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Julie H. Hurwitz and E. Quita Sullivan Excerpted from: Julie H. Hurwitz and E. Quita Sullivan, Using Civil Rights Laws to Challenge Environmental Racism , 2 Journal of Law in Society 5-70, 16-67 (Winter, 2001)(194 Footnotes) There are currently two legal avenues available to communities seeking environmental justice: the regulatory administrative action and the court action, neither of which are mutually exclusive. Both of these avenues, however should be considered only within the context of a broader strategy of empowering the affected community to have an impact on the conditions of their overall quality of life. The collective experiences of the environmental justice movement since 1979 have proven that the use of litigation as a movement strategy is of limited value. The legal framework for litigating issues of environmental justice does not fall neatly under any one statute or set of statutes. Rather, it involves an intersection of laws, including civil rights laws, environmental laws, constitutional principles and human rights laws. These different sets of laws, some federal and some state in origin, are either grounded in principles of equality - that is, that a state agency or recipient of federal money may not discriminate on the basis of race - or in principles of protecting human health and the environment. One of the problems with applying traditional environmental laws to the environmental justice arena is that they tend to be risk-oriented, that is, they tend to support agency decisions to grant permits so long as the proposed emissions comply with minimal federal and state regulatory threshold levels. Thus, it is extremely difficult to win an environmental justice claim using these laws even if it can be shown that communities are harmed (either cumulatively or disproportionately) by emissions that occur below those thresholds. Moreover, this legal theory-- that emissions at whatever level will cause harm -- requires the extensive use of experts, who can be quite costly to community-based litigants.Traditional civil rights laws that explicitly prohibit discrimination provide an important vehicle for communities to challenge racially disparate treatment within the context of the laws that are currently on the books. Title VI of the 1964 Civil Rights Act, the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983, and EPA's administrative regulations implementing Title VI have all been used in various court and administrative challenges to environmental racism, all with varying degrees of success. A serious question now facing the environmental justice/civil rights community is the extent to which the courts recognize an implied private right of action under the implementing regulations of §602 of Title VI. These regulations require a showing of "disparate impact," rather than the stricter requirement of "intent" now required under an Equal Protection claim, or a statutory claim brought directly under §601 of Title VI of the 1964 Civil Rights Act. Another dilemma facing the environmental justice movement is that the administrative process for investigating and deciding Title VI §602 regulatory claims within the EPA Office of Civil Rights (OCR) is a fruitless exercise for all intents and purposes. Of the nearly four-dozen pending administrative Title VI claims before the EPA filed by OCR between 1993 and 1998, there has been only one decision, St. Francis Prayer Center v. Michigan Dept. of Environmental Quality, [hereinafter Select Steel].This case was filed in 1998 and then investigated and decided under circumstances that raise serious questions as to the validity of the process. A. Court Actions - Equal Protection, Title VI §§601 and 602, 42 U.S.C. §1983. 1. Fourteenth Amendment - Equal Protection and Bean. The very first environmental justice cases were brought under the Equal Protection Clause. The Fourteenth Amendment prohibits discrimination on the basis of race. It states: "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." It is eminently logical to rely on an equal protection analysis for relief from environmental racism, since the crux of environmental racism is that communities of color are denied the equal protection of the laws. However, as the judicial interpretation of the Equal Protection Clause has evolved over the years, the burden of proof imposed on plaintiffs requires a showing of intent to discriminate, as defined by the Supreme Court in Washington v. Davis and Village of Arlington Heights v. Metropolitan Housing Development Corporation. This burden has proven to be insurmountable in virtually every case challenging environmental racism. This difficulty is demonstrated by Bean v. Southwestern Waste Management, the first "environmental justice" case litigated under the equal protection clause. It was brought in 1979 by a group of residents living in the Northwood Manor - a suburban Houston, Texas, neighborhood. The plaintiffs charged Browning-Ferris Industries with equal protection violations in siting a municipal solid waste facility in their neighborhood. Browning- Ferris had previously attempted to site a similar facility in the community in 1970, when the neighborhood had been predominately white. This siting attempt was defeated by the Harris County Board of Supervisors. By 1979, after the racial demographics of the community had changed, the company returned and this time succeeded in obtaining a permit. The Bean plaintiffs successfully exposed a clear pattern of siting solid waste facilities in communities of color throughout Houston. All the city-owned landfills, six of the eight municipal solid waste incinerators, and three of the four privately owned landfills were located in predominantly African American neighborhoods, although African Americans comprised less than 30 percent of the population of Houston. Despite this powerful evidence, the Northwood Manor residents were unsuccessful in their legal challenge because they were unable to prove intent to discriminate.The court in Bean readily acknowledged that the siting of the landfill in that community was both illogical and insensitive, particularly because it was going to be within 1700 feet of a predominantly African American high school which had no ventilation. The court further agreed that the plaintiffs had "established that there [was] substantial threat of irreparable injury." Nonetheless, the court rejected the plaintiffs' claim of intentional discrimination and the landfill was built: The problem is that the plaintiffs have not established a substantial likelihood of success on the merits. The burden on them is to prove discriminatory purpose. Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). That is, the plaintiffs must show not just that the decision to grant the permit is objectionable or even wrong, but that it is attributable to an intent to discriminate on the basis of race. Although, as the Bean court noted, statistical evidence may sometimes be used where a "clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face," the attempt to use statistics in environmental justice litigation has been generally unsuccessful. This is due in part to the deference usually afforded to governmental agencies. Once a discriminatory intent has been demonstrated, the defendant may still avoid liability by showing that "the same decision would have resulted even had the impermissible purpose not been considered." It is not difficult to imagine that this is generally an easy standard for government agencies with easy access to scientists, planners, and lawyers, to meet. Because of the difficulties inherent in proving intent to discriminate when challenging patterns of racially disproportionate environmentally harmful exposure, advocates for the environmental justice movement have turned to the Civil Rights Act of 1964, Title VI. 2. Title VI: 42 U.S.C. 2000d - The Civil Rights Act § 601 Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funds from engaging in race discrimination. It states, "[n]o person in the United States Shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Until recently, this federal law was used primarily by communities seeking to ensure that federally funded municipal services, such as public highway construction and public employment policies, were provided in an equitable manner. Then, in 1996, two years after the signing of Executive Order 12898, a group of residents in a small town in Pennsylvania brought the first environmental justice Title VI case, challenging the issuance of a permit for a waste facility in a predominantly African American community. The plaintiffs in Chester alleged both a violation of the statute itself, under § 601, and a violation of the EPA Title VI regulations promulgated under § 602 of Title VI. Despite a confusing history, by the time the Chester case reached the Third Circuit, it was clear that in order to prevail under a straight Title VI § 601 claim, the plaintiffs would have to prove intent to discriminate. Thus, an action brought under § 601 of Title VI, as with the Equal Protection Clause, now requires a showing of intent to discriminate. 3. Title VI, § 602: Implied Right Of Action Under Disparate Impact Standard of Federal Regulations In light of the current status of the law regarding the burden of proof under the Equal Protection Clause and Title VI facing environmental justice and other civil rights plaintiffs, the availability of a private cause of action under the disparate impact standard of the federal Title VI § 602 EPA regulations has become very significant. Since 1974, when the Supreme Court first addressed this question in Lau v. Nichols, the existence of a private right of action under § 602 regulations has been hotly debated. In Lau, the Court suggested for the first time the viability of an implied right of action under § 602, by holding that a plaintiff could prove a violation of the Department of Health, Education and Welfare's (HEW) § 602 regulations relying solely on evidence of disparate impact. For what appear to be highly political reasons, however, the Supreme Court has carefully avoided explicitly resolving this question. In 1983, the Court rendered its convoluted multi-part decision in Guardians Ass'n v. Civil Serv. Comm'n of New York, and its subsequent decision in Alexander v. Choate, both of which suggest without expressly finding an implied right of action under § 602. Since then, there have been numerous circuit court interpretations of these opinions, nearly all of which have relied on Guardians and its progeny to assume the viability of such a cause of action without ever actually holding so directly. The two exceptions to this persistent judicial avoidance of the issue are the Third Circuit in Chester v. Seif and, most recently, the Eleventh Circuit in Sandoval v. Hagan. Both courts expressly held that, based on the history of jurisprudence on this issue, there is indeed an implied private right of action available to judicially enforce § 602 Title VI disparate impact regulations in a court of law. Although the Second Circuit had previously both approved a private right of action and authorized injunctive relief in private actions seeking to enforce Title VI regulations prohibiting recipient's actions with disparate impacts, in August 1999, it affirmed, without any opinion or explanation, a New York district court's cursory rejection of an implied private right of action under Title VI § 602 regulations, in New York Environmental Justice Alliance (NYEJA), et al. v. Giuliani, et al. a) Chester - Mooted and Vacated In the landmark case of Chester Residents Concerned for Quality Living, the plaintiffs brought a federal court action against the Pennsylvania Department of Environmental Protection, (PADEP), alleging, among other things, violation of EPA's Title VI § 602 regulations in the granting of a waste facility permit in the City of Chester, a community with a predominantly African-American population. The district court dismissed the claim, ruling that the plaintiffs did not have the right to sue in federal court under the Title VI regulations. The Third Circuit reversed the district court, holding in no uncertain terms that a Title VI § 602 implied private cause of action does indeed exist under the regulatory disparate impact standard. The appellate court determined that Guardians, Alexander and the long line of circuit court opinions, all support the conclusion that there is an implied private right of action under Title VI § 602. However the court also found that these cases were simply not dispositive because none of them actually rendered a holding on that precise issue. The Chester court ultimately relied on the three-prong test enunciated by the third circuit in Polaroid Corp. v. Disney and Angelastro v. Prudential-Bache Sec., Inc.