EPA plans more aggressive civil-rights reviews

Introduction

The Environmental Protection Agency’s Office of Civil Rights will more aggressively evaluate recipients of EPA funding to ensure their compliance with federal civil-rights laws, the office said in a draft Strategic Plan released last week. Billed as an effort that “invigorates the EPA’s civil-rights mission,” the five-year plan commits the agency for the first time to conduct targeted compliance reviews.

Beginning October 1, the EPA’s civil-rights office will boost the number of proactive reviews of mostly state and local agencies by investigators on the ground. Targets will be chosen based on “statistical data, prior complaints, reports by other EPA offices” and other factors, the plan states. By fiscal year 2018, the office promises to complete six compliance reviews of recipient agencies per year; the annual tally will rise to 11 reviews by 2021, and 22 by 2024.

The office is responsible for investigating environmental-discrimination claims filed by communities of color under Title VI of the Civil Rights Act of 1964. It also processes discrimination complaints lodged by EPA employees.

Last month, a Center for Public Integrity investigation found that, since the mid-1990s, the EPA has dismissed 95 percent of all community claims alleging environmental discrimination without providing any remedy. In a series of stories entitled “Environmental Justice, Denied,” the Center examined how the EPA’s enforcement of Title VI has frustrated minority communities across the country. The series featured suggestions for how to fix the broken civil-rights office. One was to perform more proactive reviews.

The 19-page strategic plan centers on three overarching goals for the EPA’s civil-rights office: develop a “proactive compliance program,” ensure a “prompt, effective and efficient” complaint process and “strengthen” its own staff. Each aims to support Civil Rights Director Velveta Golightly-Howell’s vision for, in her words, “a model civil rights program worthy of replication.”

“We are steadily moving towards that goal, and much positive change has already occurred,” Golightly-Howell said in a statement introducing the plan. “While recognizing that there is still work to do, we are proud of our accomplishments.”

Under its plan, the office will provide policy guidelines for recipient agencies, including “examples of promising practices” to avoid environmental discrimination — something that experts, advocates and auditors have all suggested. In the draft, the office said it will “periodically” issue informal guidance and policy memoranda intended to help minority communities, as well as local and state agencies.

The plan does not mention one of the most fundamental and controversial policy debates for the EPA — the legal standards for determining environmental racism. Advocates and recipient agencies alike have called for the EPA to develop such standards for years.

The plan sets timelines for some initiatives that the office has already announced — the 2016 launch of a civil-rights annual report, for instance. It also addresses longstanding criticisms of the office as dysfunctional, committing to annual surveys of civil-rights staff, as well as specialized training.

One new effort is an upcoming “notice of proposed rulemaking” for civil-rights claims. The EPA is considering bringing its Title VI regulations in line with those of other federal agencies, it said, and giving the civil-rights office more “discretion” to handle complaints. Under existing regulations, the office has a 20-day deadline to decide whether or not to investigate Title VI complaints; if so, it has another 180 days to issue preliminary findings.

In its draft, however, the agency said that investigating Title VI complaints under these “self-imposed, inflexible deadlines is impracticable.” It cites what it calls “the scientific complexity” associated with environmental-discrimination claims, as well as “the number of discrimination allegations and theories.”

In a statement to the Center, the EPA said the notice of proposed rulemaking would do away with the 20-day and 180-day deadlines and instead require that complaints be processed “promptly.” The agency also would be given the ability to “request and receive compliance information from [funding] recipients on a regular basis.”

The EPA’s civil-rights office has long been criticized for failing to meet its own deadlines. The Center found that the office took nearly a year, on average, simply to determine whether to accept a complaint.

Five community groups sued the EPA in July, seeking to force the agency to finish investigating civil-rights claims that have been pending for at least a decade — some as far back as 1994.

Lawyer Marianne Engelman Lado, of Earthjustice, which represents the groups in the litigation, considers the notice “a red flag.” While the draft plan offers little detail, she said, “The only thing that seems clear is that [agency officials] want to roll back the statutory deadline … the EPA seems to want to take away the only handle we have to make them accountable in these cases.”

Brooklyn Law School professor Gregg Macey, who specializes in environmental law, said the notice’s emphasis on “EPA’s enforcement discretion” also raises concerns, especially since the strategic plan stresses use of “alternative dispute resolution” and other ways to settle Title VI complaints. Historically, he said, the civil-rights office has used such voluntary agreements to force improvements in community outreach or non-English language translations, among other things.

“It’s hard to locate in these agreements any improvement of environmental conditions on the ground,” Macey said.

The EPA’s strategic plan will be open for public comment through October 13.