(Please Note: This article has been updated to include a statement from the Michigan Department of Environmental Quality.)

In decisions that indicate the fox is guarding the hen house in some cases, EPA’s External Civil Rights Compliance Office has determined that state environmental agencies in Michigan, New Mexico and North Carolina failed to adequately protect the civil rights of residents by taking or allowing actions that had a disparate impact on the basis of race, color or national origin.

Two of three cases examined by the External Civil Rights Compliance Office were part of an unreasonable delay lawsuit filed by Earthjustice in 2015 on behalf of five communities around the country whose cases had languished for years at EPA.

The Earthjustice lawsuit – filed on behalf of environmental and community groups – charged EPA with failing to fulfill its legal obligation to complete investigations in 180 days after opening them. EPA accepted all five complaints more than 10 years before the lawsuit was filed.

“Credit for the EPA’s movement on civil rights complaints goes to the communities and groups that pushed hard for discriminatory practices to be addressed,” said Marianne Engelman Lado, a former Earthjustice attorney who is now a clinical professor at Yale Law School. “This development falls short of what communities sought in a number of ways, but it’s at least a step forward that EPA has finally acted on these complaints.”

Michigan Department of Environmental Quality

One of those cases was a discrimination complaint filed in 1992 involving the placement of the CMS Energy Corp.’s Genesee Power Station, a wood-burning power plant in a black neighborhood in Flint, Mich. EPA stated in a letter dated Jan. 19 that, “The preponderance of evidence supports a finding of discriminatory treatment of African-Americans by MDEQ.” 

This only is the second finding of discrimination that EPA has made in its history.

Under Title VI of the Civil Rights Act of 1964, no public or private entity receiving federal funds can discriminate. EPA regulations make clear that recipients of federal funds can’t take actions that have a disparate impact on the basis of race, color or national origin if those impacts can be avoided.

“Communities of color and schoolchildren have had to grow up near this horrible power plant and be subjected to its harmful emissions,” said Father Phil Schmitter, of the St. Francis Prayer Center, who filed the complaint and has been represented by the Sugar Law Center for Economic & Social Justice since the complaint was filed in 1993. “We know that it has had a disproportionate impact on a mostly black community near the plant in Flint, Michigan, and the EPA’s investigation failed to recognize that.”

EPA found substantial evidence that the Michigan Department of Environmental Quality engaged in discrimination in the public participation process for a permit issued in the early 1990s to operate the Genesee Power Station in Flint, Mich. But the agency also said MDEQ failed to establish safeguards to guarantee compliance with nondiscrimination laws.

“EPA did recognize the MDEQ treated black people and white people quite differently during the public participation process, it was discriminatory, and was detrimental to people of color who wanted to speak out,” Schmitter added. “It’s unbelievable that it took EPA decades to make this finding, but it’s important to send a clear message to MDEQ, even now, that it needs to change the way it does business.”

EPA recommends that MDEQ implement a policy to guarantee public participation and involvement; implement a system for receiving and responding to environmental complaints; and post notice to advise the public of nondiscrimination laws and the policies and process for filing a discrimination complaint.

Michael S. Shore, director of communications for MDEQ, provided this statement to EHSToday.com:

"The EPA letter of Jan. 19, 2017, contains misstatements of fact and unsubstantiated allegations that should not go unchallenged. Before we address those issues, it should be noted that the Michigan Department of Environmental Quality works in collaboration with the EPA on dozens of contamination, remediation and pollution prevention matters every month. It is noteworthy that the Jan. 19 letter does affirm that in the 24 years since this permit was approved there has been no harm to public health from the facility.
 
We will continue to work with EPA despite the letter’s misstatements of fact. The claim of racial discrimination in the public hearing/public comment period was adjudicated long ago and rejected at both state and federal levels. The EPA Environmental Appeals Board found, in 1993, no support for such a claim. This verdict was repeated in the Michigan Circuit Court and Court of Appeals in 1998. The EPA letter ignores these MDEQ favorable decisions. Additionally, the letter alleges a failure over 30 years to provide foundational non-discrimination programs. If this is true, it is also true that EPA, during that same 30 years, never claimed MDEQ non-compliance.
 
Beyond these points, we hold  to robust public participation processes that enable ample public input and inform our decision-making on many key environmental matters.   
 
We work in partnership with the EPA on a daily basis to protect the public health and environment of Michigan. That mission will not change."

New Mexico Environment Department

In a separate civil rights complaint filed in 2005 over the alleged discriminatory siting of Triassic Park, a proposed but never built commercial hazardous-waste disposal site in Chaves County, N.M., EPA entered into an informal resolution agreement with the New Mexico Environment Department (NMED).

In that case, community residents accused NMED of failing to examine disparate impacts on the basis of race, color or national origin; failing to provide effective means of public participation for people with limited-English proficiency; and engaging in a statewide pattern and practice of discriminatory permitting, including discriminatory handling of the public participation process.

“Until now, New Mexico has not paid enough attention to the effects that polluting facilities can have on communities of color and low-income communities throughout the state,” said Deborah Reade of Citizens for Alternatives to Radioactive Dumping. “Also, the state environment department has not made it easy for these communities to participate. It took far too long to get to this point.”

According to a letter from EPA dated Jan. 19, NMED has agreed to review its nondiscrimination procedural safeguards and take steps to bring the program into compliance, including publishing notice of nondiscrimination laws and information about how to file a complaint on its website.

“Finally there’s an agreement in place that should lead to more equitable public participation so communities’ voices are heard when permits to pollute are being considered,” said Reade, who warned, “We’ll be watching to make sure that New Mexico implements the agreement.”

North Carolina Department of Environmental Quality

In a third case filed two years ago involving the discriminatory permitting of industrial hog farm operations, known as CAFOS, in eastern North Carolina, EPA issued a “letter of concern.”

Although the discrimination investigation is not complete, EPA expressed “deep concern” that African Americans, Latinos and Native Americans were being subjected to discrimination from the North Carolina Department of Environmental Quality’s swine waste permit program.

The predominantly African-American communities in eastern North Carolina impacted by the hog waste from CAFOs complained of the stench, increase in flies and truck traffic. Research shows that people living and going to school in proximity to these facilities experience increases in asthma and respiratory illnesses, among other health problems.

The letter raised concern that these problems are being felt “by large segments of communities of color.”

“Communities of color in rural North Carolina have suffered from the horrible conditions caused by the hog industry for a long time,” said Naeema Muhammad of the North Carolina Environmental Justice Network. “The fact that EPA called for NCDEQ to address the problem is an important step in trying to get some relief.”

The EJ Clinic at Yale Law School, Earthjustice and the UNC Center for Civil Rights represented the North Carolina Environmental Justice Network, Rural Empowerment Association for Community Help and Waterkeeper Alliance on their civil rights complaint.

EPA made preliminary recommendations, including calling for a meeting with NCDEQ to explore an informal resolution agreement that would mitigate adverse impacts experienced by residents. In addition, the agency called on NCDEQ to evaluate whether its policies and procedures fulfill nondiscrimination requirements of federal law. 

Scathing Reports Took EPA To Task

The letters issued in these cases follow substantial pressure over the last 18 months.

In September, the United States Commission on Civil Rights published a scathing report, which found the EPA’s Office of Civil Rights fails to fulfill its civil rights responsibilities.

In 2015, the Center for Public Integrity, in its Environmental Justice Denied series, found the Office of Civil Rights dismissed nine out of every 10 complaints alleging environmental discrimination and never formally found a violation of Title VI of the Civil Rights Act, despite receiving hundreds of complaints.