THE CENTER FOR PUBLIC INTEGRITY INVESTIGATION: Environmental racism exists, and the EPA is one reason why
THE CENTER FOR PUBLIC INTEGRITY
Environmental Justice, Denied
The foisting of pollution on minority communities in America is racism, albeit a subtler type than has been in the news. With the launch of â€œEnvironmental Justice, Denied,â€ the Center for Public Integrity examines the siting of malodorous dumps and sewage plants near the homes of African-Americans, the spraying of toxic pesticides near schools attended by mostly Latino students, and other environmental problems that disproportionately affect communities of color. The U.S. Environmental Protection Agencyâ€™s Office of Civil Rights is charged with investigating complaints of discrimination filed against state and local agencies that receive EPA funds and, upon unearthing evidence of injustice, making things right. But our investigation shows that the office has not made a formal finding of discrimination in 22 years, Â despite having received hundreds of complaints, some exhaustively documented. As one Louisiana resident told us, â€œAll these complaints to EPA have gotten us nothing â€“ zero.â€
August 3, 2015:Â This story has beenÂ clarified.
The invasion of sewer flies moved residents of University Place subdivision to turn to the U.S. Environmental Protection Agency for help. Darting from a neighboring sewage plant, the flies descended upon the mostly African-American neighborhood in Baton Rouge, Louisiana, with such regularity that one resident posted this warning sign:Â Beware of attack fly.
In 2009, residents grew so sickened by the flies, odors and pollution emanating from the cityâ€™s NorthÂ Wastewater Treatment Plant that they sought out the federal agency that has touted the importance of tackling environmental racism.
â€œThe citizens of University Place Subdivision are still suffering through the dreadful, unhealthy, and downright shameful conditions forced upon this community,â€ wrote Gregory Mitchell, whose mother, Mamie, erected that attack-fly warning atop her home, in aÂ complaintÂ filed with the EPAâ€™sÂ Office of Civil Rights.
A little-known niche within the EPA, the civil-rights office has one mission: to ensure agencies that get EPA funding â€” like theÂ city of Baton RougeÂ â€” not act in a discriminatory manner. The mandate comes fromÂ Title VIÂ of the federal Civil Rights Act of 1964, a sweeping law prohibiting racial discrimination by those receiving federal financial assistance. Experts say the provision presents a significant legal tool for combating environmental injustice.
Time and again, however, communities of color living in the shadows of sewage plants, incinerators, steel mills, landfills and other industrial facilities across the country â€” from Baton Rouge to Syracuse,Â PhoenixÂ to Chapel Hill â€” have found their claimsÂ denied by the EPAâ€™s civil-rights office,Â an investigation by the Center for Public Integrity and NBC News shows. In its 22-year history of processing environmental discrimination complaints, theÂ office has never once made a formal finding of a Title VI violation.
Months after receiving the Baton Rouge communityâ€™s Title VI complaint, the officeÂ rejectedÂ it. Investigators declined to examine the claim that the city had violated the civil rights of black property owners around the North plant, citing a pending lawsuit filed by residents against the city.
By 2012, they had returned to the EPA a fourth time, only to get a fourth rejection. Few communities have been rebuffed more than Baton Rouge. The distinction has left residents like Mitchell feeling as though regulators â€œsay something to blow you off and just forget about it.â€
â€œUnder the EPAâ€™s civil-rights division,â€ he said, â€œnothing is done.â€
– Gregory Mitchell, community activist in Baton Rouge, Louisiana
A pattern of rejection
The Baton Rouge case is extreme but not unique.Â The Center filed a Freedom of Information Act request seeking every Title VI complaint submitted to the office, and every resolution of those complaints, since the mid-1990s. The agency produced records representing most of the complaints handled in that time, but not all. The records, consisting of thousands of pages of documents, cover 265 Title VI cases and stretch from 1996 to mid-2013.
