Texas Environmental Agency Faces Charges of Federal Civil Rights Violations

The Texas Commission on Environmental Quality (TCEQ) is violating the federal Civil Rights Act and discriminating on the basis of national origin by failing to require public meeting notices and language services in an equitable manner, according to a Houston-based environmental justice group and two national environmental organizations.

The federal civil rights complaint was filed today with the U.S. Environmental Protection Agency’s Office of Civil Rights and the U.S. Department of Justice by Earthjustice, on behalf of Texas Environmental Justice Advocacy Services (t.e.j.a.s.) of Houston and the Sierra Club.

The groups say the TCEQ is discriminating against people with limited English proficiency by not offering access to information about public meetings for state-run environmental permitting in an equitable way.

EPA guidance prohibits conduct that has a disproportionate impact on people with limited English proficiency. The guidance states that “failure to ensure that LEP [limited-English proficient] persons can effectively participate in or benefit from Federally assisted programs and activities may violate the prohibition under Title VI of the Civil Rights Act of 1964.”

While discrimination in Texas is the focus of this complaint, failure to provide public notices and accessible information to those with limited English proficiency is a problem throughout the nation, including California, Colorado, Illinois, Louisiana, and New Jersey.

The state of Texas does not require the TCEQ to provide alternative language notice for public meetings held for state environmental permitting actions nor language interpretation services at public meetings. The result is an inconsistent and exclusionary use of discretion by TCEQ staff where some communities receive alternative language notice and interpretation services because of their access to elected officials, while others do not.

In the complaint, the groups say that “public notice is a protected legal right and an integral part of the environmental permitting decision-making process.”

“This means that affected non-English-speaking community members throughout Texas are not made aware of public meetings and thus are denied the opportunity to fully participate in the permit decision-making process,” the complaint states.

The complaint notes that linguistically isolated communities that exist throughout Texas are disproportionately low-resource communities and communities of color. In the east Houston community of Manchester, for instance, where t.e.j.a.s. is based, 93.69% are Latinx (an intersectional term used to describe the peoples of Latin America and the Caribbean), nearly 90% are low-income and nearly half have limited English proficiency.

“Latinx and immigrant communities in Houston and throughout Texas have been marginalized and disproportionately affected by pollution,” said Yvette Arellano, senior staff, policy research and grassroots advocate at t.e.j.a.s., the environmental justice group that made the complaint.

“Oftentimes, community members know nothing about the construction of a new unit at an oil refinery, concrete batch plant or other hazardous infrastructure because of a lack of Spanish notice. The current rules place a tremendous burden on community members, one they often need expert advice to overcome — this should not be the case. At a bare minimum, TCEQ should be required to follow the law and offer equal access to meeting notices in people’s primary language and necessary interpretation services. It is their duty to the communities they are meant to protect.”

Under Title VI of the Civil Rights Act, it is illegal for an entity, like a state environmental agency, to receive federal money and discriminate on the basis of race, color, or national origin. Discrimination need not be intentional. The term under the Civil Rights Act refers to any decision that has an unjustified unequal impact.

“Federal civil rights laws are clear,” said Earthjustice staff attorney Isabel Segarra Treviño. “State agencies cannot use federal dollars and offer some communities more access to information than they provide to others,” she said.

“We’re asking for basic equity for people with limited English proficiency, so they can exercise their rights to the same extent as those who are English-dominant,” Segarra Treviño said. “Texas should not continue to treat some of its residents as second-class citizens, especially when public health and safety are on the line.”

The TCEQ’s discriminatory conduct has serious implications for a community to engage on issues that impact public health. Because the TCEQ does not hold public meetings as a matter of right, by the time a public meeting is granted, affected community members have organized and invested a considerable amount of time and resources to understand and fight pollution in their community. For example, in the spring of 2018 members of the Manchester community learned that the Valero refinery in their community applied to amend its state air permit to emit over 10 times the amount of toxic hydrogen cyanide — an agent of chemical warfare — that it was then emitting. The community has been engaged for over a year and produced nearly 350 public comments, and public meeting and hearing requests.

Community members and elected officials requested a public meeting that the executive director of the TCEQ scheduled for June 4, 2018. But Manchester residents suffered discrimination because the notice was only issued in English. Community members and elected officials requested a second public meeting. The TCEQ scheduled one for September 20, 2018 and provided bilingual notice, but this notice was published in Spanish only four days in advance of the public meeting.

Houston is one of the top 25 most ozone-polluted cities in the country, according to the American Lung Association, and consistently fails to meet health-based federal ozone standards. And the Houston Chronicle found that two predominantly Latinx communities are the most polluted in the city. The Union of Concerned Scientists found significantly higher levels of toxicity and cancer risk in Manchester and Harrisburg, both majority Latinx when compared to West Oaks/Eldridge and Bellaire, which are majority white and upper income.

“For decades local Sierra Club members in the Houston area have witnessed TCEQ failing to fulfill its stated mission to protect public health,” said Neil Carman, clean air program director for the Texas Lone Star Chapter of the Sierra Club. “It’s time for the agency to stop ignoring its mission and provide needed access to information so that people can fully engage on issues involving their health and wellbeing.”

The TCEQ’s rules especially affect Houston-area communities. By some measures, Houston is the most diverse city in the Nation where over 140 languages are spoken and nearly one quarter of the population is foreign born.

The environmental groups note that Latinx communities, mostly Mexican American, have fought discrimination at least since 1848 when the Treaty of Guadalupe Hidalgo, which marked the end of the Mexican-American War, involuntarily naturalized more than 115,000 Spanish-speaking Mexicans and forced them into a second-class U.S. citizenship status. Mexican American and other Latinx communities have fought government-sanctioned discrimination, including the murder of hundreds of Mexican Americans by Texas Rangers, a law enforcement arm of the Texas government and discrimination in public places, including schools, based in part on English-only policies.

The groups are asking the EPA to investigate whether the TCEQ violated the Civil Rights Act and EPA’s regulations. They are also asking the U.S. Department of Justice to play an active role in coordinating the investigation and enforcement action.

Also, the groups are asking for the TCEQ to grant a state rulemaking petition that would partially remediate the persistent discriminatory conditions. The asks include: amending the state code to require public notice for public meetings in an alternate language, including a minimum 30-day mailed and published public notice requirement. In addition, they are calling for language-interpretation services at public meetings for which alternative language notice is required.