “Enviro Justice: EPA’s Whitman Forms Task Force—Civil Rights Community Doubts Agency Commitment,” Greenwire, Aug. 27, 2001 (quoting Luke Cole).
 See generally ibid.
 Ibid. (quoting Sheila Foster). See also Coyle, “EPA Braces” (some civil rights advocates are concerned as to whether complainants are being treated equitably if the EPA reviews their complaints too quickly).
 40 C.F.R. § 7.120(d)(1)(i). OCR also has an identified time period for notifying permitting recipients of the status of Title VI investigations. Id. § 7.115. “Within 180 calendar days from the start of the compliance review or complaint investigation, the OCR will notify the recipient in writing by certified mail, return receipt requested, of: (i) Preliminary findings; (ii) Recommendations, if any, for achieving voluntary compliance; and (iii) Recipient’s right to engage in voluntary compliance negotiations where appropriate.” Id.
 Luke Cole, director, California Rural Legal Assistance Foundation, “EPA Accountability,” written submission to the U.S. Commission on Civil Rights, Washington, DC, Feb. 8, 2002, p. 1 (hereafter cited as Cole, written submission).
 U.S. Environmental Protection Agency, “Title VI Complaints Filed with EPA,” June 20, 2003, pp. 1–27, <www.epa. gov/ocrpage1/docs/t6csjune2003.pdf> (last accessed July 30, 2003) (hereafter cited as EPA, “Title VI Complaints Filed”). The 13 Title VI complaints that were filed with EPA by January 2002 and rejected were complaint 02R-01-R4 (an Alabama enforcement-related case); complaint 22R-99-R10 (an Oregon permitting case); complaint 02R-98-R4 (an Alabama case—activity was not stated in data); complaint 03R-98-R6 (an Arkansas case—activity not stated in data); complaint 15R-97-R4 (an Alabama permitting case); complaint 12R-97-R3 (a Virginia permitting enforcement case); complaint 03R-97-R9 (a California permitting case); complaint 02R-96-R9 (a California case involving District Industrial Emissions Reporting Rule 1210); complaint 01R-95-R2 (a Puerto Rico permitting case); complaint 01R-95-R6 (a Texas permitting enforcement case); complaint 05R-94-R4 (an Alabama case—activity was not stated in data); complaint 03R-94-R4 (an Alabama case—activity was not stated in data); and complaint 02R-94-R4 (an Alabama permitting case). EPA’s disposition of the 13 complaints occurred either during the same month the complaints were filed or in the next month. Ibid.
 Cole, written submission, p. 1.
 Ibid. See generally EPA, “Title VI Complaints Filed,” p. 21 (the complaint identification number is 02R-95-R9).
 Cole, written submission, p. 1.
 EPA, “Title VI Complaints Filed,” p. 21.
 Cole, written submission, p. 1; EPA, “Title VI Complaints Filed,” p. 8 (complaint 26R-99-R10). Other alleged recipients included the Port of Portland; Clatsop, Columbia, and Multnomah Counties, Oregon; and Pacific, Wahkiakum, Cowlitz, and Clark Counties, Washington. Ibid.
 EPA, “Title VI Complaints Filed,” p. 8.
 See ibid., p. 8 (in January 2002, the complaint was withdrawn, while EPA dismissed the case and closed the complaint file).
 See Cole, written submission, p. 1.
 Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, Testimony, February Hearing Transcript, p. 65.
 EPA, “Title VI Complaints Filed,” pp. 1–27. OCR identifies each complaint with a number when it is received. This identification number “indicates the order in which the complaint was received that year (e.g., the first complaint received each year is number 1)” and if the complaint was based on race, national origin, or disability. Ibid., p. 26. Thus, in several instances, there is more than one complaint per complainant and alleged permitting recipient(s). The total number of complaints for each complainant and alleged permitting recipient(s) is not included for purposes of this discussion, and thus the numbers of actual complaints are undercounted in Tables 1 and 2.