(1) 'whether the agency rule is properly within the scope of the enabling statute'; (2) 'whether the statute under which the rule was promulgated properly permits the implication of a private right of action'; and (3) 'whether implying a private right of action will further the purpose of the enabling statute.' After a detailed analysis of each of the factors, and a lengthy discussion of the line of Supreme Court and court of appeals decisions, the Chester court held that: "private plaintiffs may maintain an action under discriminatory effect regulations promulgated by federal administrative agencies pursuant to section 602 of Title VI of the Civil Rights Act of 1964." Notably, the Supreme Court quickly granted certiori, and, to highlight the intensity of the political volatility of this issue, the Court also granted the ultraconservative Washington Legal Foundation, as well as United States Chamber of Commerce and National Black Chamber of Commerce, leave to file amicus briefs. The Washington Legal Foundation challenged the underlying validity of the EPA's "discriminatory effects" Title VI regulations as a whole, claiming they are invalid as a matter of law under the Fourteenth Amendment's intentional discrimination standard. Within weeks of the filing of the Washington Legal Foundation and Chambers of Commerce amicus briefs, the Supreme Court dismissed the entire appeal as moot and vacated the Third Circuit decision, once again leaving a huge void in this area of the law. b) New York Environmental Justice Alliance (NYEJA) - Second Circuit Shenanigans In May 1999, a group of New York City residents and community organizations brought an environmental justice injunctive action to prohibit the City of New York from selling and/or demolishing community gardens, on the grounds that such demolitions constituted racially discriminatory allocation of open green space within the City. The action was brought under both § 601 and § 602 of Title VI, as well as 42 U.S.C. § 1983. In June 1999, the district court denied the plaintiffs' petition for preliminary injunction, finding as a matter of law that, with respect to their Title VI § 602 claim, "... it is unlikely that a private right of action is available to plaintiffs." The court simply rejected out of hand the fact that the majority in Guardians did recognize a private right of action under the Title VI regulations and concluded that "the Chester Residents court's reading of Guardians [citation omitted] is insupportable ...." The court also found that there was no likelihood that plaintiffs would be able to prove intentional discrimination under the Title VI § 601 standard. Finally, the court was absolutely silent as to the viability of the plaintiffs' § 1983 claim, the underlying basis of which was the violation of the Title VI § 602 federal regulations. In August 1999, the Second Circuit affirmed the district courtruling, without any written opinion, explanation or rationale, indicating, however, that "opinion will follow." While the long-term impact of this case is at best uncertain at this time, the subsequent Eleventh Circuit decision in Sandoval v. Hagan helps to more clearly define the viability of proceeding in court directly under § 602. c) Sandoval v. Hagan: The Eleventh Circuit Speaks Up Then, in November 1999, the Eleventh Circuit spoke up, in the case of Sandoval v. Hagan, holding, like the Third Circuit, in no uncertain terms that an implied private right of action exists under § 602 of Title VI. Although not an environmental justice case - rather a challenge under the Title VI § 602 anti-discrimination regulations promulgated by the U.S. Departments of Transportation (DOT) and Justice (DOJ) - the Sandoval decision falls on the heels of the Supreme Court's highly publicized vacating of the Third Circuit decision in Chester, and the Second Circuit's non- decision in NYEJA. In Sandoval, the plaintiffs challenged a 1990 amendment to the Alabama constitution that made English the official language of the state and authorized the legislature to enforce the amendment through the enactment of appropriate legislation. The following year the Alabama Department of Public Safety promulgated a policy requiring all driver's license exams to be administered in English only. The Attorney General advised the department that the English-only policy "might be a violation of Title VI of the Civil Rights Act of 1964, or of the Equal Protection Clause of the Fourteenth Amendment." The plaintiff alleged that the practice of administering driver's license exams in English-only, while providing alternatives for illiterate, hearing- impaired, deaf, and disabled candidates, was discrimination on the basis of national origin. Mrs. Sandoval filed on behalf of all residents who would otherwise obtain a state of Alabama driver's license but for their not being fluent in English. The district court concluded, and the Eleventh Circuit affirmed, that the State Department of Public Safety was subject to the § 602 Title VI federal regulations promulgated by both the Department of Transportation and the Department of Justice. As noted by the Eleventh Circuit, "[t]he district court found that the state policy exerted an adverse and disproportionate impact on