March 7, 2017.  In one of his earliest actions as North Carolina’s Secretary of Environmental Quality, Michael Regan sent a  letter to the editor publicly responding to a U.S. Environmental Protection Agency (EPA)  “letter of concern” about N.C. swine farms.   EPA sent the letter as part of an ongoing investigation of a  2014 environmental justice complaint against the N.C. Department of Environmental Quality (DEQ)  under Title VI of the Civil Rights Act of 1964. The complaint filed by Earth Justice, the Rural Empowerment Association for Community Help (REACH) and the Waterkeeper Alliance argued that a state permit for swine waste systems discriminates against African-Americans, Latinos and Native Americans by allowing members of those minority communities to be disproportionately harmed by air and water pollution associated with the swine waste.

An attempt at mediation of the complaint failed in 2016. The break down in negotiations led  to a new allegation that DEQ violated federal rules against intimidating a person who has complained of discrimination.   In 2016,  EPA resumed active investigation of both complaints. (See this NC Policy Watch story for a helpful timeline of action on the complaint.) EPA’s January 12, 2017 letter of concern identifies gaps in the state’s environmental justice response and also recommends steps DEQ should take to resolve the complaint.

This is the first of two blog posts looking at the intersection of civil rights law and environmental protection programs. The first blog post will describe the legal basis for  the environmental justice movement and some of the practical challenges of applying civil rights law to environmental permitting decisions.  A later blog post will provide more detail on the Earth Justice/REACH/Waterkeeper Alliance  complaint and EPA’s recommendations.

The Civil Rights Act of 1964 and the environment.  Under Title VI of the Civil Rights Act of 1964, no person “can be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” based on race, color or national origin. (See 42 U.S.C. § 2000d.)  The anti-discrimination law applies to any state agency receiving federal grant funding, including DEQ programs to implement the Clean Air Act, Clean Water Act, Safe Drinking Water Act and other federal environmental laws.

Federal rules applying the Civil Rights Act to  EPA-funded agencies  (40 CFR Part 7) provide a little more detail, but focus on discrimination in employment, contracting and location of public infrastructure.  Those  nondiscrimination requirements mirror conditions on many other types of federal contracts and grants.  The rules also require state programs to designate a person to receive discrimination complaints and to provide a grievance procedure.

Over time, a movement developed to  give greater meaning to language in the Civil Rights Act  guaranteeing the “benefits” of federally funded environmental protection programs without regard to race, color or national origin. The environmental justice movement grew out of concern that minority communities had been denied the benefits of environmental protection in several ways, including:

♦ Disproportionate siting of facilities associated with environmental risk (such as  hazardous waste facilities)  in minority and low income communities.

♦ Greater exposure of minority residents to high levels of pollution and environmental contamination.

♦ Weak enforcement of environmental standards in minority and low income communities.

Over the last thirty years,  a number of studies have looked at the relationship between race,  income and risk of exposure to environmental harm. The National Institute of Environmental Health Services has published a bibliography of studies related to environmental justice that can be found here .

Environmental permitting as a civil rights issue.    Many histories of the environmental justice movement cite EPA’s permitting of a  hazardous waste landfill in a majority  African-American community in  North Carolina as an early environmental justice flashpoint. See: EPA’s environmental justice timeline and the federal Department of Energy’s brief  history of the environmental justice movement.  The 1982 construction of the Warren County landfill, built for disposal of PCB-contaminated soil,  highlighted a new civil rights question:  Do permit decisions made under racially neutral environmental standards still result in a greater pollution burden on minority and low income communities?   

The political and legal battle over the Warren County landfill raised two interconnected issues common to many environmental justice controversies: 1.  Was the decision to put the PCB landfill  in a community with a largely  minority population (greater than 60% African-American) influenced by race?  The concern was not that state officials had an affirmative intent to harm African-Americans, but that the state rejected more suitable sites to  put the landfill in a community where residents had little political power to resist. 2. Did the U.S. EPA permit for the landfill fail to provide adequate safeguards against environmental harm?

