In an unprecedented action, the Environmental Protection Agency (EPA) is investigating the Alabama Department of Environmental Management (ADEM), one of its state counterparts, for alleged civil rights violations under Title VI of the Civil Rights Act of 1964, which prohibits discrimination by programs receiving federal financial assistance.  The EPA’s decision to investigate ADEM could result in the EPA requiring state environmental agencies to formally adopt anti-discrimination measures in the implementation of state environmental programs, which in turn could require the regulated program to conduct additional evaluations of project impacts on minority communities when seeking state approval of environmental permits, licenses or authorizations, as well as requirements to develop anti-discrimination measures.  

The EPA’s investigation arises out of the Arrowhead Landfill in Uniontown, Alabama. The landfill is no stranger to controversy. Situated in a low-income community that is 89% African American, it has been the subject of multiple discrimination investigations. Civil rights advocates have brought national attention to claims that the landfill has had adverse health effects on the surrounding community, but proponents of the landfill’s operations note that it is uniquely positioned to safely process waste and has brought economic benefits to neighboring communities. Regardless of which side you’re on, to date, the landfill has been investigated eleven times by the EPA and ADEM and no violation has ever been found.

Most recently, in a decision to modify solid waste disposal permit number 35-06 earlier this year, ADEM authorized plans to expand the landfill, bringing renewed attention to the issue. In late February, the EPA’s Office of Civil Rights (OCR) got involved by initiating an investigation into possible violations of Title VI of the Civil Rights Act of 1964 due to ADEM’s decision to expand. The EPA’s involvement is critical because complainants do not have a private right of action against the landfill for a violation of Title VI. Alexander v. Sandoval, 532 U.S. 275 (2001) (declining to extend Title VI’s prohibitions to disparate impact discrimination). Thus, the OCR investigation is the only avenue of relief for community members who want to overturn ADEM’s expansion decision.

The OCR is investigating two issues, one old and one new: whether the ADEM’s decision to expand Arrowhead Landfill was discriminatory and whether ADEM failed to comply with a procedural requirement to institute compliance measures as required under Title VI of all institutions receiving federal funding. As to the latter issue, 40 C.F.R. 7.85 requires recipients of federal funding to prepare and maintain data about anti-discrimination measures where there is reason to believe that discrimination may exist. Recipients must also maintain a log of discrimination complaints, among other information. The EPA’s boilerplate language has included mention of these anti-discrimination requirements since 2013 but this is the first time compliance has been investigated by EPA in the environmental sphere; although other federal agencies have long required such measures.

ADEM has until March 25, 2016 to provide a statement in response to the EPA’s letter.

If the OCR finds that ADEM violated Title VI, ADEM risks losing all of its federal funding.  While such result is unlikely, the implications of EPA’s investigation reach far beyond Arrowhead Landfill’s borders or ADEM because such an investigation  could set the standard for the way EPA will now review and evaluate other state environmental protection agencies, all of which receive federal funds, for compliance with Title VI’s  anti-discrimination requirements, and in turn, the state agencies could require the regulated community to evaluate project impacts on minority communities when seeking permits, licenses or other authorizations, and to develop anti-discrimination measures.  

Nicole Whitecar, a law student, assisted in the preparation of this blog post.

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