 “Accepted” means the complaints met the regulatory requirements for an investigation under 40 C.F.R. pt. 7 and were accepted for investigation. “Under Review” means complaints for which no decision has yet been made to reject, accept for investigation, or refer to another federal agency. “Informally Resolved” means complaints that have reached a documented resolution by informal voluntary negotiations, including alternative dispute resolution (ADR). “Rejected” refers to complaints not accepted for investigation because they did not meet the regulatory requirements of 40 C.F.R. pt. 7 (e.g., no recipient of EPA financial assistance; complaint filed more than 180 days after the alleged discriminatory act). “Dismissed” refers to complaints accepted for investigation, but later dismissed and the files closed. “Suspended” means the complaints are currently in litigation concerning matters related to their Title VI complaint. “Referred” denotes complaints received but referred to another federal agency because that agency is the grantor or has subject-matter jurisdiction. EPA, “Title VI Complaints Filed,” pp. 26–27.
 EPA, “Title VI Complaints Filed,” pp. 1–27. One Title VI complaint that involved siting as the primary activity was also included in the total of 136 cases. This complaint (02R-97-R6) was filed with EPA in February 1997 and was eventually not accepted for investigation in May 1997. In this case, the recipient was Texas A&M University, and the complainants were the Residents Opposed to Pigs and Livestock, who objected to the construction of a large animal complex in Texas. Ibid., p. 19. In addition to permitting, other Title VI activities included asbestos removal, plan approvals, public hearings, pipeline expansion/replacement, zoning, public complaint process, compliance with environmental programs, enforcement, and cleanup. Ibid., pp. 1–27.
 Ibid. See also Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, Pub. L. No. 105-276 (H.R. 4194), 112 Stat. 2461, 2496, tit. III (1998) (contains a rider provision preventing EPA’s investigation and disposition of Title VI complaints, as of the date of the act’s enactment).
 EPA, “Title VI Complaints Filed,” pp. 1–27.
 See generally Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, Pub. L. No. 105-276 (H.R. 4194), 112 Stat. 2461, 2496, tit. III (1998). But see Higginbotham letter, p. 10 (“the rider applied to complaints filed before and during its existence, i.e., all complaints concerning adverse disparate impacts from environmental permitting filed before passage of EPA’s FY 2002 appropriations”).
 40 C.F.R. § 7.120(a).
 Karen Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, interview, July 25, 2003 (hereafter cited as Higginbotham July 2003 interview). See generally EPA, “How to File a Title VI Complaint,” Civil Rights, <http://www.epa.gov/cgi-bin/epaprintonly.cgi> (last accessed July 31, 2003); 40 C.F.R. § 7.120(b)–(d) (describes how to file a Title VI complaint with EPA and the complaint investigation process).
 U.S. Environmental Protection Agency, Response to the Commission’s Interrogatory Question 4, April 2002 (hereafter cited as EPA, Response to Interrogatory Question).
 40 C.F.R. §§ 7.120(a), (b)(1), (b)(2). “[T]he complaint must be filed within 180 calendar days of the alleged discriminatory acts unless OCR waives the lime limit for good cause.” Id. § 7.120(b)(2). See also Higginbotham July 2003 interview.
 Higginbotham letter, p. 10.
 Higginbotham July 2003 interview.
 Higginbotham letter, p. 10.
 40 C.F.R. § 7.125(b).
 See id.; Higginbotham July 2003 interview.
 40 C.F.R. § 7.125(b).
 Id. § 7.125(a). See also Higginbotham July 2003 interview. EPA worked jointly with the Department of Defense (DOD) on a complaint involving the closure of an air force base. DOD examined a public notification issue, while EPA was concerned with the placement of hazardous material on the property. The two agencies met to discuss these issues, in addition to sponsoring community meetings to review these concerns. Ibid.
 28 C.F.R. § 42.413(a)(1) (2002). See also id. § 42.413(a)(2) (one of the agencies must also be designated as the lead agency for Title VI compliance purposes).
 Higginbotham July 2003 interview.
 Linda Fisher, deputy administrator, U.S. Environmental Protection Agency, Testimony, February Hearing Transcript, p. 93.
 Susan Bruninga, “EPA Criticized by Senators for Cuts to Clean Water State Revolving Fund,” Environmental Reporter (BNA), vol. 34, no. 13, Mar. 28, 2003, p. 710.
