May 28, 2024


For much of its 53-year history, the Environmental Protection Agency has let civil rights complaints languish. From Flint, Michigan to the industrial corridors of the Deep South, communities trying to use federal civil rights law to clean up the pollution in their neighborhoods have largely been met with years of silence as their cases piled up in the agency’s backlog. That changed in 2020, after a federal judge ruled that the EPA must conduct timely investigations of civil rights complaints, and staffers began looking into cases where they identified possible discrimination.

Now a slate of red-state attorneys general is trying to block the EPA from considering race at all. Twenty-three Republican attorneys general submitted a petition with the Biden administration’s EPA last week asking the agency to stop using Title VI of the Civil Rights Act to regulate pollution. Advocates describe the move, led by Florida’s Ashley Moody, as an attempt to strip the EPA of a way to tackle environmental justice, which the agency defines as “the fair treatment and meaningful involvement of all people, regardless of income , race, color, national origin, tribe, or disability, in agency decision-making.” In their petition, the Republican attorneys general argued that environmental justice in practice “asks the states to engage in racial engineering.”

The petition “reads like the next step in a series of actions designed to undermine our civil rights laws,” said Debbie Chizewer, an attorney at Earthjustice who leads the organization’s efforts on Title VI. She described petitions to the EPA as important legal mechanisms to force the agency to act. “It’s a real tool,” she said. “This is an abuse of that tool.”

Moody’s office told the Associated Press that the attorney general will sue the EPA if it doesn’t change its ways.

The most recent high-profile civil rights complaint filed with the EPA comes from residents of Cancer Alley, the stretch of land on the lower Mississippi River in southeast Louisiana that is home to hundreds of industrial facilities, including a notorious plant operated by the Japanese chemical giant Think about being owned. Beginning in the fall of 2022, the EPA spent months negotiating with Louisiana’s environmental and health regulators on how to ease the toxic pollution surrounding Denka and other plants that surround the region’s predominantly black towns. But the whole process was cancelled after then Louisiana Attorney General Jeff Landry (now the state’s governor) filed suit in May 2023.

Landry’s lawsuit attacked decades-old policies on environmental racism and challenged the EPA’s authority to regulate under Title VI. Although the EPA dropped the complaint in June, the state continued its litigation, and a federal judge ruled in Louisiana’s favor in January. Judge James Cain said that Louisiana and its “sister states” found themselves “at the mercy of the EPA and its overreaching mandates.”

Considered one of the most important provisions of the landmark 1964 Civil Rights Act, Title VI prohibits discrimination on the basis of race, color, and national origin in any program receiving funding from the federal government. This includes state agencies, which use federal dollars to administer pollution prevention laws such as the Clean Air Act and the Clean Water Act. Chizewer described the provision as necessary because “our environmental laws do not protect all communities. Zip codes determine your exposure to environmental damage and Title VI provides a setback to eliminate it.”

Recent attacks on the EPA’s use of Title VI can be traced back to the final days of the Trump administration, when the Department of Justice tried to push through a rule that would have changed the interpretation of Title VI to cover only intentional discrimination. For decades, federal agencies such as the EPA have interpreted Title VI to include in their definition of discrimination “disparate impacts,” the idea that a policy or agency decision may disproportionately hurt a specific group of people, regardless of whether it is intentional. The legal argument supporting the Trump administration’s rule, as well as the Louisiana lawsuit and the most recent petition, is based on the Supreme Court case Alexander vs. Sandoval. The 2001 decision, written by the late Justice Antonin Scalia, said that private citizens do not have the right to sue parties under Title VI, meaning that the law’s protections can only be advanced by agencies such as the EPA. The Republican attorney general now wants to roll back the agency’s ability to use Title VI as well.

Claire Glenn, a criminal defense attorney with a background in civil rights law, told Grist that the disparate impact interpretation of Title VI is necessary to keep communities safe as companies are careful not to appear discriminatory.

“We are in an era where intentional discrimination is increasingly difficult to prove, but discriminatory impacts are not going away,” Glenn said.

Title VI is one of a handful of federal regulations that can be used to protect communities from toxic pollution. The Clean Air Act requires states to regulate plants by industry, with each type of facility required to meet certain standards that limit their emissions. But when companies try to build plants in already polluted areas, Title VI can be used to block local governments from granting them permits. Over the past five years, the chemical industry made a concerted effort to expand its footprint in Louisiana. Since the EPA dropped its Title VI case there, residents and advocates have had to find new ways to fight the expansion.

The EPA has not yet publicly acknowledged Florida’s petition. Chizewer said the agency could choose to reject it outright, or accept it and begin a process to change its own regulations.

“I think this is a test for the EPA,” Chizewer said. “The EPA needs to stand firm and show the importance of this tool.”






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