In December 2021, we reported on a “Sleeping Giant” being awakened through the Biden Administration’s 2022-2026 Strategic Plan and its goal of using enforcement of the Civil Rights Act of 1964 Title VI as a key tool to “advance environmental justice and equity.”[1] The Strategic Plan highlighted EPA’s commitment to strengthen the External Civil Rights Office (ECRO) and its ability to enforce federal civil rights laws to their “fullest extent” by conducting “affirmative investigations” in overburdened communities and securing timely and effective resolutions to address discrimination.

We noted in our blog post that, although EPA historically has been hesitant to pursue Title VI actions, we identified several recent Title VI actions taken by EPA against a number of state regulatory agencies. However, as all the actions at that time were in the investigatory and saber-rattling stage, it was unclear what would happen when EPA was faced with the statutes and regulations that limit the scope of a state agency’s non-discretionary review and permitting authority. As described below, EPA is finding out the limits of its powers.

Background

Title VI of the Civil Rights Act contains two provisions that EPA utilizes as the basis for environmental justice claims and policy. First, Section 601 provides that no person shall “on the grounds of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subject to discrimination under any program or activity” covered by Title VI. Second, Section 602 authorizes federal agencies to “effectuate the provisions of Section 601 by issuing rules, regulation or orders of general applicability.”

To effectuate Title VI, EPA has promulgated regulations that are designed to ensure that recipients of federal funds do not take actions that are intentionally discriminatory or have a discriminatory effect based on race, color or national origin. These regulations authorize EPA to conduct affirmative compliance reviews and provide a process for affected communities to file a Title VI complaint. After a complaint is filed, EPA has 20 days to determine whether it meritsinvestigation and 180 days to issue a preliminary finding. If EPA makes a finding of discrimination, it must request that the recipient of funds address the problem voluntarily. If the recipient does not take voluntary actions, EPA can refuse to continue providing federal funds. There is no private right of action to pursue Section 602 claims, so EPA’s cumbersome and extended process is the only route to pursue environmental civil rights claims.[2]

Louisiana – the Beginning of the End for Analysis of Disparate Impacts?

In April 2022, EPA accepted two Title IV complaints regarding the Louisiana Department of Environmental Quality (LDEQ) and Louisiana Department of Health (LDH) Clean Air Act permitting and other activities in “Cancer Alley” - an 85-mile industrial corridor area along the Mississippi River between Baton Rouge and New Orleans. The complaints claimed Title VI violations with regard two individual plants as well as general permitting activities in the industrial corridor.[3] On October 12, 2022, EPA sent a 56-page "Letter of Concern" regarding its “initial fact finding and analysis” regarding the Title VI complaints. EPA concludes that its initial investigation “raises concerns” that LDEQ and LDH’s permitting and health mitigation activities may have an “adverse and disparate impact on Black residents” who live or attend school near the plants or within the industrial corridor. The Letter recommends, along with additional air and health monitoring, performance of cumulative risk analyses for each of the plants as well as all future air permitting activity in the industrial corridor. Immediately prior to initiation of litigation, LDEQ and LDH were negotiating an Informal Resolution Agreement, including a requirement to conduct a cumulative impacts analysis before permitting any projects in “Cancer Alley.”[4]

At some point, negotiation of the IRA failed. On May 24, 2023, Louisiana pushed back by filing a lawsuit against EPA. Among other things, Louisiana claims that EPA had overstepped its authority by attempting to “moonlight as a social justice warrior” rather than focusing on its environmental mission and that it has no statutory or regulatory authority to require an analysis of impacts on communities of color before issuance of the permits. Louisiana also argues that Title VI only prohibits intentional discrimination – not activities that have a “disparate impact on racial groups.” On June 21, 2023, Louisiana requested a preliminary injunction prohibiting EPA from “imposing or enforcing any disparate-impact-based requirements against the State or any State agency under Title VI.”

Rather than respond to the litigation, EPA elected to drop its pursuit of the two Title VI complaints. In a June 23, 2023 letter, EPA stated that it was administratively closing its investigation of the Title VI complaints and EPA “will not initiate under Title VI or other civil rights laws any further action, enforcement or otherwise, in response to these Complaints.” EPA touted certain successes regarding the challenged permits and indicated EPA’s commitment to conduct its own cumulative risk analysis at its cost as impacting its decision to close its investigation. There can be many reasons why a case does not proceed and it can be dangerous to make inferences about why EPA could have declined to continue pursuing this matter, although one could consider whether the retreat was to avoid an adverse court decision on a key component of EPA’s environmental justice strategy. Further, regardless, environmental and civil rights organizations will view the closure as a disturbing retreat from EPA’s environmental justice commitment.

On July 6, 2023, Louisiana responded to EPA’s withdrawal by narrowing its request for injunctive relief but not dismissing the entire action. Louisiana will continue to pursue an injunction on the disparate impact claims and seeks an injunction against EPA “attempts to impose cumulative-impact requirements” on any state, specifically citing guidance issued by EPA in August 2022 and January 2023.[5] EPA’s motion to dismiss Louisiana’s action is expected soon.

What Comes Next?

• EPA’s withdrawal of the Louisiana complaint may indicate EPA's recognition of a possible weak hand in its pursuit of Title VI investigations, especially where the investigation is supported mainly on disparate impacts versus intentional discrimination.

