Karen C. Bennett is a partner in the Washington, DC office of E&W Law.
On August 8, 2023 the Michigan Department of Environment, Great Lakes & Energy (EGLE) entered into an informal agreement with the Environmental Protection Agency (EPA) to resolve complaints filed under Title VI of the Civil Rights Act by environmental justice groups in Flint, Michigan. The complaints alleged discrimination under Title VI of the Civil Rights Act of 1964, EPA’s regulations implementing Title VI at 40 CFR Part 7 and other federal anti-discrimination statutes.1 The allegations were aimed at EPA’s approval of a Clean Air Act permit for the AJAX Asphalt Plant and whether EGLE’s administration of its air permit discriminates or has a discriminatory effect under Title VI and EPA’s Part 7 regulations. The agreement resolves the complaint finding no non-compliance with federal non-discrimination laws and regulation and sets forth EGLE’s commitment to enhanced local community engagement, increased air monitoring, evaluation of the role of local zoning laws on EGLE permitting decisions, and funding for a community-led public health assessment.2
Similarly, on June 27, 2023, EPA announced a decision to close complaints alleging civil rights violations by the Louisiana Department of Environmental Quality (LDEQ) associated with Clean Air Act permits for two manufacturing facilities in the predominantly black St. John the Baptist Parrish, Louisiana.3 After LDEQ challenged EPA’s authority to enforce environmental justice claims alleging disparate impact, EPA decided not to initiate any further action under Title VI or other civil rights laws regarding these Complaints.4 In the case of LDEQ, EPA committed to conduct a cumulative impact assessment in the area to include the totality of exposures to combinations of chemicals and non-chemical stressors and their effects on health, well-being, and quality of life outcomes.5 LDEQ is invited but not required to participate.
Environmental justice stakeholders and advocacy groups criticized EPA for its “watered down resolution agreement” and retreat from enforcing Title VI claims. Others called on EPA to disavow any authority to enforce claims of discriminatory effects under Title VI.6 EPA did not acknowledge any limits on its authority, and these actions may signal an important shift in the agency’s strategy for implementing the administration’s ambitious environmental justice policies.
First, EPA appears reluctant to test its authority to enforce claims of discriminatory effect under Title VI. The Supreme Court has determined that Title VI protects against intentional discrimination7 and questioned whether EPA’s regulations that prohibit programs or activities that have the effect of subjecting individuals to discrimination are legally valid.8 EPA seems to ignore that most circuits that have considered the issue agree that EPA cannot proscribe (in regulation) activities that have a disparate impact on protected groups when such activities are permissible under Title VI.9 EPA also fails to acknowledge that in 2020, the Department of Justice amended its regulations implementing Title VI to align with the Supreme Court in Alexander v. Sandoval and with the conduct Congress intended to prohibit when enacting Title VI; however DOJ never published the final rule.10 EPA’s closing of these investigations suggests the agency prefers to avoid answering these important legal questions.
Second, preferring not to resolve the legal uncertainty, EPA has pivoted to focus on developing the “science” to support cumulative health effects that can be used in environmental permitting to show disproportionate burden. This approach is consistent with EPA’s position that compliance with federal environmental laws does not necessarily mean compliance with federal civil rights laws11 and the agency’s assertion that when a permitting decision has a disparate impact based on race, color, or national origin, it raises a potential violation of Title VI. EPA has maintained that certain federal environmental statutes allow for and may even require consideration of environmental justice, including, according to the agency, NEPA, CWA, CAA, SDWA, and RCRA.12 EPA’s “retreat” appears to be no retreat at all.
EPA’s focus on using its influence to force the creation of heavily funded, locally driven programs for developing place-based health-risk assessment forms the basis for EPA to leverage mitigation and limitations on operational capacity or even deny a permit. For example, in the case of the Michigan AJAX plant, EPA requested that EGLE deny the permittee’s request for authorization to use certain alternative fuels in its operations and require emission restrictions beyond that required under EGLE’s air program. A court upheld these requirements based solely on environmental justice concerns.13 Neither EGLE nor AJAX chose to appeal the decision.
EPA’s actions do not represent a retreat from implementation of environmental justice through permitting but rather, indicate the agency’s intent to continue an aggressive campaign of using federal resources to leverage private investment in addressing cumulative environmental burden.
- See Initiation of Investigation, EPA External Civil Rights Compliance Office, Office of General Counsel, Reply to: EPA File No: 01RNO-22-R5, Lilian Dorka, Mar. 11, 2022.
- Resolution Agreement at pg. 4-5.
- 01R-22-R6 and 04R-22-R6 Administrative Closure Letter for LDEQ (epa.gov).
- Id. at 4.
- See Kevin S. O’Scannlain, Louisiana v. EPA: A Chastened Agency Retreats on Environmental Justice, For Now, WLF Legal Backgrounder, July 14, 2023.
- Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
- Id. at 282.
- The Third, Fourth, Eleventh and Ninth Circuits agree with Sandoval that agency rulemaking to implement Section 601 of Title VI may effectuate only those rights already created by the Act, See S. Camden Citizens in Action v. New Jersey Dep’t of Envtl. Prot., 274 F.3d 771, (3d. Cir. 2001); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987); Harris v. James, 127 F.3d 993, 1008 (11th Cir. 1997); Save Our Valley v. Sound Transit, 335 F.3d 932, 937 (9th Cir. 2003).
- See Department of Justice Amendment of Title VI Regulations, 28 CFR Part 42, CRT Docket No. 140: AG Order No. RIN 1190-NYD, Final Rule.
- See Title VI, the Civil Rights Laws, and Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions, Aug. 2022, pg. 7, https://www.epa.gov/external-civil-rights/ej-and-civil-rights-permitting-frequently-asked-questions.
- See EPA, EPA Legal Tools to Advance Environmental Justice (2022), https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-justice.
- City of Flint v. Michigan Dept. of Environment et al., unpublished opinion per curiam of the Michigan 7th Circuit Court, Consolidated Case 2022-116871-AA, decided June 20, 2023 (Event No. 98-CG).