Chapter 3: Title VI and Environmental Justice

Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice

Title VI of the Civil Rights Act of 1964 provides a statutory basis for the nondiscrimination protections of the Constitution,[1] and is the primary mechanism of seeking relief from discriminatory activity in federally funded programs and activities.[2] 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.”[3] 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.[4]

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.[5] 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.[6] 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.[7] Additionally, federal agencies establish procedures for investigating and reviewing complaints of racial discrimination that are forwarded to their funding recipients.[8]

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.[9] 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.[10] 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.[11] 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.”[12] This regulation later became effective in August 1973.[13] 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.[14] 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.[15]

Despite creating comprehensive regulations, EPA did not enforce its Title VI regulations against state and local recipients of federal funding until 1993.[16] 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.[17] Nevertheless, communities continued filing disparate impact complaints, despite EPA’s failure to enforce its Title VI regulations.[18]

The Office of Civil Rights (OCR), formerly known as the Office of Equal Opportunity, is responsible for addressing Title VI complaints and enforcement issues.[19] Through this office, allegations of discrimination in violation of the agency’s Title VI regulations are reviewed and investigated.[20] 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.[21] During this period, 58 Title VI complaints were filed with the agency, including 50 challenging state or local permitting decisions.[22]

As of July 1998, 31 of these complaints had been rejected, 15 were accepted for investigation, and 12 were still pending acceptance.[23] 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.[24]

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.[25] EPA’s Interim Guidance also established parameters for filing a properly pleaded Title VI complaint.[26] 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.[27]

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.[28]

The Interim Guidance addressed Title VI complaints alleging disparate impact resulting from the funding recipient’s permitting program.[29] The five-step disparate impact analysis adopted by EPA in the Interim Guidance provides for:

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.[31]

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.[32] 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.[33] 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.[34]

In the justification phase of a disparate impact analysis, a mitigation plan can be submitted for consideration.[35] If EPA finds that the permit violates Title VI, the plan is evaluated by OCR and other EPA experts.[36] 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.[37] 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.[38]

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.[39] These groups contend that EPA’s Interim Guidance removes their discretion in the decision-making process.[40] 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.[41] 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.[42]

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.[43] 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.”[44] Mr. Lami added that there was no legal foundation for combining environmental and employment law concepts.[45] 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.”[46]

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.[47]

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.[48] 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.[49]

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.[50] 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.”[51]

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.[52] Representative Knollenberg, a member of the House Appropriations Committee, was responsible for initially and repeatedly attaching the rider to EPA’s budget appropriations.[53] 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.[54] 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:

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.[56] In fact, the Bush administration’s environmental strategies have been characterized as pro-industry and anti-regulation of pollution and environmental hazards.[57] 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,[58] which some contend would ultimately increase air pollution levels.[59] 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.[60] 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.”[61] 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.[62] 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.[63] 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.[64] EPA accepted the Shintech and Select Steel[65] 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.[66] 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.[67] 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.[68] 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.[69]

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.[70] 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.[71] 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.[72]

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.[73] 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.[74]

OCR accepted the complaint for investigation, finding that the disparate impact claims “deserve[d] serious attention.”[75] 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.”[76] 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.[77]

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.[78]

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.[79] 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.[80] 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.[81] 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.[82]

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.[83] 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.[84]

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:

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.”[86] 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.”[87]

EPA expedited its review of Select Steel and rendered its decision on October 30, 1998.[88] 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.[89] EPA also found that the permit satisfied the National Ambient Air Quality Control Standards for ozone and lead.[90] 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.[91]

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.”[92]

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.[93] 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.[94] 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.[95]

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.[96] Environmental advocates observed that minority communities would still be disproportionately affected even if facilities satisfy these environmental regulations.[97] 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.[98] 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.[99] 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:

In response to the Science Advisory Board’s recommendations, EPA began modifying its disparate impact methodology.[102] 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.[103] The Title VI Implementation Committee recommended that EPA:

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:

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.

