The EPA and Title VI enforcement

Environmental Compliance News

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EPA Equity Action Plan

The EPA’s E.O. 13985 Equity Action Plan, dated April 2022, contains six priority action items. Priority action #4 is to “Strengthen EPA’s external civil rights compliance program and ensure that civil rights compliance is an agency-wide responsibility.”

In that publication, the Agency listed the following as barriers to achieving this action item:

“EPA has not fully used its civil rights implementation and enforcement authority to vigorously enforce federal civil rights laws. Federal law authorizes EPA and federal agencies generally to enact rules, regulations or orders to achieve the laws’ objectives. Specifically, EPA’s nondiscrimination regulation prohibits recipients of EPA financial assistance from taking actions in their programs or activities that are intentionally discriminatory and/or have a discriminatory effect. Robust enforcement of civil rights law provides the strongest tool to address disparities on the basis of race, color, national origin (including limited English proficiency (LEP)) and disability.”
“EPA’s External Civil Rights Compliance Office (ECRCO) has been consistently underfunded across administrations. As a result, ECRCO has relied primarily on a reactive rather than proactive approach to civil rights enforcement. ECRCO also is not fully and meaningfully engaging with internal (all EPA program and regional offices) and external (states, overburdened communities, and advocates) stakeholders. Moreover, EPA has not integrated civil rights compliance throughout its programs and activities and has not elevated it as a strategic goal. Over time, the U.S. Commission on Civil Rights and National Environmental Justice Advisory Council (NEJAC) have repeatedly voiced concerns about EPA’s external civil rights program and made several recommendations for how to improve outcomes.”
The classifications protected by federal civil rights laws encompass many of the underserved and overburdened communities that have been exposed to a disproportionate level of harmful environmental, quality-of-life, and health impacts from pollution sources. An effective civil rights compliance program creates accountability to ensure the actions, policies, and practices of recipients of federal funds advance equity rather than exacerbate these disparities.

Because much of the EPA’s regulatory and compliance actions are challenged legally, it’s surprising the EPA didn’t list litigation hurdles as a potential barrier to achieving its goal to strengthen its external civil rights compliance program.

Background

The civil rights movement of the 1960s launched an awareness of the need for environmental justice (EJ), as more people became aware of how many minority communities were located near industrial facilities.

“In response, President Clinton signed the landmark Executive Order (EO) No. 12898 and instructed federal agencies to identify and address the disproportionately high and adverse human health and environmental effects of their actions on minority and low-income populations,” a Troutman Pepper Environmental Law and Policy Monitor blog post says. “Among the legal tools federal agencies could employ to combat environmental injustice was Title VI of the Civil Rights Act. However, in practice it has been difficult to use Title VI to address environmental injustice because of the need to prove purposeful acts of discrimination. Additionally, in 2001, the Supreme Court’s decision in Alexander v. Sandoval found that there was no private cause of action to enforce disparate-impact regulations under Title VI.”

The Biden administration has taken action to revise the methods used to apply Title VI to EJ.

On September 23, 2023, “as part of President Biden’s National Strategy to Counter Antisemitism, eight federal agencies clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities,” notes a White House Fact Sheet. “These wide-ranging protections provide important tools to curb discrimination based on shared ancestry or ethnic characteristics and to better protect the civil rights of all Americans.”

For the EPA, this translates into a policy that prohibits EPA-funded agencies from taking actions, including permitting actions, that are intentionally discriminatory or have a discriminatory effect based on race, color, or national origin.

Title VI discrimination complaints are to be filed with the federal agency that provided the financial assistance, and the complaints are investigated by the EPA's Office of External Civil Rights Compliance (OECRC).

Two recent Louisiana court cases focusing on EJ issues demonstrate that federal regulators don’t have carte blanche when it comes to addressing these issues. These cases underscore the difficulty in proving purposeful discrimination.

