Righting Civil Wrongs
From California to Michigan, low-income communities of color have been waiting years for the U.S. Environmental Protection Agency to take a stand against environmental racism.
Since This Story Was First Published: On Mar. 30, 2018, a federal court ruled that EPA violated the law by waiting a decade or more to investigate civil rights complaints filed by community groups across the country. Under pressure from the lawsuit, the agency finally started to pay attention to these civil rights complaints, but—in most cases—ended up conducting only cursory investigations and closed the book on the cases. “EPA must now secure real changes and ensure civil rights compliance by states and regional authorities that receive EPA funding,” said Earthjustice attorney Suzanne Novak. “How long do communities overburdened with polluting facilities have to wait for justice?” Read more.
The first thing you notice is the vultures, says Ronald Smith.
They roost everywhere in his hometown—on neighbors’ houses, in the trees, in front yards—lured by the putrid smell of 65 acres of rotting garbage. It’s getting unbearable, Smith says. “You walk out of the house, and you’re hit with that odor. You come home, and you’re hit with that odor again.”
Smith, 63, is a pastor and one of a new generation of activists in Tallassee, Alabama (population 4,800). In the 1990s, his parents Ann and Thomas protested the state’s decision to open and later expand a massive landfill in the heart of their historically African American neighborhood. Smith got involved in 1999 and has reinvigorated the movement.
Huge trucks speed down tiny rural roads. Residents worry about air and water pollution from decaying waste. Smith says the landfill has gobbled up acreage from black homeowners who have died or moved away, further eroding community wealth and security. A decade ago, the landfill’s then-owner tried to buy the Smith family’s land. His father refused.
“The last comment the man made was, ‘You’re not going to live forever,’” Smith says. “That’s the limit most of these small communities face and these companies know it.”
The Law and the Landfill
Under Title VI of the Civil Rights Act of 1964, agencies that get federal money can’t discriminate on the basis of race. Discrimination doesn’t have to be intentional; it includes any decision that has an unjustified, unequal impact on a particular racial group.
One state agency that draws from federal coffers is the Alabama Department of Environmental Management, which gave a permit to the owners of Stone’s Throw to operate the landfill.
Communities saddled with undue pollution have just one option to enforce the Civil Rights Act: file a complaint with the U.S. Environmental Protection Agency, which the Smiths and their neighbors did. Should the EPA find discrimination, it could withhold money from ADEM until the department forces Stone’s Throw to clean up its act.
Agency rules say the EPA must determine whether or not there’s discrimination within 180 days of receiving a complaint. Residents of Tallassee have been waiting 12 years.
Earthjustice has sued the EPA for failing to investigate whether the landfill in Tallassee violates residents’ civil rights. As part of the same lawsuit, Earthjustice is also fighting on behalf of communities in Flint, Michigan; Pittsburg, California; Beaumont, Texas; and Chaves County, New Mexico, where EPA discrimination complaints have languished for as long as two decades.
A scathing report from NBC and the Center for Public Integrity shows that these delays are far from exceptional. The report found the EPA’s Office of Civil Rights takes one year on average to address complaints and that in the office’s 22-year history of reviewing nearly 300 complaints, the agency has never made a single finding of a civil rights violation. Nine in every 10 complaints are rejected or dismissed.
“Every day states and regional authorities grant permits that only reinforce the isolation and degradation of low-income communities of color, and that the EPA has never found any to be discriminatory is really troubling,” says Marianne Engelman Lado, the Earthjustice attorney spearheading the five-case lawsuit. Velveta Golightly-Howell, head of the EPA's Office of Civil Rights, told NBC that “there have been some problems in the past” resolving Title VI complaints.
According to Engelman Lado, well-meaning EPA staffers are trapped by a culture that doesn’t make resolving civil rights cases a core part of the agency’s mission or mindset. She also says the EPA delegates its responsibilities under environmental laws such as the Clean Air Act to state governments and then becomes reluctant to question how states award permits for new projects.
At least 17 EPA civil rights complaints are still outstanding, including the five covered by the Earthjustice suit. Filing a complaint with the EPA doesn’t stop an action from happening, and in four of the five cases the action that sparked the original complaint—permitting a new power plant or expanding a refinery, for example—has already been carried out. The EPA could still pressure state agencies to alleviate the effects of these landfills, coal ash dumps or smokestacks on the families nearby, but residents have grown weary of waiting.
Engelman Lado, who has spent her entire legal career fighting for racial justice, says Title VI is one of the few enforceable civil rights laws that cover environmental actions. It’s a powerful tool attorneys use to hold government agencies accountable for the downstream impacts of decisions they make that lead to financial and health problems in politically disenfranchised neighborhoods.
“We have partners all across the country who live in overburdened communities and they’re being dumped on,” Engelman Lado says. “No one would put this kind of facility—whether it’s a dump or an incinerator—in a middle class white community without health protections.”
Of Hogs and Men
One type of industrial facility rivals all the rest for a truly vile community experience: controlled animal feeding operations, better known as factory farms. Factory-scale pig farms housing thousands of animals dot the landscape of southeastern North Carolina where slaves historically worked on tobacco plantations and where African American communities remain.