 EPA, Response to Interrogatory Question 10; U.S. Commission on Civil Rights, Ten Year Check-Up: Have Federal Agencies Responded to Civil Rights Recommendations? Volume III: An Evaluation of the Departments of Agriculture and the Interior, the U.S. Environmental Protection Agency, and the Small Business Administration, June 12, 2003, <http://www.usccr.gov/pubs/10yr03/10yr03.pdf> (last accessed July 31, 2003) (hereafter cited as USCCR, Ten-Year Check-Up: Volume III).
 Higginbotham letter, p. 11.
 EPA, Response to Interrogatory Question 2.
 See ibid.
 Ibid. The use of this approach is due to the limited number of OCR applicants with direct Title VI or Title VI-related experience.
 EPA, Response to Interrogatory Question 2.
 EPA, Response to Interrogatory Question 11.
 EPA, Response to Interrogatory Question 13.
 For example, HUD’s regulations provide that it shall “from time to time” review the practices of its funding recipients. 24 C.F.R. § 1.7(a) (2003).
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 188.
 Ibid. Mr. Brenman stated:
A major instrument for this public participation are the efforts by the Metropolitan Planning Organizations [MPOs] to consider their local demographics, the transportation needs of their communities, and the benefits and burdens of transportation projects and planning on those communities. These MPOs . . . are responsible for administering a continuing and comprehensive, and cooperative planning process in urbanized areas. FTA and the Federal Highway Administration’s joint instructions concerning Title VI and environmental justice and certification reviews of these MPOs illustrate the considerations that have been incorporated in this process.
Ibid., pp. 188–89.
 U.S. Department of Transportation, Response to the Commission’s Interrogatory Question 5, April 2002 (hereafter cited as DOT, Response to Interrogatory Question) (the Coast Guard was under the jurisdiction of the Department of Transportation during the time of the Commission’s hearing in February 2002).
 Michael Freilich, national external program manager, Office of Civil Rights, Federal Aviation Administration, U.S. Department of Transportation, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 26, 2003, p. 1 (hereafter cited as Freilich e-mail).
 Ibid., p. 2
 See generally Southeast Queens Concerned Neighbors, Inc. and the Committee for Better Transit, Inc. v. FAA, No. 99-4173, 2000 U.S. App. LEXIS 25697, at *1 (2d Cir. Oct. 12, 2000).
 2000 U.S. App. LEXIS 25697, at *1.
 Id. at *2. See generally National Environmental Policy Act of 1969, 42 U.S.C. § 4332(C)(i), (ii) (1994).
 2000 U.S. App. LEXIS 25697 at *15.
 Freilich e-mail, p. 1.
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 15, 2003 (hereafter cited as Brenman Aug. 15, 2003, e-mail). See also Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 26, 2003, p. 1 (hereafter cited as Brenman Aug. 26, 2003, e-mail) (stating that “generally, it appears that DOJ attempts to refer complaints to all federal agencies that have jurisdiction over the issue and recipient mentioned in the incoming complaints”).
 Brenman Aug. 26, 2003, e-mail, p. 1. Complainants are also reminded that their complaints must meet the timeliness requirements for filing a Title VI complaint, in order to preserve their right to redress grievances. Ibid.
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, telephone interview, July 25, 2003 (hereafter cited as Brenman interview).
 Brenman Aug. 26, 2003, e-mail, p. 1.
[The Federal Highway Administration]’s Civil Rights Office writes investigative plans and implements them. In the event expert advice is needed regarding a specific program, disinterested specialists (not involved in the matter which gave rise to the allegations of discrimination) are enlisted to provide advice, clarification and interpretation of requirements to allow the investigator to make informed decisions. FHWA’s recipients are responsible for complying with Title VI and related nondiscrimination statutes. FHWA’s program offices have the primary responsibility to ensure nondiscrimination in the programs and functions for which they are responsible. In the event anyone affected by those programs and functions believes they have been subjected to discrimination, they have the right to file a complaint that will be investigated/resolved by OCR.
Ibid., p. 2.
 49 C.F.R. § 21.11(b) (2002).
 Jennifer L. Dorn, administrator, Federal Transit Administration, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 180. See also Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 189.
 49 C.F.R. § 21.11(c).
 Id. § 21.11(d)(1).
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 189; Brenman Aug. 15, 2003, e-mail.
