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Environmental racism persists amid EPA inaction

The EPA office tasked with policing alleged civil rights abuses is chronically unresponsive to complaints and has never made a formal finding of discrimination.
The headquarters of the Environmental Protection Agency (EPA) stands in Washington, D.C. (Photo by Andrew Harrer/Bloomberg/Getty)
The headquarters of the Environmental Protection Agency (EPA) stands in Washington, D.C.

The invasion of sewer flies moved residents of University Place subdivision to turn to the U.S. Environmental Protection Agency for help. Darting from a neighboring sewage plant, the flies descended upon the mostly African-American neighborhood in Baton Rouge, Louisiana, with such regularity that one resident posted this warning sign: Beware of attack fly.

In 2009, residents grew so sickened by the flies, odors and pollution emanating from the city's North Wastewater Treatment Plant that they sought out the federal agency that has touted the importance of tackling environmental racism.

"The citizens of University Place Subdivision are still suffering through the dreadful, unhealthy, and downright shameful conditions forced upon this community," wrote Gregory Mitchell, whose mother, Mamie, erected that attack-fly warning atop her home, in a complaint filed with the EPA's Office of Civil Rights.

A little-known niche within the EPA, the civil-rights office has one mission: to ensure agencies that get EPA funding — like the city of Baton Rouge — not act in a discriminatory manner. The mandate comes from Title VI of the federal Civil Rights Act of 1964, a sweeping law prohibiting racial discrimination by those receiving federal financial assistance. Experts say the provision presents a significant legal tool for combating environmental injustice.

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Time and again, however, communities of color living in the shadows of sewage plants, incinerators, steel mills, landfills and other industrial facilities across the country — from Baton Rouge to Syracuse, Phoenix to Chapel Hill — have found their claims denied by the EPA's civil-rights office, an investigation by the Center for Public Integrity and NBC News shows. In its 22-year history of processing environmental discrimination complaints, the office has never once made a formal finding of a Title VI violation.

Months after receiving the Baton Rouge community's Title VI complaint, the officerejected it. Investigators declined to examine the claim that the city had violated the civil rights of black property owners around the North plant, citing a pending lawsuit filed by residents against the city.

In July, five communities — in Alabama, Michigan, Texas, New Mexico and California — sued the EPA for failing to finish investigations pending for more than a decade.

In 2010, Mitchell and neighbors again turned to the EPA and, again, the agency said no. Settling their lawsuit later that year, the residents logged a thirdcomplaint charging the city had discriminated against them. This time, the EPArejected it on another technicality — it was "not timely."

By 2012, they had returned to the EPA a fourth time, only to get a fourth rejection. Few communities have been rebuffed more than Baton Rouge. The distinction has left residents like Mitchell feeling as though regulators "say something to blow you off and just forget about it."

"Under the EPA's civil-rights division," he said, "nothing is done."

A pattern of rejection

The Baton Rouge case is extreme but not unique. The Center filed a Freedom of Information Act request seeking every Title VI complaint submitted to the office, and every resolution of those complaints, since the mid-1990s. The agency produced records representing most of the complaints handled in that time, but not all. The records, consisting of thousands of pages of documents, cover 265 Title VI cases and stretch from 1996 to mid-2013.

The records reveal a striking pattern: More than nine of every 10 times communities have turned to it for help, the civil-rights office has either rejected or dismissed their Title VI complaints. In the majority, the office rejected claims without pursuing investigations. On the few occasions that it did, it dismissed cases more often than it proposed sanctions or remedies. Records show the office has failed to execute its authority to investigate claims even when it has reason to believe discrimination could be occurring, such as in Baton Rouge.

Of the cases reviewed by the Center, the EPA:

  • Rejected 162 without investigation;
  • Dismissed 52 upon investigation;
  • Referred 14 to other agencies, including the departments of Justice, Health and Human Services and Transportation;
  • Resolved 12 with voluntary or informal agreements;
  • Accepted 13 for investigations that remain open today, the oldest begun in 1996.

