EPA discretion on settled civil rights case not subject to review, court rules

Introduction

May 14, 2016: This story has been corrected.

The U.S. Environmental Protection Agency has the discretion to decide the scope of a civil rights investigation and whether to broker a settlement, a U.S. Circuit Court of Appeals has ruled.

In a decision issued Wednesday, the appellate court sided with a lower court ruling that affirmed the EPA’s settlement of a 1999 complaint, filed under Title VI of the Civil Rights Act, alleging that Latino schoolchildren in California were being disproportionately impacted by pesticide-spraying. The children’s parents filed a lawsuit asking that the settlement be overturned because it took the EPA 12 years to resolve the case and the agency had failed to consider circumstances that had changed during that period.

The plaintiffs argued that the EPA’s pattern of delay in enforcing civil rights law amounted to an adbication of duty that warranted judicial action. In a decision that did not set a precedent, the appellate court said the EPA had acted in the California case, despite what it called a “lamentable” delay.

“This case centers not around the effects of EPA’s delay, but rather around EPA’s interpretation of its own enforcement duties under Title VI, a matter committed to its discretion by law,” the court said. It continued: “While the EPA’s delay is lamentable, plaintiffs can no longer claim a judicially redressable harm resulting from it.”

The EPA referred requests for comment to the Department of Justice. A spokesman said the department had no comment.

Brent Newell, legal director for the Center on Race, Poverty and the Environment, one of three groups that filed the complaint, said he “respectfully disagrees” with the court’s decision and worries what it might mean going forward. The Center for Public Integrity reported last year that the EPA’s Office of Civil Rights almost never issued a finding on behalf of complainants in environmental discrimination cases.

“This outcome, if it stands, raises the importance of EPA reform even higher because the enforcement of the Civil Rights Act shouldn’t be at an agency’s total discretion,” Newell said. “EPA has shown through its history that it abuses that discretion.”

The original complaint against the California Department of Pesticide Regulation sat dormant for more than a decade. Environmental advocates decried the settlement reached in 2011, saying it offered inadequate protections for the children. CRPE issued a report last month that examined EPA emails and memos generated during the investigation. The report concluded that the communications showed the “institutional barriers” that kept the agency from enforcing civil-rights law.

EPA regulations give the agency five days to acknowledge receipt of a civil rights complaint and 20 days to decide if it will do an investigation. The investigation itself should take no more than 180 days, barring special circumstances. In its ruling Wednesday, the appellate court said those regulations are “at most, a set of procedural guidelines,” and not subject to judicial review. Implicit in the EPA’s discretion to decide whether and when to accept cases, the court said, is the “lesser power to determine the scope of the investigation in the event the complaint is accepted.”

In December, the agency issued a notice of proposed rulemaking that would eliminate the deadlines in order to give the agency more flexibility with complaints.

Correction, May 14, 2016, 3:00 p.m.: An earlier version of this story mischaracterized the scope of the appellate court’s ruling.