Newspaper article

EPA's Record on Environmental Justice Is Dismal, an Official Analysis Finds

Newspaper article

EPA's Record on Environmental Justice Is Dismal, an Official Analysis Finds

Article excerpt

Like most government agencies that receive federal funds, the U.S. Environmental Protection Agency is bound by federal law to ensure there is no illegal discrimination in the way those funds are used.

It even has a special section to deal with "environmental justice" complaints, which would better be labeled "environmental injustice" -- they allege illegal imbalance in the way its rulemaking, grantmaking and enforcement actions so often deliver better outcomes for white, affluent communities than poor communities of color.

Many of these are known as Title VI complaints, because they are brought under that section of the Civil Rights Act of 1964. And since the first one was filed in 1993, it has received about 300 of them, which works out to a little better than one per month. To handle the flow, it created its Office of Civil Rights in 1994.

Yet not one has resulted in a formal finding of discrimination by EPA, according to a new analysis by the U.S. Commission on Civil Rights [PDF], let alone a decision to deny or take back federal dough.

Nine out of 10 complaints have been dismissed outright -- but not, by any means, in haste. Although the agency is required by law to decide within 20 days whether to accept a complaint for investigation, the commission found that the average wait from filing to this initial determination is about a year.

If a complaint is accepted, the inquiry is supposed to be completed within six months. But the 30-some complaints still pending out of the 300 filed with EPA constitute a backlog that goes back, in some cases, to 2013.

In the single instance where EPA has approached a finding of "disparate impact" that would violate Title VI, it concluded in 2011 that California pesticide regulators were permitting use of toxic fumigants too close to public schools, especially schools whose enrollment was heavily Latino. However, EPA notified neither the complaining parents nor their lawyers of the tentative findings on the complaint, which had been filed a dozen years earlier (and became moderately famous as the Angelita C. case).

Instead, it reached a settlement that carried no finding of fault by the California Department of Pesticide Regulations, and simply required it to do more monitoring on the fumigants at issue -- methyl bromide products, which were already being phased out.

In other words, the commission found, "the specific relief the claimants were seeking had already been addressed," and EPA knew this as it negotiated the settlement, placing on the Californians a compliance burden that had begun to dissolve on its own.

Inaction leads to litigation

Inaction by EPA frequently triggers litigation by aggrieved parties, the commission found.

EPA has been sued multiple times (sometimes in the context of processing the same Title VI complaint) for failing to meet its regulatory time frames. Once sued, EPA takes the minimal amount of action to moot the lawsuit, yet never seems to reach any substantive decisions on whether a federal recipient has violated Title VI.

The commission's analysis focuses heavily on the newer issue of coal ash and EPA's 2014 rulemaking that set national standards for disposal of the material, which accumulates at coal-fired power plants and contains significant amounts of mercury, heavy metals and other toxins.

That rulemaking was subject to a 20-year-old executive order by President Bill Clinton requiring federal agencies to take matters of environmental justice into account in setting policy and applying rules.

However, the commission found that EPA ducked its responsibility on coal ash until -- you guessed it -- "forced to do so as part of settling a lawsuit," then categorized it as a material scarcely more troublesome than household trash.

When EPA did issue a final rule, it classified coal ash as a solid waste (as opposed to a hazardous substance) under the Solid Waste Disposal Act. …

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