The EPA rejected complaints for a host of procedural reasons, records show. The most common reason (95 cases), complaints were denied was because the EPA said their targets did not receive agency funding, as is required by law. Other complaints (62) came in too late for action, it said, because they fell outside a 180-day time limit that the agency has authority to waive.

Still others (52) were tossed because of "insufficient" claims, meaning they did not adequately describe the alleged discriminatory acts forbidden under Title VI. The EPA, in essence, requires complainants to have knowledge of civil-rights law and other nuances before filing a case. They are assumed to know, for example, that Title VI does not apply to private companies.

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One thing is clear: While the reasons vary, the EPA's civil-rights office rarely closes Title VI complaints alleging environmental injustice with formal action on behalf of communities of color.

Indeed, as the records reveal, the agency often found allegations "moot" precisely because of its own inaction. Agency regulations set a 20-day deadline for the office to determine whether it will investigate a case. Yet in cases dismissed as moot — nine over the past 16 years, or 4 percent — the EPA took, on average, 254 days — excluding weekends and holidays — just to make such a jurisdictional decision.

The delay, in itself, is a form of denial. At times, the EPA has taken so long to decide whether to open an inquiry that situations on the ground changed — an asphalt plant closed, for instance, or a waste facility withdrew its permit application. Other times, communities have remained in limbo for years as agency investigators ruled on the alleged discrimination.

In July, five communities — in Alabama, Michigan, Texas, New Mexico and California — sued the EPA for failing to finish investigations pending for more than a decade. The litigation, filed by the environmental law firm Earthjustice, challenged what it called the agency's "pattern and practice of unreasonable delay…" The delays have forced residents to endure pollution from a landfill, an oil refinery and three power plants, the lawsuit said. The EPA itself classifies two of the power plants and the refinery as "significant" violators of the Clean Air Act.

Even among the small universe of cases sparking action — 64 over 17 years, or 25 percent — records suggest the civil-rights office rarely closes investigations with formal sanctions or remedies. Under Title VI, EPA officials can correct an act deemed discriminatory by requiring reforms, or overturning decisions. It can also withhold funding or refer cases to the Justice Department for prosecution.

Only nine cases have been settled through agreements brokered between agency officials and targets of complaints. Another three cases have been closed through "alternative dispute resolutions," meaning the complainants and the targets hashed out solutions.

More than nine of every 10 times communities have turned to it for help, the civil-rights office has either rejected or dismissed their Title VI complaints. In the majority, the office rejected claims without pursuing investigations.

Asked about this record, the EPA did not dispute the Center's findings. Instead, the head of the EPA's civil-rights office, Velveta Golightly-Howell, declined to discuss cases prior to her tenure, which began in February 2014. In a half-hour telephone interview with the Center and NBC News, she stressed that the EPA is committed to "making a visible difference in communities," and is "making a lot of strides" to improve its Title VI enforcement.

"It is important to note that 'finding a formal Title VI violation' is not the ultimate objective as [a] civil rights office," Golightly-Howell said in a written response to follow-up questions. "The most important objective is to bring about prompt and effective resolution of cases in order to address discrimination issues as quickly and thoroughly as possible."

She acknowledged that "there have been some problems in the past" processing Title VI complaints.

"We cannot focus on the past because there's nothing we can do about it," she said. "We can, however … focus on the present and the future, and that's what we're doing."

To advocates, the EPA's pattern of denials, delays and dismissals speaks louder than the agency's words — from not only Golightly-Howell, but also Administrator Gina McCarthy, who in March gave the keynote address at a national conference on environmental justice, in Washington, D.C. Throughout her 20-minute speech, the administrator touted how the agency has promoted environmental justice in disadvantaged communities across the country. Not once did she mention the agency's civil-rights office.

Listening to McCarthy's speech, Richard Moore, an advocate from New Mexico, said, "You have to put the proof in the pudding. At the end of the day, we see no major activity taking place through [the agency's] Office of Civil Rights."

Additional reporting by Talia Buford and Ronnie Greene.

This article originally appeared on NBC Read the rest of Environmental Justice, Denied at the Center for Public Integrity. The Center for Public Integrity is a nonprofit, nonpartisan investigative news organization in Washington, D.C.