How to fix the EPA’s broken civil-rights office

Introduction

The Civil Rights Act of 1964 was described by President Lyndon B. Johnson, who signed it into law, as an “effort to bring justice and hope to all our people.”

It has brought neither to Americans who complain of environmental discrimination.

Communities that have turned to the U.S. Environmental Protection Agency’s Office of Civil Rights for help since the early 1990s have seen complaints filed under the law’s Title VI dismissed 95 percent of the time. Other cases have languished — sometimes for more than a decade — leaving residents without remedies and often rendering their complaints moot. The office’s track record is so weak that advocates have lost faith in the law as a way to achieve justice.

The Center for Public Integrity’s “Environmental Justice, Denied” series, published earlier this month, shows what happens to communities in the face of EPA inaction. A massive Alabama dump a stone’s throw from homes is expanding while the predominantly African-American residents wait for the EPA to respond to their complaint. California parents are challenging an EPA settlement with the state over pesticide use near schools with mostly Latino students, a deal the EPA touted as a success. Other stories brimming with citizen rage and frustration can be heard in New Mexico, New York and Ohio.

The EPA declined offers to comment on the series.

The hurdles the civil-rights office faces in creating an effective program — funding, staffing, institutional attitude — are not insurmountable, say advocates, former EPA employees and civil rights experts. Some reform recommendations, they say, will require the rethinking of agency priorities; others will require officials to stiffen their spines and find creative ways to uphold the spirit of the Civil Rights Act.

Here are some suggestions that could lead to a revived EPA civil-rights office:

Build consensus and a civil-rights culture

The EPA has struggled to answer two fundamental questions in any claim of environmental discrimination: What does such discrimination look like? And how will the EPA identify it on the ground?

Academics and advocates alike have tried to help the agency figure this out for decades. Over the years, former EPA employees say, the agency has set up one task force after another aimed at adjudicating environmental-discrimination complaints. They have drafted policy guidelines, issued program recommendations and evaluated cases, yet have been unable to come to agreement on these two questions.

“People just looked at these cases as ‘I don’t know what the hell it is,’ ” said Ann Goode, who headed the civil-rights office from 1998 to 2001.

Debate has raged over key legal definitions. Historically, for instance, the office has relied on environmental health standards to define what it calls “adversity,” interpreting compliance with such standards as evidence that a complaint target’s actions or decisions would not harm a minority community. Similarly, it has allowed a target to argue against a claim of discrimination if a facility complies with environmental laws — a defense known as the “rebuttable presumption.”

These definitions, observers say, amount to a narrow read of civil-rights law. Some advocates want the EPA to broaden its adversity standard to include social, aesthetic and economic harms — increased odors, decreased property values. Others suggest analyzing environmental damage on a cumulative basis, rather than facility by facility.

But revamping legal standards would first require consensus on those big-picture issues — and not just within the civil-rights office. Part of the problem stems from how the EPA does business: its regulations address broad, geographic regions; its permits ignore polluters’ aggregate effects. Yet it also stems partly from agency culture.

At the EPA, the civil-rights office is considered, in Goode’s words, “backwater operations.” It has had to fight for resources and respect. Vernice Miller-Travis, of the agency’s National Environmental Justice Advisory Council (NEJAC), notes that the office has “an unpopular mandate that is not really supported by the institution.”

The office “will fail if EPA continues to signal that Title VI is a distinct program, or in conflict with EPA’s regulatory function, or at odds with the work of other offices,” said Gregg Macey, of Brooklyn Law School, who specializes in environmental law and is among a dozen or so advocates and organizations pushing for reforms.

Many believe the EPA must foster an agency-wide culture of civil rights, beginning with Administrator Gina McCarthy. Agency leaders must decide and win staff agreement on how to define environmental discrimination and what the office can do with the agency’s blessing to combat it. “At the leadership level,” Goode said, “you have to have clear goals and objectives about what kind of office do you want.”