 Jennifer L. Dorn, administrator, Federal Transit Administration, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 180.
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 189; Brenman Aug. 15, 2003, e-mail.
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, pp. 202–04; Brenman Aug. 15, 2003, e-mail.
 Brenman Aug. 26, 2003, e-mail, p. 2.
 Brenman interview.
 Ibid. See generally 49 C.F.R. § 21.11(b) (complainant has no later than 180 days after the date of the alleged discrimination to file a Title VI complaint with DOT).
 See id. §§ 21.11(b), 21.15(e).
 Brenman interview.
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, p. 189.
Sometimes these complaints reflect longstanding controversies in local land use, and may result in serious . . . and fundamental community debates. There are also few legal precedents to follow in environmental justice cases. This is very much an evolving area of the law, and we encourage the resolution of problems at the most local level possible. We have opened discussions with our department’s senior dispute resolution counsel, with the environmental justice interagency working group, and with the Environmental Conflict Resolution Institute, to assess the desirability of using alternative dispute resolution mechanisms in environmental justice cases.
Ibid., p. 190.
 Brenman Aug. 15, 2003, e-mail.
 Brenman Aug. 26, 2003, e-mail, p. 2.
[DOT’s OCR] recommended the additional level of review in the report of a review of FHWA’s civil rights program management, and in memos transmitting DOJ’s review of FHWA’s Title VI program management. The sense of the approach is reinforced informally, in discussions of specific cases, and at scheduled meetings of DOT operating administration’s civil rights directors. In addition, DOJ’s Title VI training, presented by [DOT’s OCR] and several other DOT modes at their investigative training and conferences, clearly articulates the advisability of having the operating administration’s legal counsel’s office review decisions.
Ibid., p. 3.
 Ibid., p. 2.
 Ibid. Brenman Aug. 15, 2003, e-mail.
 U.S. Department of Transportation, “U.S. Department of Transportation 2003 Budget in Brief—Federal Aviation Administration,” Feb. 4. 2002, <http://www.dot.gov/bib/faa.html> (last accessed Nov. 11, 2002) (the agency attributes the reduction to security responsibilities being shifted from the FAA to the Transportation Security Administration by 2003).
 U.S. Department of Transportation, “U.S. Department of Transportation 2003 Budget in Brief—Federal Highway Administration,” Feb. 4. 2002, <http://www.dot.gov/bib/fhwa.html> (last accessed Nov. 11, 2002).
 U.S. Department of Transportation, “U.S. Department of Transportation 2003 Budget in Brief—Federal Transit Administration,” Feb. 4, 2002, <http://www.dot.gov/bib/fta/html> (last accessed Nov. 11, 2002).
 Brenman Aug. 15, 2003, e-mail; Brenman Aug. 26, 2003, e-mail, p. 2 (“If . . . allegations deal with matters that might occur if a project or program is implemented in a way the complainant fears, but no harm has been suffered that can be investigated, the matter is forwarded by the FHWA Civil Rights Office to the appropriate FHWA program office (usually Environment and Planning since transportation plans and project development are within its domain) for consideration in the public involvement process.”).
 DOT, Response to Interrogatory Question 14. See Brenman Aug. 15, 2003, e-mail (“The FHWA’s Office of Civil Rights, in concert with its Office of Chief Counsel is responsible for referring allegations not ripe for investigation to responsible offices, for informally resolving or investigating complaints of discrimination, and for determining and obtaining compliance with Title VI and related nondiscrimination statutes.”).
 DOT, Response to Interrogatory Question 14.
 Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, Testimony, February Hearing Transcript, pp. 204–05.
 E. Melodee Stith, director, Office of Equal Opportunity, U.S. Department of the Interior, “Equal Opportunity Directive No. 1998-13,” Internal Civil Rights Complaint Processing Procedures, <http://www.doi.gov/diversity/doc/doc/eod98_13. htm> (last accessed Aug. 1, 2003).
 U.S. Department of the Interior, Response to the Commission’s Second Set of Interrogatories, Question 5, August 2003 (hereafter cited as DOI, Response to Second Set of Interrogatories, Question).