The records reveal a striking pattern:Â More than nine of every 10 times communities have turned to it for help, the civil-rights office has either rejected or dismissed their Title VI complaints. In the majority, the office rejected claims without pursuing investigations. On the few occasions that it did, it dismissed cases more often than it proposed sanctions or remedies. Records show the office has failed to execute its authority to investigate claims even when it has reason to believe discrimination could be occurring, such as in Baton Rouge.
Of the cases reviewed by the Center, the EPA:
- Rejected 162 without investigation;
- Dismissed 52 upon investigation;
- Referred 14 to other agencies, including the departments of Justice, Health and Human Services and Transportation;
- Resolved 12 with voluntary or informal agreements;
- Accepted 13 for investigations that remain open today, the oldest begun in 1996.
The EPA rejected complaints for a host of procedural reasons, records show. The most common reason (95 cases), complaints were denied was because the EPA said their targets did not receive agency funding, as is required by law. Other complaints (62) came in too late for action, it said, because they fell outside a 180-day time limit that the agency has authority to waive. Still others (52) were tossed because of â€œinsufficientâ€ claims, meaning they did not adequately describe the alleged discriminatory acts forbidden under Title VI. The EPA, in essence, requires complainants to have knowledge of civil-rights law and other nuances before filing a case. They are assumed to know, for example, that Title VI does not apply to private companies unless they receive EPA funding.
One thing is clear:Â While the reasons vary, the EPAâ€™s civil-rights office rarely closes Title VI complaints alleging environmental injustice with formal action on behalf of communities of color.
Indeed, as the records reveal, the agency often found allegations â€œmootâ€ precisely because of its own inaction. AgencyÂ regulationsÂ set a 20-day deadline for the office to determine whether it will investigate a case. Yet in cases dismissed asÂ moot â€”Â nineÂ over 17Â years, or 4 percent â€” the EPA took, on average, 254 days â€” excluding weekends and holidays â€” just to make such a jurisdictional decision.
The delay, in itself, is a form of denial.Â At times, the EPA has taken so long to decide whether to open an inquiry that situations on the ground changed â€” an asphalt plant closed, for instance, or a waste facility withdrew its permit application.Â Other times, communities have remained in limbo for years as agency investigators ruled on the alleged discrimination.
In July, five communities â€” in Alabama, Michigan, Texas, New Mexico and California â€” sued the EPA for failing to finish investigations pending for more than a decade. TheÂ litigation, filed by the environmental law firmÂ Earthjustice, challenged what it called the agencyâ€™s â€œpattern and practice of unreasonable delayâ€¦â€ The delays have forced residents to endure pollution from a landfill, an oil refinery and three power plants, the lawsuit said. The EPA itself classifies two of the power plants and the refinery asÂ â€œsignificantâ€ violators of the Clean Air Act.
Even among the small universe of cases sparking action â€” 64 over 17 years, or 25 percent â€” records suggest the civil-rights office rarely closes investigations with formal sanctions or remedies. Under Title VI, EPA officials can correct an act deemed discriminatory by requiring reforms, or overturning decisions. It can also withhold funding or refer cases to the Justice Department for prosecution.
Only nine cases have been settled through agreements brokered between agency officials and targets of complaints. Another three cases have been closed through â€œalternative dispute resolutions,â€ meaning the complainants and the targets hashed out solutions.
Asked about this record, the EPA did not dispute the Centerâ€™s findings. Instead, the head of the EPAâ€™s civil-rights office, Velveta Golightly-Howell, declined to discuss cases prior to her tenure, which began in February 2014. In a half-hour telephone interview with the Center and NBC News, she stressed that the EPA is committed to â€œmaking a visible difference in communities,â€ and is â€œmaking a lot of stridesâ€ to improve its Title VI enforcement.