In 2011, EPA officials took a step in this direction by creating an intra-agency group composed of senior-level career employees. The idea was to leverage all EPA resources to better handle civil-rights cases and give senior managers a stake in enforcing Title VI. So far, the group has issued recommendations for a “model” civil-rights program, including establishing deputy civil rights officials in the EPA’s regional offices, and creating a case management process. The civil-rights office is implementing both.

What’s needed most, Miller-Travis said, is a clear message from top officials that the EPA’s enforcement of civil-rights law is just as important as its enforcement of environmental law.

“That should have been said in 1970,” Miller-Travis said. “And every administrator from [the first one, William] Ruckelshaus to Gina McCarthy should have been enforcing that and embedding that into the consciousness of the agency.”

Develop a proactive approach

A vigorous civil-rights program should do more than just wait for and respond to Title VI complaints. “It should be proactive as well,” said Marc Brenman, a retired civil-rights policy advisor who spent more than 30 years working on such cases at both the Transportation and Education departments.

One way is to provide clear and comprehensive policy guidance to state and local agencies receiving EPA funding. The civil-rights office twice issued draft guidelines on the Title VI complaint process — first in 1998 and again in 2000. While a portion of those guidelines became final in 2006, it did not address legal standards used in civil-rights cases or other substantive issues. In May, the agency put out a position paper outlining the roles complainants and targeted agencies play in the process; it’s developing a “toolkit” to help state and local agencies understand the law.

Environmental-justice advocates, civil-rights experts and former EPA employees say the agency needs to be more definitive. Clarifying language could come in the form of a “Dear Colleague” letter defining terms like “sacrifice zone”; a white paper explaining how the EPA analyzes cumulative impacts of polluters; or a memorandum interpreting the “preponderance of evidence” standard used in civil-rights claims.

Velveta Golightly-Howell, who heads the EPA’s civil-rights office, pointed out that the program in 2013 added a new grant condition for those getting EPA financial assistance. Now, local and state agencies must check a “few boxes” and vow to comply with Title VI, said Macey, the Brooklyn law professor. “This is only as effective as EPA’s efforts to explain what compliance means,” he said, “[and to] give guidance to regional offices on how to review a program for compliance.”

Other state and local activities that EPA officials could monitor as well: permitting actions; regulatory decisions; and policies on environmental justice. Do they tackle environmental racism? Are they implementing the Civil Rights Act? If not, experts say, the EPA should issue warning letters notifying local and state agencies that, unless they correct problems, it will levy fines or rescind federal funds.

Another measure offered up as a solution: Civil-rights officials could launch inquiries at their discretion rather than wait for formal complaints. One former EPA employee suggests the civil-rights office should use this authority to focus on less-challenging cases alleging Title VI violations. Already, the office has had some success investigating complaints charging a lack of meaningful public participation — a Spanish-speaking community effectively shut out of a facility’s permitting process, for instance. Among environmental-discrimination cases, these claims are not technically complex, the employee said. They are also less likely to lead to conflicts with other EPA programs.

Start with the non-controversial cases, in other words, and build confidence in the process. “It is the low-lying fruit,” the employee said, “but it’s giving EPA [investigators] some softballs so they can learn how to take a case to resolution.”

Lisa Garcia, a former senior advisor to the administrator for environmental justice at the EPA, offers a twist on this concept: Select one civil-rights case to serve as model for how to properly process an environmental-discrimination claim. “Set the example of how we should do it or how states could do a better job,” she said. “Go to the states and say, ‘Here’s how to stop getting caught up in this potential pattern of discriminatory practices.’ ”

Act boldly

The Civil Rights Act is a strong law, advocates and former employees say; the EPA just needs to be less timid in its enforcement of it.