non-English speaking residents who applied for an Alabama driver's license." The factual finding of disparate impact was undisputed; the issue on appeal, however, was whether "there is an implied private cause of action to enforce agency regulations promulgated under § 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. at 2000d-1." The Eleventh Circuit held expressly that there is an implied right of action under the disparate impact standard of Title VI, §602 regulations. The court analyzed the prior case law that has either openly acknowledged or at least inferred the existence of a private right of action under the § 602 regulations. Although the court relied on this history to support its holding, at this point, Sandoval is the only published opinion, still on the books, which expressly holds that there is an implied right of action under § 602 of Title VI of the Civil Rights Act of 1964. The Sandoval court cited previous cases from the Eleventh Circuit, as well as cases from seven other circuits and the Supreme Court. The court restated three principles from Lau, Guardians, and Alexander: (1) disparate impact regulations promulgated pursuant to § 602 of Title VI constitute an authoritative construction of Title VI's antidiscrimination provisions; (2) private parties may enforce these regulations to obtain declaratory and injunctive relief; and (3) Title VI's legislative history and scheme unequivocally support an implied cause of action under §§ 601 and 602. These principles, combined with the other case history cited, led the Eleventh Circuit to find a private cause of action implied under § 602 of Title VI of the Civil Rights Act of 1964. Given the highly political nature of this issue, it is in all likelihood only a matter of time before the Sandoval case reaches the door of the Supreme Court. And, we can fully expect that conservative right-wing groups like the Washington Legal Foundation, various Chambers of Commerce and other corporate lobby organizations will rally their forces to again try to muffle the voices of those victims of environmental racism who seek justice in the courts. The question now facing the environmental justice and civil rights communities is whether the use of civil rights court or administrative actions is an effective political strategy. 4.42 U.S.C. § 1983: Direct Cause of Action for Violation of Federal Law An alternative theory of liability in environmental justice cases, one that until now has been rarely pursued, is a direct claim under 42 U.S.C. § 1983 for violation of federal regulations while under color of law. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom or usage of any State, Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In order to prevail in a claim brought under § 1983, the Plaintiffs must establish: 11 Defendant, while acting under color of law; and 12 Pursuant to a "custom policy and practice," with deliberate indifference to the federal rights of plaintiffs; 13 Violated a federal right; 14 Which caused harm to plaintiffs.To date, there is a dearth of case law directly addressing the applicability of § 1983 to federal regulations promulgated pursuant to § 602 of Title VI. In fact, in the recently decided case of NYEJA, et al. v. Giuliani, although the plaintiffs had alleged such a cause of action in their complaint for injunctive relief and fully briefed it to the Court of Appeals, both the district court and the Second Circuit were completely silent on that claim when they granted and then affirmed the defendants' dispositive motion to deny plaintiffs' claim. Although not adjudicated within the context of Title VI § 602 regulations, it has been held that 42 U.S.C. § 1983 provides a remedy to enforce violations of federal laws as well as constitutional rights, unless: 1) The federal law in question "did not create enforceable rights, privileges or immunities within the meaning of § 1983," and 2) The defendants prove that "Congress has foreclosed such enforcement of the federal law in the enactment itself."Under the test for § 1983 actionability as articulated by the Supreme Court in the Wilder v. Virginia Hospital Ass'n, Maine v. Thiboutot and Wright v. Roanoke line of cases, the federal law in question must create an enforceable federal right. This inquiry turns on: [W]hether 'the provision in question was intend[ed] to benefit the putative plaintiff' ... If so, the provision creates an enforceable right unless it reflects merely a 'congressional preference' for a certain kind of conduct rather than a binding obligation on the governmental unit, or unless the interest the plaintiff asserts is 'too vague and amorphous' such that it is 'beyond the competence of the judiciary to enforce.' When conducting this inquiry, as the Second Circuit noted in Marshall v. Switzer, the burden is on the defendant and the presumption favors the finding of a § 1983 remedy. This analysis applies to § 602 regulations insofar as they create "enforceable rights," not to be subjected to federally funded programs which have the effect of subjecting individuals or communities to racial discrimination. In Guardians, three of the plurality Justices, (Stevens, Brennan and Blackmun), expressed their minority view that, despite the statutory intent requirement under Title VI, the § 602 federal regulations, promulgated by the Departments of Labor, Justice and Housing & Urban Development, were "valid federal law" within the meaning of 42 U.S.C. § 1983, and the plaintiffs were thus entitled to relief under § 1983 as a result of their rights being violated under those regulations. The plain statutory language of § 1983 makes specific reference to "the deprivation of any rights, privileges or immunities secured by the Constitution and laws." The D.C. Circuit, in Samuels v. District of Columbia, has held that the statutory phrase "and laws" applies equally to federal regulations. The court relied on the Supreme Court's analysis in Thiboutot as support for the proposition that "§ 1983 provides a legal remedy for the violation of all