 U.S. Department of the Interior, Response to the Commission’s Interrogatory Question 3, May 2002 (hereafter cited as DOI, Response to Interrogatory Question); DOI, Response to Second Set of Interrogatories, Question 5.
 DOI, Response to Interrogatory Question 3; DOI, Response to Second Set of Interrogatories, Question 5.
 DOI, Response to Interrogatory Question 3; DOI, Response to Second Set of Interrogatories, Question 5.
 DOI, Response to Interrogatory Question 3; DOI, Response to Second Set of Interrogatories, Question 5 (it could not be determined whether DOI was serving as the primary investigator in the New Mexico case).
 43 C.F.R. § 17.6(b) (2002). See generally id. § 17.1.
 Deborah Charette, assistant solicitor, Branch of Personnel Litigation and Civil Rights, Office of the Solicitor, U.S. Department of the Interior, facsimile to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 20, 2003, p. 6 (hereafter cited as Charette facsimile).
 Ibid. (stating that if a complaint is filed against a state park program, the complaint will be investigated and resolved by the National Park Service, since the park service provides federal funding to the park program).
 43 C.F.R. § 17.5(b).
 Charette facsimile, p. 2.
 43 C.F.R. § 17.6(c).
 Charette facsimile, p. 3.
 Ibid., pp. 3–4.
 Ibid., p. 4 (stating that other mission-related responsibilities include those programs that relate to historic preservation, water reclamation projects, and reclamation issues).
 See ibid., p. 3.
 43 C.F. R § 17.6(d).
 Id. § 17.7(a).
 Charette facsimile, p. 3.
 USCCR, Ten-Year Check-Up: Volume III, p. 93.
 Ibid., p. 94.
 Ibid., p. 95.
 Carole Wilson, associate general counsel, Office of Litigation, U.S. Department of Housing and Urban Development, Responses to Follow-Up Questions for Title VI Chapter, Aug. 26, 2003 (hereafter cited as Wilson Aug. 26, 2003, e-mail) (stating that most complaints are filed with the funding agency).
 U.S. Department of Housing and Urban Development, Response to the Commission’s Interrogatory Question 42, April 2002 (hereafter cited as HUD, Response to Interrogatory Question).
 See 24 C.F.R. § 103.5 (2003); Carole W. Wilson, associate general counsel, Office of Litigation, U.S. Department of Housing and Urban Development, Responses to Follow-Up Questions for Title VI Chapter, Aug. 4, 2003.
 HUD, Response to Interrogatory Question 42.
 24 C.F.R. § 1.7(b) (2003).
 Id. § 1.7(c).
 Id. § 1.7(d)(1).
 Id. § 1.8(a); Carole W. Wilson, associate general counsel, Office of Litigation, U.S. Department of Housing and Urban Development, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 15, 2003, p. 1.
 24 C.F.R. § 1.8(c)(1)–(4).
 HUD, Response to Interrogatory Question 20.
 24 C.F.R. § 1.7(d)(2).
 Wilson Aug. 26, 2003, e-mail.
 HUD, Response to Interrogatory Question 8.
 Dr. David Jacobs, director, Office of Healthy Homes and Lead Hazard Control, U.S. Department of Housing and Urban Development, Testimony, February Hearing Transcript, pp. 126–27; HAC News, “Information on Rural Low-Income Housing Issues,” Feb. 21, 2003, <http://www.ruralhome.org/pubs/hacnews/2003/0221.htm> (last accessed Aug. 20, 2003).
 HAC News, “Information on Rural Low-Income Housing Issues.”
 Dr. David Jacobs, director, Office of Healthy Homes and Lead Hazard Control, U.S. Department of Housing and Urban Development, Testimony, February Hearing Transcript, p. 127.
 HUD, Response to Interrogatory Question 9.
 532 U.S. 275 (2001).
 Sue Briggum, director of environmental affairs, Waste Management, Inc., testimony before the U.S. Commission on Civil Rights, hearing, Washington, DC, Jan. 11, 2002, official transcript, p. 174 (hereafter cited as January Hearing Transcript).
 Ibid., pp. 174–75.
 Elizabeth Teel, deputy director, Environmental Law Clinic, Tulane Law School, January Hearing Transcript, p. 158.
 USCCR, Enforcement Effort, p. 593.