â€œIt is important to note that â€˜finding a formal Title VI violationâ€™ is not the ultimate objective as [a] civil rights office,â€ Golightly-Howell said in a written response to follow-up questions. â€œThe most important objective is to bring about prompt and effective resolution of cases in order to address discrimination issues as quickly and thoroughly as possible.â€
She acknowledged that â€œthere have been some problems in the pastâ€ processing Title VI complaints.
â€œWe cannot focus on the past because thereâ€™s nothing we can do about it,â€ she said.Â â€œWe can, however â€¦ focus on the present and the future, and thatâ€™s what weâ€™re doing.â€
To advocates, the EPAâ€™s pattern of denials, delays and dismissals speaks louder than the agencyâ€™s words â€” from not only Golightly-Howell, but also AdministratorÂ Gina McCarthy, who in March gave the keynote address at a national conference on environmental justice, in Washington, D.C. Throughout her 20-minute speech, the administrator touted how the agency has promoted environmental justice in disadvantaged communities across the country. Not once did she mention the agencyâ€™s civil-rights office.
Listening to McCarthyâ€™s speech, Richard Moore, an advocate from New Mexico, said, â€œYou have to put the proof in the pudding. At the end of the day, we see no major activity taking place through [the agencyâ€™s] Office of Civil Rights.â€
The dysfunction has been well known to EPA officials for years. Auditors and advocates alike have criticized the agencyâ€™s civil-rights office for such systemic failures as compiling a lengthy backlog, having an opaque complaint process and misconstruing a key legal standard. In the past decade, reviewers, internal and external, have offered critiques.
One of the most damning was a 2011 Deloitte ConsultingÂ reportÂ that concluded the office â€œhas not adequately adjudicated Title VI complaints.â€
The EPA moved slowly to process complaints, Deloitte found. â€œOnly 6% of the 247 Title VI complaints [reviewed by Deloitte] have been accepted or dismissed within the Agency 20-day time limit,â€ the audit stated. The backlog of cases stretched back a decade, to 2001.
The report depicted an office in turmoil. Managers had little ability to track employee performance. Record keeping was spotty. The civil-rights program took few steps to tap into EPAâ€™s larger resources, and connect with state environmental agencies â€” a lack of outreach that left it operating in an insular fashion.
The result: An office that appeared more ceremonial than meaningful, with communities left in the lurch.
Since Golightly-Howell joined the office last year, she said, the focus has been on â€œcreating a robust and revitalized civil rights enforcement program.â€
In the years following the Deloitte audit, the office has taken steps to address its findings â€” tackling its massive backlog, for instance, and issuing two agency-wide orders to create what she called a â€œmodelâ€ civil rights program.
The office has been â€œproactive,â€ Golightly-Howell said, adding a grant condition ensuring that those receiving EPA funding comply with civil-rights law. According to a progressÂ reportÂ released in May, the office is also developing a â€œtoolkitâ€ to help state and local agencies understand the law, as well as a manual for EPA investigators who examine complaints.
â€œThe whole goal is not to have complaints sitting in the office for years and years and years without there being some resolution,â€ Golightly-Howell said.
For communities, the changes have meant little.
That has been true, for example, for residents of the Rogers Road-Eubanks Road neighborhood, in Chapel Hill, North Carolina, whose case has been stuck in the EPAâ€™s Title VI complaint pipeline for eight years now.
The historically African-American neighborhood is the site of an expansive county solid-waste landfill and transfer station collecting auto parts, biological waste, transformers â€” â€œyou name it,â€ said Robert Lee Campbell, of the Rogers-Eubanks Neighborhood Association. In 2007, the association filed a Title VIÂ complaintÂ alleging that local government agencies discriminated against the adjacent black property owners, first siting the landfill there, and then not providing such basic amenities as water and sewer services.Â It followed up with a 2011Â addendumÂ of allegations to bolster its case.