Louisiana v. EPA

In a 56-page letter dated October 12, 2022, the EPA Office of Environmental Justice and External Civil Rights sent a notice to the Louisiana Departments of Environmental Quality (LDEQ) and Health (LDH) stating that, due to alleged “actions or inactions,” the EPA would be investigating claims of environmental racism on behalf of “Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.”

The letter said the Agency’s initial investigation presented “significant evidence suggesting that the Departments’ actions or inactions have resulted and continue to result in disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.”

Specifically, the Title VI complaints against the LDEQ alleged the local agency’s air permitting of Denka chemical and Formosa plastics plants was discriminatory.

In response, the state of Louisiana filed a legal complaint against the EPA and the Department of Justice (DOJ).

“In its challenge, Louisiana alleges that EPA’s and DOJ’s Title VI disparate-impact regulations exceed statutory authority and are illegal. Disparate-impact regulations implement Title VI and prohibit discrimination by recipients of federal financial assistance,” the Troutman Pepper Blog adds. “Louisiana also focuses on EPA’s attempts to require Louisiana state agencies to take actions outside the scope of express regulatory requirements, including requirements not imposed by any regulations, such as to conduct a cumulative impact analysis during air permitting, prepare NEPA-like pre-decisional analyses of the potential for disparate impacts, and hold public meetings in a particular manner. Louisiana claims that these extra-regulatory demands by EPA are illegal.”

In June 2023, Louisiana moved for a preliminary injunction to prevent the EPA and the DOJ, during the pendency of the lawsuit, from enforcing the disparate impact regulations and requiring compliance with extra-regulatory requirements by any Louisiana agency. Shortly after that filing, the EPA announced it had resolved both Title VI complaints and closed its investigations. The EPA didn’t make a finding of discrimination by the LDEQ or the LDH.

On January 23, 2024, in the U.S. District Court for the Western District of Louisiana, Judge James Cain’s ruling in Louisiana v. EPA dealt another blow to the Biden administration’s action plan to deliver EJ to minority communities when he issued a preliminary injunction barring the EPA and the DOJ from:

“Imposing or enforcing any disparate impact-based requirements against the State of Louisiana or any State agency under Title VI, and
Imposing or enforcing any Title VI based requirements upon the State of Louisiana or any State agency under Title VI, that are not both:

Ratified by the President, as required by 42 U.S.C. § 2000d-1, and
Based upon requirements found within the four corners of EPA’s disparate impact regulations, 40 C. F. R. § 7.35(b),(c).”

According to the court’s Memorandum Ruling, Louisiana contended the EPA has no authority to impose these disparate impact-based mandates under Title VI because Title VI has no such disparate impact language. The court concluded that the main questions here are whether Title VI disparate impact regulations are lawful and whether the executive’s limited authority under Section 602 of Title VI extends to imposing disparate impact-based liability.

The ruling recognized Louisiana’s standing to challenge the disparate impact regulations and cumulative impact requirements. The court also found Louisiana’s claims weren’t moot because the “the evidence makes clear that the EPA intends to promote and enforce its disparate impact and cumulative impact conditions with regard to grants and permits … [and] it is absolutely clear to this Court that the alleged wrongful behavior could reasonably be expected to recur in the not-to-distant future and/or is already occurring in this State as well as across this nation.”

“The court concluded that EPA and DOJ Title VI disparate-impact regulations are likely unlawful since they have not been explicitly authorized by the Civil Rights Act,” Troutman Pepper adds. “The court also invoked the major questions doctrine, which requires explicit congressional authorization to regulate questions of major significance. Finally, the court concluded that these requirements likely violate the U.S. Constitution and are made without any authority or any colorable basis for authority (ultra vires).”