Immediately after construction of the Warren County landfill,  two members of Congress asked the General Accounting Office (GAO) to look at the  first question.  The GAO study of hazardous waste landfills in  eight southeastern states (including North Carolina)  found in part :

There are four offsite hazardous waste landfills in [the] eight States. Blacks make up the majority of the population in three of the four communities where the landfills are located. At least 26 percent of the population in all four communities have income below the poverty level and most of this population is Black.

Early efforts to consider disproportionate impacts to minority communities in environmental permitting.   An Executive Order and Memorandum on Environmental Justice issued by President Clinton in 1994 represents one of the first federal efforts to address environmental justice in permitting.  The goal of the Executive Order and memo, which directly applied only to federal agencies,  was to   “prevent…minority communities and low-income communities from being subject to disproportionately high and adverse environmental effects”. The memo directed federal agencies to:

1. Include impacts to minority and low income communities as part of  environmental review.  Environmental impact statements prepared  under the National Environmental Policy Act (NEPA) should evaluate the human health, economic and social effects on minority  and low-income communities and require mitigation of significant impacts.
   
2.  Reach out to the community.  During the environmental review, the federal agency should consult with the community about potential effects and mitigation measures and make meetings, documents and notices easily accessible.
   
3. Consider air quality impacts of federal agency actions on minority and low-income communities.  EPA should  ensure that review of the air quality impacts of a  proposed federal action includes consideration of the  impact on minority and low-income communities. 
4. Provide access to information.  Federal agencies should provide  minority and low income communities with  access to public information on  human health,  environmental planning, regulatory requirements and enforcement standards. 

In short, the executive order and memo focused on process —  outreach, information, analysis of impacts and mitigation.  It did not change any environmental permitting standards.

What does the Civil Rights Act of 1964 require of federally-funded state environmental permitting programs? EPA has struggled to provide clear guidance to the states on how to apply the Civil Rights Act of 1964 in state environmental permitting programs.  A 2014 EPA plan, Considering Environmental Justice in Permitting , set out a roadmap for considering environmental justice in federal and state permitting. EPA’s implementation plan proposed several years of additional work  with a goal of completing work on the guidance in 2017.

The challenges.  Addressing environmental justice concerns in permitting  has some basic challenges:

♦ Civil rights laws and environmental protection laws speak different languages. Civil rights law focuses on discrimination based on race, color or nationality;  environmental laws and rules set permitting standards based on public health and ecological impacts without regard to community demographics.  An environmental permitting standard may not always be effective, but on its face the standard applies the same way in wealthy subdivisions, poor neighborhoods, and low income communities.

♦ Permitting agencies rarely have the authority to decide where a proposed  facility will be located.  DEQ cannot decide that a swine farm or  landfill or hazardous waste storage facility would best be located here rather than there.  As the permitting agency, DEQ responds to a permit application that proposes a specific type of facility in a particular location. DEQ can deny the permit — but only if the project would violate  environmental standards in state law or rules and those standards do not make community demographics a  permitting criteria. Instead, the standards focus on environmental and public health impacts without regard to the nature of the community likely to be affected.

♦  Race-neutral factors like the availability of suitable land and land cost often drive the permit applicant’s site selection.  Large acreage at low cost often correlates to rural land, low income communities and a greater impact on minority populations.

What permitting programs can do. State environmental permitting programs can use the kind of outreach described in the Clinton memo to actively bring minority residents into the permitting process.  Many state environmental programs now also have permit criteria that include consideration of  the cumulative impacts of proposed and existing facilities  in the community.  That allows the permitting agency to look beyond the individual impact of a proposed facility and prevent environmental harm caused by clustering multiple  pollution sources in a minority or low income community.

Does the Civil Rights Act require more? The environmental justice  complaint about N.C. swine farms and EPA’s letter of concern suggest the state’s obligations may go further. More about that in the next post.