It took nearly a year for residents to hear from the EPAâ€™s civil-rights office, which in 2008 and again in 2011 requested more information. Over the years, Campbell recalled his association and its lawyers sending the agency 12, two-pound boxes of documentation. They fielded occasional phone calls from an ever-rotating roster of agency investigators.
â€œWe were always getting, â€˜Weâ€™re still looking into the complaint,â€™ â€ said Campbell, who has lived 2,500 feet from the dump site since the 1970s. â€œNot a whole lot about what they were going to do to help us.â€
By 2013, the EPA hadÂ deniedÂ some of the residentsâ€™ claims on procedural grounds, butÂ notÂ all. The agencyÂ acceptedÂ the amended complaint for investigation almost a year after the county, responding to residentsâ€™ decades-old political activism, shuttered the landfill. In its place the county has installed trash-disposal operations handling yard debris and electronics waste, along with a recycling center.
Today, the case is languishing on the agencyâ€™s current list of 17 open investigations.
â€œWe have no idea whatâ€™s happening,â€ said Mark Dorosin, of the University of North Carolinaâ€™s Center for Civil Rights, which has handled the complaint. â€œItâ€™s been very frustrating.â€
Cases that have seen action from the EPA since the Deloitte report have not necessarily fared better.
Consider the outcome for residents in Californiaâ€™s San Joaquin Valley, who, as far back as 1994, complained to the EPA about the sulfur and garlic-like chemical odors and the clusters of chronic illnesses surrounding three hazardous-waste facilities there.Â The mostly Latino communities of Kettleman City, Buttonwillow and Westmorland bore the brunt of these impacts, residents said, yet had little opportunity to participate in the permitting processes.
The EPAâ€™s civil-rights office accepted the complaint for investigation in 1995, but took 17 years to examine the allegations. Only after residents had sued the EPA, in 2011, did the agency act.
In 2012, the EPAÂ dismissedÂ the case without ruling on whether the sites discriminated against residents. The agency also said it could trace no adverse health impacts to the three facilities, even though they lie within an area the agency has found exceeds all air-quality standards. EPAâ€™s decision came down in the middle of the lawsuit, which the court then dismissed as moot.Â An appellate court affirmed that decision.
â€œCongress wanted agencies to enforce [Title VI],â€ said Brent Newell, of theÂ Center on Race, Poverty and the Environment, in San Francisco, which was involved in the so-called Padres case, and has filed multiple complaints on behalf of minority communities nationwide. â€œWhatâ€™s the point of having the agency if theyâ€™re not going to do it?â€
Strong odors, swarms of bugs
In Baton Rouge, residents of the University Place subdivision have not given up on the EPAâ€™s civil-rights office â€” yet. Viewing theirs as a classic struggle against environmental discrimination, they have pressed the agency for help â€” again and again â€” in recent years.
â€œI wanted EPA to do its job,â€™â€ said Gregory Mitchell, the lead community activist, explaining why he and as many as 312 other residents have signed on to the Title VI complaints.
When the North sewage plant began operating in 1960, the structure was barely visible to its neighbors. Over the years, the city has transformed it into an industrial complex stretching for blocks, separated from houses by a two-lane road. As the plant grew larger, community staples faded. A ballpark was closed, a community store shuttered. In their place came the flies and the stench.
State records document the hazards.
In 1998, a memo from the Louisiana Department of Health and Hospitals detailed â€œstrong odorsâ€ coming from the sewage plant, and â€œfilter flies nesting all under carport walls and side entrance doorâ€ at Mamie Mitchellâ€™s house adjacent the sewage plant. In 2009, the same department documented, again, â€œflies on the windows, around the doors, and on the walls under the carport.â€
The problem was so bad, Mitchell said, that the city used to supply her with air fresheners and boxes of bug killers. Still, the swarms kept coming, fouling the outdoor calm she said she found when she moved to the house in 1972.
By the time she and other residents turned to the EPAâ€™s civil-rights office six years ago, they had long since sued the city. Their lawsuit, filed in 1996, was stuck in the courts for more than a decade. It ended in 2010 with a ruling that the plaintiffs were not entitled to recover personal-injury damages.