valid federal laws, including at least those federal regulations adopted pursuant to a clear congressional mandate that have the full force and effect of law. Such regulations have long been recognized as part of the body of federal law."In Wright v. Roanoke, the Supreme Court held that the petitioners in that case, tenants in low-income housing projects, had a cause of action under § 1983 for the violation of both statutory and regulatory provisions governing the amount of rent permitted to be charged by the housing authority. A majority of the five Circuits, as well as the Southern District of New York, each of which have adjudicated this question, have held that federal regulations, having the force and effect of law, are fully actionable under § 1983.The Supreme Court has adjudicated the issue of when a federal regulation has the "force and effect of law." It held in no uncertain terms that when such regulation is issued to implement specific statutory provisions that affect individual rights and obligations under a congressional directive, the regulation has the force and effect of federal law. The federal regulations promulgated pursuant to §602 of Title VI have all been issued precisely because the issuing federal agencies were mandated to do so by Congress. These regulations, including those issued by the EPA, impose mandatory requirements on recipients of federal funding not to engage in conduct that has the effect of discriminating on the basis of race in order to continue eligibility for the funding. In addition, these regulations directly affect individual rights, in that they prohibit the funding recipient from administering its program in such a way that has "the effect of subjecting individuals to discrimination." As such, they have the full force and effect of law as contemplated by the U.S. Supreme Court and are enforceable under § 1983. a) Shifting the Burden: Who Has to Prove There is No Right? Under the test enunciated by the Supreme Court in Wright and Wilder, once it is established that the federal regulation creates an enforceable federal right within the meaning of § 1983, the burden shifts to the funding recipient, i.e. the state actor, to prove that "Congress has foreclosed such enforcement of the statute in the enactment itself." This burden is met only upon a showing that Congress has affirmatively withdrawn the remedy. The Supreme Court has stated in no uncertain terms: "[w]e do not lightly conclude that Congress intended to preclude reliance on § 1983 as a 'remedy' for the deprivation of a federally secured right." The standard of proof necessary to meet the burden is either a showing that "Congress specifically foreclosed a remedy under § 1983," or that "the remedial devices provided in [the law] are sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy of suits under § 1983." Ironically, the actionability of federal regulations or laws under § 1983 is determined by the availability -- or lack thereof -- of a private right of action directly under the regulation. If there is a private right of action directly under the federal law in question, the courts have interpreted its existence as evidence of congressional intent to foreclose a remedy under § 1983. For example, the Second Circuit in Bruneau v. South Kortright Central School District, upheld the dismissal of the plaintiff's § 1983 claim precisely because the federal law in question(Title IX) did provide a private right of action; while in Marshall v. Switzer, it reversed the dismissal of the plaintiffs' § 1983 claim because the federal law in question (Title I) did not provide a private right of action. b) Use § 602 or § 1983? A Legal and Political Decision Where this is relevant to the environmental justice movement, relates back to the strategic question of whether litigation is a viable strategy for the movement. To the extent that there is any reason to consider using the courts to challenge environmental racism as a civil rights violation, and as long as there continues to be uncertainty regarding the existence of a private right of action directly under Title VI § 601 regulations, it is imperative that advocates and activists understand the significance of taking advantage of 42 U.S.C. § 1983. At this point, there should be no doubt that a correct reading of the law supports the conclusion that Title VI "disparate impact" regulations are actionable either directly as an implied right of action à la Sandoval v. Hagan and the line of cases which it follows, or as the violation of a "valid federal law" by a state actor under § 1983. The dilemma facing litigants now is more political than legal. Legal authority overwhelmingly supports the viability of obtaining some kind of relief in the courts under the "disparate impact" standard set forth in Title VI federal regulations. However, the political powers-that-be have, until Sandoval, effectively prevented such an express ruling from the courts. It doesn't take much prescience to believe that Sandoval will be taken up to the Supreme Court. The only current environmental justice case where the court is faced with choosing between these two legal options, is the NYEJA case. The Second Circuit left the issue open by affirming the district court's denial of plaintiffs' preliminary injunction based on Title VI regulations but totally ignoring the plaintiffs' § 1983 argument. It has an opportunity to shed some light on this legal dilemma - whether it will ultimately choose to do so remains to be seen. It would fly in the face of well-established precedent, however, to reject both theories of liability. Until it releases its decision, litigants remain in the dark. B. The Other Option: Administrative Actions and the EPA's History of Nonenforcement As mentioned previously in this article, in addition to bringing an action directly in court, environmental justice litigants can pursue a Title VI administrative claim within the EPA Office of Civil Rights (OCR). The federal regulations promulgated by the EPA pursuant to § 602 of Title