Environmental Justice, Denied

Published — February 4, 2016

Civil Rights Commission to hold hearing on environmental justice

A 2015 Center investigation examined the EPA’s handling of discrimination complaints from minority communities


The U.S. Commission on Civil Rights plans to continue its probe Friday into the Obama administration’s work on environmental justice, including efforts to enforce civil rights law, the subject of a Center for Public Integrity investigation last year. An all-day hearing in Washington, D.C., will spotlight minority communities near landfills, ponds and pits where coal ash gets dumped, and also is expected to examine the Environmental Protection Agency’s record of handling discrimination complaints.

A byproduct of coal-fired electricity, coal ash contains harmful metals such as arsenic, chromium, lead, mercury and many others. One of the nation’s largest industrial waste streams, it has fouled water supplies and endangered public health across the country, spurring the EPA to regulate its disposal for the first time last year. Disadvantaged communities are often located near ash ponds, according to the EPA.

“Too often our nation’s communities of color bear the brunt of toxic substances generated by nearby plants and processes,” the commission’s Martin Castro said in a prepared statement. The bipartisan commission advises the president and Congress on civil-rights issues.

A Center investigation in August found that the EPA’s Office of Civil Rights has routinely failed to enforce Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by those receiving federal financial assistance. The office has dismissed nine out of every 10 community claims alleging environmental discrimination, the Center found, and has never once issued a formal finding of a Title VI violation.

EPA officials say they have begun the work of turning the office around. They have announced plans to do more frequent compliance reviews and publish an annual report to chart the office’s progress. In December, they issued a notice of proposed rulemaking removing certain deadlines, and put out a case manual for investigators examining civil-rights claims.

Esther Calhoun, who lives in Uniontown, Alabama, and whose Title VI complaint over a sprawling landfill that accepts coal ash was detailed by the Center, is scheduled to be among the first panelists at Friday’s hearing. “I’ll go to the commission and hope that [members] hear me because I speak for the people,” she said.

Those living near the Arrowhead Landfill must contend with pungent smells that seem to wash over their neighborhood, and nagging ailments that never seem to fade. Some no longer sit on their porches, grow gardens or let children play in their yards. Almost everyone claims to have suffered ill effects, from headaches to earaches and neuropathy.

“It feels like an endless situation, but we don’t have to live this way,” said Calhoun, who will testify about what she calls a lack of response from local, state and federal officials, including at the EPA.

The agency’s civil-rights office launched an investigation into the Uniontown complaint in 2013 but has yet to make a decision.

Addressing the commission last month, the EPA’s director of civil rights, Velveta Golightly Howell, outlined recent steps her office has taken to improve its Title VI program. “There is still much more work for us to do to create the program that we both want and the public deserves,” she said in prepared remarks.

Asked about the Center’s investigation, Golightly Howell said the office has made “preliminary” findings of Title VI violations before. One case involving pesticide spraying near California schools attended by mostly Latino students was detailed by the Center.

Other panelists at Friday’s hearing are to include community advocates; industry representatives; and experts on civil rights and coal ash.

“The commission is a voice of moral authority for civil rights in this country,” said Marianne Engelman Lado, of the environmental law firm Earthjustice, who is handling the Uniontown complaint.

Also a panelist, Engelman Lado intends to remind the commission about the last time it examined the EPA and Title VI, in 2003. At the time, the agency was embroiled in controversy over policy guidelines, such as its legal standard for determining environmental discrimination.

While the EPA has stepped toward reform recently, she said, “We haven’t seen meaningful change since that 2003 report.”

Last month, the agency’s civil-rights office held five public meetings on a proposed rule meant to improve the way it responds to Title VI complaints. Billed as a “wholesale attempt” to reform the office, the proposal would remove several statutory deadlines that require the agency to decide within 20 days whether to accept a complaint for investigation and allow it another 180 days to complete an inquiry.

Golightly Howell has called the proposed rule a “necessary step,” but critics say the change would actually weaken protections for complainants. The Center found that the office took nearly a year, on average, just 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.

“The idea that the EPA is seeking more discretion, not less, is very problematic,” said Engelman Lado, who represents the groups in the lawsuit. “EPA is not even using authority it has today.”

The civil-rights commission, for its part, may hold additional briefings as part of its annual enforcement report. One of those briefings may be in Uniontown.

“They need to see what we see here,” Calhoun said. “Maybe they’ll see why we feel like we’re being left out.”

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