Clean Water ActÂ litigationÂ filed by the residents and a local environmental group eventually yielded some relief, helping to lay the groundwork for a city vote in 2013 to relocate some away from the sewage plant and to create a â€œbufferâ€ area, a process that is ongoing.
All the while, residents have pushed the EPA for help. Gregory Mitchell did not sit idly as the civil-rights office weighed his requests for action, and then dismissed them starting in 2010. He peppered regulators with constant pleas.
â€œWe the citizens/I would like an update on the status of the civil rights and EJ [environmental justice] paper work which has been in your office for a very long time,â€ he wrote in May 2012.
An agency official asked him to include the EPA file number with his emails. Mitchell did so that June, and added another plea. â€œWe have been in constant contact with your office over the years,â€ he wrote. â€œWe consent again to your office to do what is needed, because our civil rights and EJ rights are continuing to be violated.â€
A day later, June 6, 2012, Mitchell asked for a written status update. â€œPlease detail what your office has done, is doing, and will continue to do,â€ he wrote. â€œOur community is still suffering.â€
Another official told him his latest complaint was still under jurisdictional review, meaning the agency was considering whether to open an investigation. By August of 2012, plant criticsâ€™ patience was wearing thin.
â€œWhy is this office taking so long to accept our claims,â€ Mitchell wrote the EPA. â€œTime for this office to take action and not play games with our lives.â€
The EPA closed that complaint, like the previous complaints. Its final rejection letter said Mitchell did not cite a specific allegation within the 180-day window. â€œOCR independently could not identify a specific date of an alleged discriminatory act.â€
Mitchell said the community lives with the smells and sewer flies every day. Over the years, he said, agency investigators have mentioned other reasons the civil-rights office might deny his claims â€” questioning whether the city was receivingÂ EPA funding, for instance.
â€œAll these complaints to EPA have gotten us nothing â€” zero,â€ he said in a recent interview. â€œItâ€™s as if the city did nothing, and this is the way people are supposed to live.â€
He has filed a fifth, still-pending complaint to the civil-rights office.
Asked about Baton Rouge, the EPA referred to its rejection letters explaining why the cases were closed. The agency said it has helped the community in other ways, supporting an agreement by the city council to relocate residents away from the sewage plant, and â€œto create a 300-foot buffer zone around the facility.â€ Under a U.S.-city consentÂ decreeÂ dating to 1988, the agencyâ€™s regional office in Dallas has monitored North plant operations. The decree settled an EPA enforcementÂ actionÂ brought against the city after years of water pollution violations.
â€œAlthough the OCR rejected the referenced complaints, the Office supported EPA Region 6â€™s other efforts to mitigate environmental health issues stemming from the [North]Â Wastewater Treatment Plant,â€ the agency said in a written statement.
The plant is undertaking $24.1 million in odor- control projects as well, according to the agency. EPA officials â€œcontinue to monitor the implementation of these efforts,â€ the agency said.
Many residents have now chosen to flee. Even the Mitchell family, long the neighborhoodâ€™s holdout, has left the subdivision in recent months. Still residing in Baton Rouge, Gregory Mitchell said his family as well as his mother and her siblings do not miss the malodorous sewage plant. But they had to abandon homes in which they had lived for many years and neighbors to whom they had grown close.
â€œOur community is gone. Itâ€™s no longer there,â€ said Mitchell, who, if rejected yet again, plans to file a sixth Title VI complaint with the EPA.
â€œThatâ€™s a total civil-rights violation,â€ he said. â€œTell me thatâ€™s not a civil-rights violation.â€
Clarification, August 3, 2015, 9:28 a.m.: An earlier version of this story said that Title VI does not apply to private companies. TheÂ phrase “unless they receive EPA funding” was added for clarity.