VI have been in effect since 1973, but the agency did virtually nothing on this issue until the early 1990's, when the Clinton Administration publicly announced that the EPA would begin enforcing its own Title VI regulations. In early 1994, Clinton signed Executive Order 12898, which required each federal agency to: make environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations ..., [and to] ... develop an agency-wide environmental justice strategy, ... that identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. At the same time, the EPA created the Office of Civil Rights (OCR) to respond to and investigate Title VI complaints specifically. The administrative process for investigating and resolving Title VI complaints by the EPA is set forth in 40 C.F.R. § 7. The EPA has repeatedly asserted its commitment to complying with the Executive Order and to enforcing this nation's civil rights laws, most notably Title VI. This commitment is explicitly set forth in The Environmental Protection Agency's Environmental Justice Strategy, dated April 3, 1995: EPA Administrator Browner accepted the challenge to make environmental justice one of EPA's highest priorities .... As the Administrator said when the President issued the Executive Order [12898, 2/11/94]: 'We will develop strategies to bring justice to Americans who are suffering disproportionately .... Our Goals: No segment of the population, regardless of race, color, national origin, or income, as a result of EPA's policies, programs, and activities, suffers disproportionately from adverse human health or environmental effects, and all people live in clean, healthy and sustainable communities .... Our strategy and further efforts on environmental justice will be based on the following guiding principles: 1. Environmental justice begins and ends in our communities ... 2. EPA will help affected communities have access to information, which will enable them to meaningfully, participate in activities. 3. EPA will take a leadership and coordination role with other Federal agencies as an advocate of environmental justice .... Strong and effective enforcement of environmental and civil rights laws is fundamental to virtually every mission of EPA .... The Presidential memorandum issued with the Executive Order emphasizes that existing laws, including the National Environmental Policy Act (NEPA) and Title VI of the Civil Rights Act of 1964, provide opportunities for Federal agencies to address environmental hazards in minority communities and low-income communities. The Agency further recognizes that it must ... work to identify and respond to any regulatory gaps in the protection of covered populations. In February 1998, the EPA issued its Interim Guidance for Investigating Title VI Administrative Complaints ("Interim Guidance"). Despite its many shortcomings, the Interim Guidance was developed as an important step toward institutionalizing the EPA's purported serious commitment to civil rights enforcement and environmental justice. It was intended to provide a framework for evaluating and processing complaints filed with the EPA's Office of Civil Rights, within the context of the EPA Title VI regulatory requirements already in effect. Despite this espoused commitment, the EPA has fallen far short of that mandate. With a total of nearly 60 Title VI complaints having been filed, there has not been one finding of a violation. In fact, the first and only substantive decision from the OCR was issued on October 29, 1998, almost simultaneously to the passage of a Republican sponsored rider to an appropriations bill placing a "moratorium" on the EPA accepting any new Title VI complaints until the agency issues a final Guidance on Title VI. To this day, there has been no final guidance issued and there remain at least 49 outstanding Title VI administrative complaints still pending, several since 1993. This abysmal history of the EPA's non-enforcement of its own regulations raises serious concerns about the strategic value of pursuing an administrative complaint in this arena. It raises further questions about whether the EPA should be held accountable for engaging in a "conscious policy of nonenforcement." It is by now well understood within the environmental justice movement that the EPA is highly influenced and controlled by the political forces that control its purse strings. Although the filing of an administrative complaint can be used effectively for political organizing and as a means of mobilizing opposition to the siting of a facility in a community of color, it is important for the complainants using such a strategy to understand its limitations. It is equally important that the complainants in any Title VI administrative action not rely on this forum for any meaningful relief. The EPA has simply not fulfilled its legal mandate to decide any of the pending administrative complaints, even if EPA were to, complainants still enjoy fewer procedural and legal rights than respondents in these types of actions the available relief from an administrative claim is far more limited than in a legal action filed in court. 1. Select Steel, An Administrative Travesty A graphic example of the shortcomings of using the administrative process to challenge environmental racism can be seen in the manner in which the EPA responded to and decided the Select Steel case. In June of 1998, the Michigan Department of Environmental Quality (MDEQ) granted a permit to the Select Steel Corporation to build a steel recycling plant in northern Flint, Michigan, adjacent to a largely African-American community that was already overburdened with exposure to environmental hazards. The residents of the community, along with two community-based organizations filed a timely Title VI administrative complaint. In August 1998, the EPA Office of Civil Rights accepted the complaint for investigation. On October 30, 1998, 74 days after it accepted the Select Steel complaint, the OCR issued its first and only substantive Title VI decision in the 25 years