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.[106] 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.[107] The guidance is not mandatory.[108] 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:

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.[110] Specifically, the comprehensive approach integrates all or most of the Title VI activities in the Draft Recipient Guidance.[111] 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.[112] 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.[113]

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.”[114] This concept encourages recipients to work collaboratively with affected communities to reduce or eliminate adverse disparate impact in particular geographic areas.[115] 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.[116] 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.[117]

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.[118] 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.”[119]

OCR closes an area-specific agreement investigation if it determines that the agreement eliminates or reduces an existing adverse disparate impact.[120] 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.[121] 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.[122]

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.[123] 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.[124] 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.[125] 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.[126] 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”:

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.[128]

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).[129] EPA strongly supports ADR as a means of reducing Title VI administrative complaints and managing its complaint caseload.[130] 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.[131] 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.[132]

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.[133]

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.[134] 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.[135] 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.[136] Alternative dispute resolution in the environmental context is discussed more specifically in Chapter 5.

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.[137] 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.[138] It also explains how OCR determines if a permitting decision creates objectionable adverse impacts and judges the recipient’s efforts to diminish them.[139] 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.[140]

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.[141]

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.[142] 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.[143] Additionally, the Draft Revised Investigation Guidance explains the method used to identify and determine the characteristics of the affected population.[144] 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.[145]

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.[146] 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.[147] Industry representatives contended that the guidelines allowed EPA to retain excessive discretion in determining issues that were critical elements in complying with Title VI.[148] 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.[149] 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.[150] 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.[151] 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,”[152] 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.”[153]

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.”[154] 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.”[155] 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:

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:

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.[158] 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.[159] 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.[160] The Lawyers’ Committee/LDF then cited the Civil Rights Restoration Act of 1988,[161] 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.[162] 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.[163] 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.[164]

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.[165] According to the Golden Gate University School of Law’s Environmental Law and Justice Clinic:

EPA does not dispute that neither its Title VI regulations nor the guidance grants the agency the authority to adopt such a provision.[167] 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.[168] 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.[169] 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.[170] 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.[171] This approach by the states, it is argued, violates the supremacy clause of the U.S. Constitution and federal civil rights laws.[172]

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.[173] The agency does not dispute that there is variance between states on what pollutants and impacts they have “authority to consider.”[174]

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.[175]

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.”[176] 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.[177] 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.[178] 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.[179] 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.[180]

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.[181] 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.[182]

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.[183] 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.[184]

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.[185] 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.[186] 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.[187]

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.[188] 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.

Despite acknowledged obligations to address Title VI complaints in a timely manner, EPA accumulated a backlog of Title VI complaints from 1998 to 2001.[189] 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.[190] EPA’s appropriations bill for FY 2002, however, did not include this restriction.[191] Instead, the Bush administration’s proposed FY 2002 budget for EPA allocated additional funds to address pending Title VI complaints.[192]

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.[193] 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.[194]

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,[195] and 45 complaints were under review to determine whether they should be accepted for investigation, rejected, or referred to another agency for action.[196]

As of January 31, 2002, the backlog had been reduced from 66 to 42 complaints.[197] Subsequently, by the time of the Commission’s hearing on February 8, 2002, the case backlog was reduced to 41 complaints.[198] Of these 41 cases, 34 were then identified as being acceptable for investigation.[199] 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.[200] 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.[201] 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.[202] As recently as 2001, the Genesee Power Station facility was still operational and reportedly discharging pollutants into a predominately African American community.[203]

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.[204] 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.[205] According to EPA, the Title VI Task Force will not eliminate the accumulated complaints until some time in early 2004.[206]

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.”[207] 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.[208] 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.”[209] 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.

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.[210] 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.[211] None of the 13 complaints processed within the 20-day window were accepted for investigation.[212] All were rejected because EPA assessed that they did not meet the agency’s regulatory requirements.[213]

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.[214] 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.[215] 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.[216] EPA did not decide to accept the case for investigation until July 2001, six years after it was filed with the agency.[217] In April 2003, the agency partially dismissed the complaint.[218]

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.[219] 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.[220] EPA did not decide whether to allow the complaint to remain open for investigation until January 2002.[221] A decision that should have been reached within 20 days was not made for more than two years.[222]

From 1993 to February 2002, OCR received an estimated 124 Title VI complaints.[223] Of these complaints, 83 alleged adverse disparate impact for environmental permitting or discrimination in the permitting process.[224] 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.[225] 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
Rejected	75
Dismissed	26
Accepted	16
Suspended	7
Under review	5
Partially dismissed	3
Informally resolved	2
Referred to another federal agency	2
Total	136
Source: U.S. Environmental Protection Agency, “Title VI Complaints Filed with EPA,” June 20, 2003.[226]

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.[227]

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
Rejected	39
Dismissed	20