With this finding, the court made clear that the current administration’s efforts to use Title VI to advance EJ are unlikely to pass judicial scrutiny. Also, by evoking the major questions doctrine, it was a clear warning to the EPA and the DOJ that the pursuit of enforcing Title VI disparate impact regulations and the imposition of extra-regulatory requirements will likely end up before a fickle 5th Circuit Court backed by the current conservative majority-led U.S. Supreme Court (SCOTUS).

Many analysts believe the EPA will appeal the ruling to the 5th Circuit, followed by a SCOTUS hearing. However, it may not be the smartest move because if the appeals court affirms the lower court ruling, it could signal the end of the road for any disparate impact applications.

“The court’s decision to issue this injunction is bad enough, but what’s worse is that instead of fixing the discriminatory permitting programs that have created sacrifice zones like Cancer Alley, Louisiana is fighting tooth and nail to keep them in place,” said Sam Sankar, Earthjustice’s senior vice president of programs, in an Earthjustice press release. “The public health crisis in St. John the Baptist Parish shows us why we need Title VI: EPA needs to be able to use our civil rights laws to stop states from running permitting programs that perpetuate environmental injustice.”

Implications

The EPA and the DOJ are temporarily barred from enforcing Title VI to require disparate impact and cumulative impact analysis in actions by Louisiana and its state agencies.

However, “the injunction does not affect the consideration of disparate impacts and cumulative impacts in the context of [EJ] under NEPA in federal permitting. It also does not disturb a recent Louisiana appellate court’s finding that the consideration of [EJ] is required in state permitting pursuant to the Louisiana Constitution. Accordingly, permit applicants should remain vigilant in ensuring that a robust EJ analysis is undertaken and well documented in the permitting record,” advises Liskow and Lewis’s The Energy Law Blog.

Although Cain’s decision isn’t binding upon other courts, it certainly could be used as precedent in other Title VI cases.

RISE St. James v. LDEQ

Rise St. James is a faith-based grassroots organization fighting for EJ. The group is dedicated to defeating “the proliferation of petrochemical industries in St. James Parish, Louisiana.”

Rise and other plaintiffs filed a petition for judicial review of the LDEQ’s approval of Formosa’s air permit approval, claiming the permit issuance “was in violation of various environmental standards and the public trust doctrine and failed to consider the disproportionate impact on nearby minority communities,” says a JD Supra article by ArentFox Schiff. “RISE St. James v. LDEQ, decided in January 2024, was an appeal by LDEQ and an intervenor, FG LA LLC (‘Formosa’), against a lower court's judgment that had reversed LDEQ's decision issuance of 15 permits to Formosa for a proposed chemical complex in St. James Parish, Louisiana, and vacated those permits.

“The Court of Appeals rejected these arguments, reversed the lower court’s judgment, and reinstated the permits.”

Industry takeaways

Key takeaways from both decisions, according to the ArentFox article, include:

Organizations like Rise will continue to file Title VI discrimination claims and pursue EJ litigation.
EJ concerns alone aren’t enough to deny permits.
The Rise case emphasizes the need to consider and address EJ concerns early in the permitting process by engaging with surrounding communities and relevant agencies. This type of proactive engagement can be effective at preventing permitting delays.
Federal agencies are authorized to investigate EJ civil rights concerns; this authority isn’t diminished by findings in either case.
The Louisiana case was initiated after federal regulators began civil rights investigations into the actions of Louisiana state agencies. Those investigations concentrated on cumulative impacts in permitting decisions, which resulted in the court finding the EPA doesn’t have the authority to “require cumulative impact assessments absent statutory authority.”
The ruling in Louisiana v. EPA notes that simply citing EJ concerns doesn’t give federal regulators the right to require permit applicants to address all possible issues.
Considering the outcome of the Louisiana case, other states will almost certainly pursue litigation against the EPA if they become the target of an OECRC Title VI discrimination investigation.

These legal failures represent another setback for the Biden administration’s EJ goals. At this time, it’s anyone’s guess as to how the administration will regroup and respond as it continues to work to meet its goals to advance EJ across the nation.

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