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Biden’s Environmental Civil Rights Effort Wrestles With Caseload

May 3, 2022, 9:30 AM

President Joe Biden’s administration is prioritizing environmental civil rights cases, with the Justice Department joining the EPA to turn the dial on a yearslong struggle to manage a growing list of complaints.

Current cases in front of the Environmental Protection Agency’s External Civil Rights Compliance Office include discrimination allegations relating to the granting of permits for hog farms in North Carolina, health impacts of air emissions in Louisiana, and pollution problems in Michigan.

“What you’ve seen is this administration taking a pause and looking at some decisions by state regulatory agencies,” said Byron Brown, a former EPA associate deputy general counsel and now senior counsel at Crowell & Moring LLP.

Individuals and groups looking to resolve discrimination claims rely on the EPA civil rights office to file a bulk of civil rights complaints, including “disparate impact” claims that result from things like highways and other infrastructure projects. Bringing these cases to federal courts is often too much of an uphill climb, since Supreme Court precedent sets a high bar for “intentional” discrimination.

The EPA is still “wrestling” with a backlog of cases at the office, according to University of New Mexico law professor Clifford Villa. But things are improving, he says.

“There’s been a substantial increase in funding for environmental justice at EPA, so hopefully they’ll be able to channel some of those resources into this office,” Villa said.

The Justice Department is also getting involved in the effort, recently launching a recent first-of-its-kind investigation into local sewage programs in marginalized Alabama communities. DOJ’s Environment and Natural Resources Division responsible for that investigation has asked for $1.4 million in new funding for a new 17-person office to create a new environmental justice office to work on civil rights cases.

President Joe Biden issued an executive order on his first day of office directing agencies to fix inequities in their programs that act as barriers to equal opportunity. But Title VI—the statute that allows individuals to bring discrimination complaints against programs with federal funding—is limited as an enforcement tool because it only applies to programs or activities that get federal funding.

Under Biden, the EPA is trying to pivot from a reactive footing to an active one, meaning it will aggressively look for civil rights violations rather than waiting for complaints to filter in. Both the EPA and DOJ included civil rights goals in their recent strategic plans.

“This agency wants to be a civil rights agency,” Lillian Dorka, director of the EPA’s external civil rights compliance office, recently told Bloomberg Law.

Dorka said her office is receiving “more complaints than ever before” under the Biden administration, with more than 20 since the fiscal year began. And the office has already accepted two this year filed by the Southern Environmental Law Center, according to the group’s senior attorney Chandra Taylor.

Here are a few of this year’s noteworthy EPA and DOJ investigations to watch.

North Carolina

The EPA agreed in January to take up an investigation into alleged discrimination by the North Carolina Department of Environmental Quality against Black and Latino communities.

The communities claim the agency granted permits to four Smithfield-owned hog farms that sell the byproducts of pig waste “lagoons” as renewable energy sources. Some of the extra waste is sprayed onto nearby fields, infiltrating water systems and homes in Duplin and Sampson counties.

The lagoons of waste that create this alternative energy source are compounding negative environmental outcomes for neighboring communities, according to SELC’s Taylor, whose organization is at the helm of the complaint.

“The biogas facility’s a big issue in terms of disparate adverse impact,” she said.

Louisiana

The EPA opened three civil rights investigations into two Louisiana state agencies in April, in response to charges of racial discrimination.

Two of the investigations respond to claims that the Louisiana Department of Environmental Quality’s air pollution control program subjects Black residents to discrimination and disproportionate health and environmental impacts. Another investigation stems from allegations the state Department of Health is engaged in an ongoing policy or practice of discrimination against Black residents of St. John the Baptist Parish, on the outskirts of New Orleans.

The EPA wants to know whether the DEQ’s actions, or failure to act, in response to air emissions from the Denka Performance Elastomer plant violate Title VI, according to an agency statement. The agency will also scrutinize DEQ’s decision to issue 14 new air permits to a Formosa facility in St. James Parish.

A separate investigation will scrutinize whether the Black residents of St. John the Baptist Parish, including students at an elementary school, have been subjected to racial discrimination by the health department. Some of the allegations include that the agency didn’t provide residents with necessary information about health threats.

“In the past, there weren’t that many Title VI cases,” Earthea Nance, the EPA regional administrator with oversight over Louisiana, recently told Bloomberg Law. “Under our current policy environment, this is now considered a good tool to use.”

Michigan

Regulators in Michigan continue to surface in civil rights complaints from advocates, with multiple complaints this year over emissions from automotive and asphalt plants in Flint and Detroit.

The civil rights office announced last month that it will probe whether the Michigan Department of Environment, Great Lakes and Energy granted permits to facilities that add to pollution problems in already overburdened, predominantly Black communities.

The office determined during the last days of the Obama administration that water crises in the city of Flint amounted to actual discrimination—the first and only time the office has ever made that formal finding. But continual complaints against regulator’s treatment of marginalized communities “confirms that there is some sort of profound race discrimination happening in the state of Michigan,” Villa said.

Colorado

The External Civil Rights Compliance Office told Colorado regulators last month it will be reviewing whether or not the Colorado Department of Public Health and Environment is administering its air pollution programs in accordance with civil rights laws.

In a separate complaint filed to the EPA’s inspector general, whistleblowers from the state’s Air Pollution Control Division allege that air modeling data was stymied in order to quickly grant noxious gas permits. Denver’s air quality is among the worst in the U.S., particularly for ozone.

Alabama

The Justice Department launched an investigation in November 2021 into alleged discrimination in Alabama’s wastewater disposal and disease programs, the first ever Title VI Environmental Justice investigation case to be examined through the DOJ.

The Alabama Department of Public Health and the Lowndes County Health Department will be scrutinized by the Justice Department’s Civil Rights Division to investigate claims that the local offices barred Black residents in Lowndes County from programs to mitigate raw sewage problems in the area.

Since residents don’t have access to municipal sewage systems or expensive private systems, sewage backs up into homes and wooded areas, causing illnesses like stomach flu and hookworm.

“It’s still just this this glaring example of race discrimination that has not been fixed,” Villa said of the case.

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com