“[They] do technically have the ability to go seek out cases, but the office’s docket is largely determined by what complaints were filed, when,” said a former EPA employee with knowledge of the agency’s civil-rights office. The office rarely takes the initiative, the former employee said, to investigate what many experts consider non-controversial civil-rights claims — those alleging a lack of meaningful public participation, for instance — let alone politically sensitive topics, such as coal ash disposal.

One way to tackle that might be to keep track of Title VI complaints more closely as they come into the office. Even if individual complaints are denied, agency investigators could take a closer look at an agency or facility targeted by multiple claims. That would also require more widespread use of tools such as the EPA’s own EJSCREEN — which allows the agency to see demographic and environmental data for an area at a glance — and data collected by outside researchers and residents.

At minimum, outsiders say, the EPA should be talking about such things.

“Just take the risk,” said Garcia, vice president of litigation for healthy communities at Earthjustice, a nonprofit environmental law firm. If the EPA noticed that most permits were being issued in predominantly minority communities, they should be able to “issue a decision that says ‘that, to us, is a disparity, and so come to the table, let’s talk about this.’ ”

Garcia wants the EPA to pursue alternatives to formal findings of discrimination — an approach more collaborative than punitive. But Title VI does come with a large hammer that the agency’s civil-rights office has yet to use — the power to strip federal funding. To force compliance with civil-rights law, the agency could withdraw funds and refuse to give future awards to those programs and activities that flout the law.

EPA officials must make it known that the agency’s enforcement of civil-rights law is not an empty threat, advocates say.

“Nobody is saying you would take that lightly,” said Miller-Travis, the NEJAC member and a veteran advocate for environmental-justice issues. “But if everybody knows you are never going to go there, then your civil rights program has absolutely no validity. None.”

Stabilize and bolster civil rights staff

Most agree that the EPA’s civil-rights office would benefit from an infusion of money, staff and specialized training. Given today’s political climate, which has brought deep cuts to the EPA’s annual budget (from $10.3 billion in 2010 to $8.1 billion in fiscal year 2015) as well as its staff (from 17,000 to 15,000 employees), that seems unlikely.

During fiscal year 2014, the civil-rights office had 37.6 full-time-equivalent employees — its lowest count in the past decade. Agency officials say the office expects to hire in the next fiscal year, beginning in October.

If that happens, it’s important to keep the number in context. Take, for example, the Education Department. It has a staff of 554 employees in its civil-rights office, but is asking for a budget increase to hire another 200 lawyers and investigators just to handle its caseload. Any new staffers in the EPA’s office will be charged with enforcing complaints of racial, sexual and disability discrimination filed by citizens, as well as complaints filed by agency employees. Some advocates suggest the EPA should reassign internal complaints to another office. At the least, they see as crucial a staff solely dedicated to adjudicating environmental-discrimination claims.

There are some promising signs.

Advocates and experts alike said the EPA helped stabilize and professionalize the civil-rights office in February 2014, when it hired the current director, Golightly-Howell. Prior to her arrival, the office had a revolving door of supervisors; it’s had four directors in the last three years alone. For much of this time, one or more of the office’s top three management posts has remained vacant. Constant leadership change and staff turnover have made it hard to push through reforms.

In an interview with the Center for Public Integrity and NBC News, Golightly-Howell said that over the next five years, she aims to make “significant strides towards … promptly, thoroughly and efficiently addressing each complaint [the civil-rights office] receives.” She promised to implement what she called a “well-established process for conducting compliance reviews,” and to reach out to those receiving EPA funding to educate them on their obligations under Title VI. She said her office will collaborate with other federal agencies’ civil-rights programs so it can better achieve its goals.

A final suggestion for Golightly-Howell from Brenman, the former civil-rights policy advisor: Draw up a wish list of resources and structural changes necessary for the civil-rights program to be effective and send it to administrator McCarthy.

“If the response she gets back is either silence or not getting the resources that she needs,” Brenman said, “then she’ll know that EPA, at its highest levels, is not taking these issues as seriously as they deserve.”