The EPA’s environmental justice complaint process and federal antidiscrimination laws — India Wrede
By India Wrede
In 1994, President Clinton signed an Executive Order instructing Federal agencies, specifically the EPA, to create an administrative process to document, investigate, and, if necessary, penalize agencies guilty of discrimination by disproportionately impacting minority and low-income communities. Almost 30 years later, the EPA has issued only one formal finding of environmental discrimination; and has never withdrawn funding from any agency. On January 27th, President Biden signed Executive Order 14008, part of which specifically addresses the current administrative process for environmental justice complaints. But how was the EPA able to get away with decades of inaction in the first place? And is President Biden’s new Executive Order an effective solution to this problem?
What has the EPA Been Up To?
Executive Order 12898 uses Title VI of the Civil Rights Act to instruct Federal agencies to implement a complaint process and hold recipient agencies of Federal funding accountable for acts of discrimination based on disproportionate impact. After President Clinton signed the order in 1994, the EPA successfully implemented a Title VI complaint process. First, an individual submits a complaint alleging a recipient agency of EPA funds discriminated. The claim is based on the agency’s disproportionate environmental impact on a minority community. The EPA then investigates whether the disproportionate impact of the agency violates Title VI of the Civil Rights Act. If the investigation proves the agency is guilty, the EPA must recommend a solution the agency. If the agency does not comply, the EPA will withdraw funds or initiate an alternative penalty.
On the surface, the EPA’s methods seem fairly straight forward. However, on closer inspection, the complaint process includes several suspicious processes. One concerning example is the requirement that all complaints must be filed within 180 days the alleged act of discrimination took place. Most acts of environmental discrimination cause long-term health problems, often impossible to detect within 180 days. Between 1996-2013, the EPA rejected half of their complaints without investigation. The majority of complaints rejected were for the 180-day time limit or something similar. The EPA released their first and only formal finding of a Title VI violation in 2017: finding the Michigan Department of Environmental Quality (MDEQ) guilty of discrimination against a low-income majority Black community. The EPA has yet to, however, initiate the solution/penalization process against the MDEQ. The St. Francis Prayer Center of Flint, Michigan submitted their original complaint in 1992. The EPA took 20 years to investigate and find their first and only instance of environmental discrimination, which occurred almost 30 years after the implementation of Executive Order 12898. In other words, the facts do not lie, the EPA’s Title VI process is clearly flawed.
How Did the EPA get Away with This?
The frightening truth is that Executive Order 12898 does not explicitly prohibit the EPA from neglecting their complaint process, nor does it provide a method to ensure the EPA is held accountable. The United States Commission on Civil Rights (USCCR) released two reports in 2003 and 2016 documenting the EPA’s neglect of their Title VI process. Despite these documented reports, the EPA’s complaint process remained unchecked. In general, accountability is a huge issue within Federal antidiscrimination law. The Due Process Clause of the Fifth Amendment guarantees equal protection under the law from the Federal government. Title VI of the Civil Rights Act, however, does not grant individuals the right to accuse the Federal government of discrimination based on disproportionate impact. This interpretation of Title VI is problematic because, unless Federal law includes an enforcement provision, the implementation process of antidiscrimination can go virtually unchecked within Federal agencies. The EPA’s enforcement of the Title VI complaint process demonstrates the importance of including enforcement provisions within Federal laws. President Biden’s new Executive Order reflects the idea of Federal enforcement provisions, but will it be enough to combat the decades of inaction from the EPA?
Can Biden/Harris Do it?
President Biden’s Executive Order 14008 includes several provisions aimed at holding Federal agencies accountable for enforcing Title VI. The order reworks the EPA’s administrative process altogether; but most importantly, it outlines the EPA’s specific responsibilities, and requires the creation of a community notification program. The notification program compels the EPA to release information to the public regarding environmental discrimination.
We must wait and see if Executive Order 14008 successfully changes the EPA’s Title VI process. Keep in mind, however, an individual still cannot sue the Federal government based on disproportionate impact. Until this is reinstated, we must rely on the executive and legislative branches. Even if the order is not 100%, it still establishes essential precedents:
(1) Disproportionate impact is significant in proving discrimination, and
(2) The Federal government requires enforcement provisions for antidiscrimination law.
Hopefully, the Federal government will learn from the failure of the EPA’s Title VI process and begin to implement these ideas throughout all Federal agencies.