Farmers flush gallons of hog feces and urine into open pits lined only with clay and then spray the “liquid manure” onto nearby fields. The waste leaches out of the open pits and flows as run-off from the fields, polluting nearby waterways. When it’s sprayed, the fecal matter also drifts as mist onto neighboring homes, clinging to hair and clothes and forcing residents indoors.
“People can’t have cook-outs, or sit out on their porch, or invite friends over or hang laundry outside because of the odors and the flies that follow these operations,” says Gray Jernigan, a former staff attorney at the Waterkeeper Alliance, one of the organizations partnering with North Carolina residents to fight the impacts of factory farms.
Studies at the University of North Carolina, Chapel Hill and elsewhere confirm that communities with larger nonwhite populations are home to more factory farm-raised hogs and that living near an industrial hog farm can lead to eye irritation, nausea, breathing troubles, high blood pressure and exposure to antibiotic-resistant bacteria from fecal waste caused by the hogs’ steady diet of low-dose antibiotics.
Nutrients in the animal waste also feed the growth of toxic blue-green algae that starve waterways of oxygen, leading to massive fish kills. This algae, which is linked to neurological problems in humans, has been found near intake valves on the Cape Fear river that supply drinking water to half a million people in North Carolina. So people living near large-scale hog farms get hit twice—once with the stench and filth of the manure itself and again with potentially contaminated water.
“Impacted community members have repeatedly voiced their concerns to the state, but their complaints have really fallen on deaf ears,” Jernigan says. “Clean water is a civil right that’s not limited to wealthy people in cities.”
Community outcry, along with several major hog waste spills in the 1990s, led to a moratorium in North Carolina on new farms that use open waste pits, but the existing farms were not required to clean up their facilities. With the help of Earthjustice and other groups, residents filed a complaint with the EPA arguing that the state’s general permit, which allows more than 2,000 factory hog farms to operate in the area, doesn’t do enough to protect human health and the environment.
The EPA agreed to investigate in late February 2015. The North Carolina case is too recent to be a part of Earthjustice’s five-case lawsuit, but Earthjustice, the Waterkeeper Alliance, the North Carolina Environmental Justice Network and Rural Empowerment Association for Community Help (REACH) continue to push the EPA to act.
Court and Community, Side by Side
As for the older civil rights cases, Engelman Lado says she hopes the court will order the EPA to decide if there has in fact been discrimination against residents in Tallassee and the other towns she represents. But a court order is only the smallest of first steps.
If the EPA finds discrimination, it has to first ask the state agency at fault to voluntarily fix the problem. If the agency doesn’t, the EPA can hold back federal funds. Ultimately, Engelman Lado hopes agencies such as ADEM will realize it’s in their best interest to include community members at the beginning of a major project’s permitting process to avoid complaints and lawsuits like these in the future.
Engelman Lado says what would most benefit Tallassee and the other four communities now are practical steps to monitor the industrial sites, clean up pollution, enforce safety standards and expand access to healthcare. She hopes the EPA will shorten the tedious investigation process by offering a plan to work with ADEM and other agencies to do what needs to be done: pest control, water quality testing, new access roads and a good faith effort to “make these communities whole.”
“We’re more than happy to talk to the EPA about creative solutions instead of having them spin their wheels investigating a 20-year-old complaint. In the years since complaints were filed, these communities have been exposed to toxic substances and they need resources to address their effects,” Engelman Lado says.
Ronald Smith is pragmatic about what this legal fight will and won’t achieve. He knows Stone’s Throw is probably here to stay. Advanced Disposal, which now owns the landfill near his property, submitted a plan to ADEM to nearly double the site’s disposal area to 124 acres. It was approved in May 2015. The landfill has space for up to 1,500 tons of trash a day through 2053. However, the permit for the entire Stone's Throw site is up for renewal this December, which should make the owners more willing to sit at the negotiating table with community members.
“If they could fix the infrastructure—the roads, the bridges, the speed limits—and do the self-monitoring they need to do. … If ADEM would enforce the guidelines and make Advanced Disposal cover up their refuse everyday like they’re supposed to, I think that would solve the biggest part of our problem,” Smith says.
Smith isn’t waiting for ADEM and the EPA to act. He’s organizing community meetings to help people who need it now, including the school bus driver who has to pull onto the shoulder of Washington Boulevard every morning to avoid being hit by waste trucks breaking the speed limit.
“From a spirit standpoint, folks are kind of beat-down and don’t feel like they can talk to their government or do anything about folks running over them,” Smith says. “They really can’t afford the legal help, but when Earthjustice stepped up to the plate, people started coming out.”
He says that when community meetings began and Earthjustice attorneys and the press started to take an interest in Stone’s Throw, the landfill owners began to cover the mounds of garbage, giving residents a reprieve from the noxious odor. Traffic to the landfill has also slowed. Residents are concerned about how long this new approach will last.
And still, there’s the flock of slowly circling buzzards.
By Heather Kathryn Ross.
Published October 30, 2015.