that EPA's § 602 regulations had been in effect. As a testament to the intensity of the political and media pressure, the Select Steel case was decided prior to the dozens of other Title VI administrative complaints that had been filed and were pending well before Select Steel. In its decision, the EPA found no Title VI violation and, not surprisingly, de facto, ruled in favor of the State. The EPA's decision in the Select Steel case is deeply flawed on both procedural and substantive grounds: the methodology used is suspect, the data incomplete and the analysis and conclusions simply wrong. Because of the haste with which Select Steel was supposedly investigated, and then analyzed and decided, it is clear that the case was not decided on the basis of sound evidence or analysis but for improper political reasons, including unrelenting political pressure from right-wing advocates and from Michigan decision-makers. The timing, analysis, and substance of the Select Steel decision demonstrate that the EPA, for political reasons discussed below, has effectively abandoned its commitment to "make environmental justice part of its mission ...," as explicitly set forth in its Environmental Justice Strategy. Ironically, Select Steel, chosen by the Agency to be pushed to the "top of the heap," happens to be within 1.5 miles of the site of one of the oldest administrative complaints pending before the EPA, St. Francis Prayer Center v. Michigan Department of Environmental Quality(hereinafter Genesee Power Station case). The Genesee Power Station case was originally filed in 1992, and has yet to be decided by the EPA, despite numerous assurances since 1996 that the decision is "imminent." Meanwhile, the Genesee Power Station is operating, discharging toxic pollutants into the low-income predominantly African American neighborhood, with no determination by the EPA as to whether or not the issuance of that permit violated Title VI. In March, 1999, sixteen, of the more than 20 groups of complainants from the still-pending administrative actions, jointly filed a Petition with the EPA seeking to have the Select Steel decision reconsidered, or, in the alternative, to have the agency officially declare that the basis of the Select Steel decision had no precedential effect on all of the other outstanding claims. The Joint Petition directly confronted the agency's dismal failure to decide any of the Title VI administrative claims, all filed well before the Select Steel case had been filed, and brought the EPA to task for its apparent willingness to cave in to the political pressures from the right, as well as for the purely technical deficiencies of the decision. The Joint Petition strenuously argued that, by putting Select Steel at the forefront of its decision-making process, and by issuing the decision just 74 days after the complaint was accepted for investigation, the EPA: [D]isregarded its purported commitment to 'strong and effective enforcement of environmental and civil rights laws,' and to its own regulatory requirements regarding the timely processing and disposition of Title VI complaints. (fn omitted). As such, numerous serious civil rights violations have gone unabated with the silent complicity of the agency. By continuing to delay on the claims brought by the 16 groups herein -- all submitted prior to Select Steel, and many with extensive supporting documentation and evidence -- EPA is participating in the very activities it seeks to prevent. The dismissal of the Select Steel Complaint was based on a factual determination that there was no "adverse effect" on the community because there was no violation of National Ambient Air Quality Standards (NAAQS).Consequently, the EPA did not even consider the question of "disparate impact," or the fact that the demographic data established that the area from three to six miles surrounding the proposed steel mill site is more than 50% African American. The Petitioners challenged "the methodology which EPA utilized in its haste to reach a decision in Select Steel, as being both inconsistent with the steps set forth in the Interim Guidance for processing Title VI complaints and devoid of the factual and scientific bases for determining 'disproportionate impact."' The Petitioners further asserted that, by deciding the Select Steel case prior to adjudicating the more than 20 other Title VI cases which were already pending before the agency, the EPA established a procedural precedent which in effect, writes Title VI out of its civil rights protocol and analysis in certain situations. The Select Steel decision effectively concluded that the disproportionate siting of polluting facilities in communities of color is acceptable as long as the facility meets the NAAQ standards, a standard which creates a nearly impossible burden for other Title VI complainants to overcome. 2. Politicizing the Administrative Process From the time the Select Steel complaint was accepted for review by the OCR, it was targeted by the opponents of environmental justice. Enormous pressure was put on the community-based complainants in the media and directly by the Governor of Michigan to withdraw the complaint. Equal pressure was put on the EPA by the media, the State of Michigan and legislators in Washington, D.C., who threatened to cut the EPA budget if it continued to act in a manner that they believed was "anti-business." The extent to which right wing political and public relations pressure played a direct role in the Select Steel case is exemplified by the following sequence of events. When the Select Steel case was first filed, it became a primary focus of David Mastio, a journalist for the Detroit News, who has over the years persistently challenged the legitimacy of the environmental justice movement. Mastio, who is a self-described "ultra conservative" and a one-time client of with the right-wing Washington Legal Foundation, in his writing on environmental justice in general and on the Select Steel case in particular, has consistently reported "facts" inaccurately, dishonestly and out of context, in his ideological fervor to invalidate and delegitimatize this issue. In his coverage of the Select Steel case, without any accurate factual support, Mastio first accused the Select Steel complainants of committing fraud and then accused the EPA of funding the Select Steel complaint and of conspiring with community organizations to conjure up fraudulent Title VI claims. Mastio then hired his own demographic "expert" to issue incomplete and misleading information regarding the racial composition of the community surrounding the proposed site of the Select Steel plant. This information was distributed to every politician in the State of Michigan, was repeatedly publicized in his articles and in Detroit News editorials and was utilized by the highest authorities in the State to try to intimidate the Select Steel complainants into withdrawing their Title VI complaint. Politicians relied on this misleading information to take strong public positions against the Select Steel complaint, EPA's acceptance of the complaint, Title VI generally, and environmental justice as a whole. As an obvious result of this combined assault, which coincidentally heightened between August and September 1998, the EPA announced on September 24, 1998 that it would decide the Select Steel case by October 30, 1998. As of the date of that announcement, not a single community member had yet been interviewed, no information had been received from the Michigan Department of Environmental Quality, and the Science Advisory Board (SAB) had not yet responded, even in draft form, to the proposed methodology for scientific investigation of Title VI civil rights complaints. During the investigation, only one interview with complainants was conducted, on September 29, 1998, the very same day of the EPA announcement of its planned October 30 decision date. This firestorm of outside pressures from the media, legislators threatening budget cuts, and state officials coerced the EPA into making a political decision in Select Steel, instead of the reasoned, thoroughly investigated decision it was required to make. EPA's backlog of complaints has been a source of frustration for years. As far back as October 1996, 16 of the then 20 complainants in Title VI administrative cases pending from all over the country submitted a lengthy and detailed letter to the EPA. These complainants protested the undue delay in the investigation and adjudication of their Title VI complaints. Since then, not only has there been little action taken by the EPA on any of the 20 cases described in the letter, but an additional 29 administrative complaints have been filed which are either under consideration or have been accepted for investigation. The failure to act on these civil rights complaints is in direct violation of 40 C.F.R. §7. The EPA has continuously attempted to justify its delays in processing the Title VI complaints. The EPA originally claimed that: 1) it was in the process of issuing its Interim Guidance For Investigating Title VI Administrative Complaints Challenging Permits; and then 2) once the Interim Guidance was issued, it needed to finalize and perfect its methodology, attempting to utilize the Shintech case as its "test case"; and then 3) once it completed the Shintech investigation and devised a proposed methodology, it needed to await the response and recommendations regarding that methodology from its Science Advisory Board. The Select Steel decision could not have been made when and how it was for other than political reasons. Indeed, even Russell Harding, Director of the Michigan Department of Environmental Quality (MDEQ), and a vocal opponent of Title VI applicability to environmental decision-making, stated that he believes that Select Steel was a political decision and that the EPA continues to be subject to political influences. For the last few years, advocates in communities of color throughout the nation - Louisiana's "Cancer Alley," Chicago's "Toxic Doughnut," the north end of Flint, New York's South Bronx, California's barrios, the "waste capital" in southwestern Texas, and others - have been formally requesting prompt and fair investigations of environmental injustices in their communities and receiving no action. Yet, in Select Steel, after a whirlwind two and a half month "investigation," OCR issued its first decision, without a final methodology in place and with a prominent absence of logic. The Office of Civil Rights has been unable to explain why it felt it had to resolve this particular complaint earlier than all the other complaints that have been under investigation for years, not least of which is the Genesee Power Station complaint. The only plausible explanation is the fact that the EPA has been under considerable pressure in the past year to prove that it is not "anti-business" and that it can make quick decisions that will not impede "economic progress." Opponents of the use of Title VI in environmental decision- making, including those who categorically refuse to acknowledge that racism has anything to do with locating highly polluting industrial/hazardous waste facilities disproportionately in communities of color (or even that there is such disproportionate placement to begin with), have used the media and their influence with politicians to threaten the very continued existence of the EPA and its Office of Civil Rights. This group of politicians has fueled the backlash against civil rights by threatening to cut OCR's funding. It is obvious, from the timing and circumstances of the Select Steel decision, that the EPA responded to this pressure by issuing a decidedly "pro- business" decision. It is, unfortunately, equally obvious that during this political climate, environmental justice advocates can count on only one thing from the filing of an EPA Title VI administrative claim: the potential for political organizing with little or no hope of any meaningful relief from the agenc |
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