After years of ineffective enforcement of civil rights laws, the U.S. Environmental Protection Agency’s External Civil Rights Compliance Office found that agencies in three states tasked with enforcing environmental laws should take steps to comply with civil rights requirements.

Two of three cases were part of an unreasonable delay lawsuit filed by Earthjustice in 2015 on behalf of five communities around the country whose cases had languished at EPA.

In one of those cases, a discrimination complaint filed in 1992 involving the placement of a wood-burning power plant in a black neighborhood in Flint, Mich., the EPA stated in a letter dated Jan. 19 that “the preponderance of evidence supports a finding of discriminatory treatment of African-Americans by MDEQ.”  This is only the second finding of discrimination that EPA has made in its history.

Under Title VI of the Civil Rights Act of 1964, no public or private entity receiving federal funds can discriminate.  EPA regulations make clear that recipients of federal funds can’t take actions that have a  disparate impact on the basis of race, color or national origin if those impacts can be avoided.

The EPA found substantial evidence that the Michigan Department of Environmental Quality engaged in discrimination in the public participation process for a permit issued in the early 1990s to operate the Genesee Power Station in Flint, Mich. But the agency also said MDEQ failed to establish safeguards to guarantee compliance with nondiscrimination laws.

The EPA recommends that MDEQ implement a policy to guarantee public participation and involvement; implement a system for receiving and responding to environmental complaints; and post notice to advise the public of nondiscrimination laws and the policies and process for filing a discrimination complaint.

In a separate civil rights complaint filed in 2005 over the alleged discriminatory siting of a hazardous waste facility in Chaves County, N.M., the EPA entered into to an informal resolution agreement with the New Mexico Environment Department (NMED).

In that case, community residents accused NMED of failing to examine disparate impacts on the basis of race, color or national origin; failing to provide effective means of public participation for people with limited-English proficiency, and engaging in a statewide pattern and practice of discriminatory permitting, including discriminatory handling of the public participation process.

According to a letter from the EPA dated Jan. 19, NMED has agreed to review its nondiscrimination procedural safeguards and take steps to bring the program into compliance, including publishing notice of nondiscrimination laws and information about how to file a complaint on its website.

In the third case filed two years ago involving the discriminatory permitting of industrial hog farm operations, known as CAFOS, in eastern North Carolina, the EPA issued a “letter of concern.”

Although the discrimination investigation is not complete, EPA expressed “deep concern” that African Americans, Latinos and Native Americans were being subjected to discrimination from the North Carolina Department of Environmental Quality’s swine waste permit program.

The predominantly African-American communities in eastern North Carolina impacted by the hog waste from CAFOs complained of the stench, increase in flies and truck traffic. Research shows that people living and going to school in proximity to these facilities experience increases in asthma and respiratory illnesses, among other health problems.

The letter raised concern that these problems are being felt “by large segments of communities of color.”

EPA made preliminary recommendations, including calling for a meeting with NCDEQ to explore an informal resolution agreement that would mitigate adverse impacts experienced by residents. In addition, the agency called on NCDEQ to evaluate whether its policies and procedures fulfill nondiscrimination requirements of federal law. 

The letters issued in these cases follow substantial pressure over the last 18 months.

In September, the United States Commission on Civil Rights published a scathing report, which found the EPA’s Office of Civil Rights fails to fulfill its civil rights responsibilities. In 2015, the Center for Public Integrity, in its Environmental Justice Denied series, found the office of civil dismissed nine out of every 10 complaints alleging environmental discrimination and had never formally found a violation of Title VI of the Civil Rights Act, despite receiving hundreds of complaints. That same year Earthjustice filed an unreasonable delay lawsuit on behalf of environmental and community groups from five states charging the EPA with failing to fulfill its legal obligation to complete investigations in 180 days after opening an investigation. EPA had accepted all five complaints more than ten years before the complaint was filed.

“Credit for the EPA’s movement on civil rights complaints goes to the communities and groups that pushed hard for discriminatory practices to be addressed,” said Marianne Engelman Lado, a former Earthjustice attorney who is now a clinical professor at Yale Law School. “This development falls short of what communities sought in a number of ways but it’s at least a step forward that EPA has finally acted on these complaints.”

Comments from Community Partners

Michigan: “Communities of color and schoolchildren have had to grow up near this horrible power plant and be subjected to its harmful emissions,” said Father Phil Schmitter, of the St. Francis Prayer Center, who filed the complaint and has been represented by the Sugar Law Center for Economic & Social Justice since the complaint was filed in 1993. “We know that it has had a disproportionate impact on a mostly black community near the plant in Flint, Michigan, and the EPA’s investigation failed to recognize that. But the EPA did recognize the MDEQ treated black people and white people quite differently during the public participation process, it was discriminatory, and was detrimental to people of color who wanted to speak out.  It’s unbelievable that it took EPA decades to make this finding, but it’s important to send a clear message to MDEQ, even now, that it needs to change the way it does business.”

New Mexico: "Until now New Mexico has not paid enough attention to the effects that polluting facilities can have on communities of color and low-income communities throughout the state," said Deborah Reade of Citizens for Alternatives to Radioactive Dumping (CARD). "Also, the state Environment Department has not made it easy for these communities to participate. It took far too long to get to this point. But finally there’s an agreement in place that should lead to more equitable public participation so communities’ voices are heard when permits to pollute are being considered.  We’ll be watching to make sure that New Mexico implements the agreement.”

North Carolina: “Communities of color in rural North Carolina have suffered from the horrible conditions caused by the hog industry for a long time,” said Naeema Muhammad of the North Carolina Environmental Justice Network. “The fact that EPA called for NCDEQ to address the problem is an important step in trying to get some relief.”

The EJ Clinic at Yale Law School, Earthjustice, and the UNC Center for Civil Rights represent the North Carolina Environmental Justice Network, Rural Empowerment Association for Community Help and Waterkeeper Alliance on their civil rights complaint.