• The impact of the Louisiana case may rise or fall on whether the district court dismisses the case now that EPA has closed the administrative matter. If not, it is conceivable that that a district court could decide to take on bigger policy issues regarding EPA’s (and other federal agencies such as education, transportation and health) regarding the use of disparate impacts to deny federal funding, with the case eventually winding its way through a friendly Fifth Circuit and eventually to the Supreme Court.

• EPA’s pursuit of the voluntary agreement with LDEQ and LDH was based on EPA’s “concerns” versus substantiated allegations. It is somewhat disconcerting that EPA can seek to foist multitudes of obligations on a state agency based only on “concerns” and, arguably, require the state agency to develop its own evidence “proving” EPA’s concerns through a voluntary agreement (e.g., cumulative impact analysis and air monitoring). However, many state agencies have been willing to go along with EPA’s strategy, and reportedly, LDEQ and LDH were amenable to this route until they were not.

• Our December 2021 Blog discussed Title VI investigations in Michigan and Missouri regarding the permitting of facilities in primarily Black and Hispanic lower-income neighborhoods and underlying complaints focused on “disparate impacts” and the need for cumulative impact analyses. These investigations are ongoing, with the goal of entering into settlement agreements on both.[6] Based on the arguments presented in the Louisiana matter, Michigan and Missouri may have a stronger argument to push back against EPA, especially if EPA’s findings are based on disparate impact and/or EPA tries to require actions that are not mandated by statute or regulation.

• EPA may have more success when the local government “welcomes” the review of the civil rights issues (or another federal agency steps in to help). We reported on a Title VI investigation related to theissuance of a permit for a new scrap shredder in a low-income, predominantly Latino neighborhood on Chicago’s southeast side, which was being constructed to replace a similar operation in a wealthy, largely white neighborhood. Chicago welcomed EPA’s overtures and accepted its recommendation to halt (and eventually deny) the permit and conduct a cumulative impacts analysis. Although EPA’s activities have been slowed through ongoing permit challenges, the United States Department of Housing and Urban Development (HUD) appears to have stepped in to fill the gap, with a parallel Title VI investigation resulting in a Settlement Agreement very similar to what would be expected from EPA for an environmental justice community – improved land use and zoning decisions; development of environmental justice actions plans; performance of cumulative impact analyses; and development of standard air permit conditions.[7]

• Certain Title VI investigations may be sufficient to show intentional discrimination. The United States Department of Health and Human Services (HHS) and the Alabama Department of Public Health (ADPH) entered into a first-of-its-kind Settlement Agreement resolving issues related to the chronic underfunding of septic and sewer systems in Lowndes County, Alabama, which were well known and had been reported on for years by the national press.[8] The Agreement will require APDH to cease enforcing sanitation laws against residents that cannot afford to upgrade its septic systems, which often put homeowners under the threat of arrest, criminal penalties and property liens, and requires APDH to create an infrastructure improvement plan and identify funding resources, with continuing engagement with the Lowndes County community on a quarterly basis.

Footnotes

[1] SeeA Sleeping Giant Awakens (Maybe?) – “Environmental” Enforcement of Title VI of the Civil Rights Act of 1964 in the era of the Biden Administration. (December 2021), which discussed the October 2021 Draft Strategic Plan. This Strategic Plan, finalized in March 2022, preserves the environmental justice goals and priorities.

[2] Alexander v. Sandoval, 532 U.S. 275 (2001). United States Supreme Court held that there is no private right of action to pursue Section 602 claims for disparate impacts.

[3] EPA assessed whether LDEQ’s and LDH’s actions have an adverse disparate impact on residents who identify as Black living in or near the following areas: (1) the Denka Performance Elastomer LLC (Denka) facility in LaPlace, Louisiana; (2) the location of the proposed FG LA, LLC (Formosa) facility in St. James Parish; and (3) the Industrial Corridor.

[4] See The EPA was ready to clean up 'Cancer Alley.' Then it backed off. | Grist. The draft Informal Resolution Agreement was obtained by the Grist in support of this article.

[5] The Motion refers to EPA’s August 2022 Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions and January 2023 EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum

[6] Missouri Department of Natural Resources (MDNR) did agree to enter a Voluntary Compliance Agreement (VCA) with EPA to implement a number of procedural safeguards; however, the VCA explicitly states that the issue regarding whether MDNR discriminated against or took actions that resulted in disparate impacts to the Dutchtown community in issuance of the permit is still outstanding.

[7] An interesting history of the facility and the HUD response may be found here: HUD accuses city of Chicago of environmental racism by moving polluters to Black, Latino neighborhoods, stemming from General Iron probe - Chicago Sun-Times (suntimes.com)

[8] An 18-month investigation found areas of concern regarding Title VI compliance, including a “consistent pattern of inaction and/or neglect concerning the health risks associated with raw sewage [and] . . . despite ADPH’s awareness of the issues and the disproportionate burden and impact placed on Black residents in Lowndes County, it failed to take meaningful actions to remedy these conditions.” Opinion | The Homes of Lowndes County, Ala., Are Waiting - The New York Times (nytimes.com); Opinion | A County Where the Sewer Is Your Lawn - The New York Times (nytimes.com); Opinion | In Alabama, Poverty and the Coronavirus Are a Double Blow - The New York Times (nytimes.com).