February 02, 2022

Title VI Civil Rights Act Complaint

The Biden administration has made Environmental Justice a key component of its overall environmental agenda. EPA highlights EJ and civil rights in its draft strategic plan noting it will place a focus on “justice, equity, and civil rights” in order to deliver “measurable” benefits for "overburdened communities.” The strategic plan further notes that “[a]cheving this goal will require significant transformations in how EPA understands and implements its work, including how EPA prioritizes program resources, allocates funding, [and] implements statutory authorities …” Title VI of the Civil Rights Act of 1946 requires that “any program or activity” receiving federal financial assistance ensures that no person is excluded from participation in or the benefits of that program based upon race, color or national origin. Title VI can be a transformational tool in achieving the administration’s goals, and there are two pending complaints before EPA that will signal if EPA will use Title VI expansively.

With the backdrop of longstanding concerns of excessive emission of hazardous air pollutants, on January 20, 2022, the Concerned Citizens of St. John and the Sierra Club (“Plaintiffs”) filed a Title VI Civil Rights Act complaint with the U.S. Environmental Protection Agency and the U.S. Department of Justice against the Louisiana Department of Environmental Quality (LDEQ) and the Louisiana Department of Health (LDH). The complaint alleges, among other things, that LDEQ’s failure to act on expired Clean Air Act permits has had a disproportionate impact on residents of St. John the Baptist Parish, Louisiana. The complaint further alleges LDH has failed to take any action to protect children in a St. John elementary school even, “[i]n the face of alarming EPA data on the cancer risk in St. John the Baptist Parish, LDH has not protected public health …”

Any person can file a Title VI complaint with EPA; once a complaint is filed, EPA has 20 days to review it and either accept, reject or refer it to another federal agency. State agencies like LDEQ and LDH are subject to Title VI because they receive federal funding to carry out their EPA-approved programs.

While the complaint is still undergoing review by EPA and DOJ, the Biden administration’s strong emphasis on environmental justice is a good indication that this complaint will be investigated with the goal of LDEQ and LDH entering a consent decree to address the plaintiffs’ concerns. Among the relief requested is for LDEQ to act on expired air permits at a Denka neoprene production facility and take additional measures to evaluate and reduce hazardous air pollutant emissions from the facility to better protect the residents of the community. This includes the formation of an LDEQ and LDH environmental emergency contingency plan that would, “…conduct a full assessment of disparate impacts from the facility including: fence line monitoring, [and] a cooperative community needs assessment.” Finally, the Plaintiffs request medical monitoring, among other interventions, at a local elementary school.

The relief requested by the Plaintiffs in Louisiana are like those made in another complaint currently being investigated by EPA. In a Title VI complaint filed by Great River Environmental Law Center in late 2020 against the Missouri Department of Natural Resources (MoDNR), the plaintiffs alleged that MoDNR, among other violations, failed in their duty to comply with Title VI by issuing an operating permit in a community and “…failing to analyze the potential for disproportionate and disparate environmental and human health effects on nearby minority and low-income communities.” The relief requested was a cumulative impact analysis for all sources in the community. The EPA has not yet issued a final finding although a broad preliminary finding found that MoDNR lacked several required components of a nondiscrimination program investigation.

Analysis

Although Title VI complaints are not made directly against a facility, the regulated community should understand that these complaints, if granted by EPA, can have profound impacts on their operations. As demonstrated by the complaints against the states of Louisiana and Missouri, plaintiffs in these cases often request that additional monitoring or evaluations be conducted by the facility, which then may serve as the basis for additional lawsuits or permit requirements or other challenges. Unlike Title VI complaints, successful lawsuits by environmental organizations directly against the facility could require payment of the plaintiffs’ attorneys’ fees.

This makes Title VI a potentially far-reaching tool directly impacting local and state regulators who are the recipients of federal dollars. How far-reaching a tool will depend upon EPA and DOJ. As noted above, EPA’s draft strategic plan calls for transformation of how EPA interprets its statutory authorities in this area. Whether that ultimately occurs will be demonstrated over the next few years as EPA and DOJ respond to Title VI complaints that request relief beyond the four corners of traditional environmental statutes like the Clean Water Act or Clean Air Act. The regulated community can protect themselves by, among other things, ensuring that they have up-to-date permits, conducting routine privileged audits to ensure compliance with all applicable requirements, and understanding and otherwise having a community engagement plan. This includes assessing through EPA’s EJ Screening Tools the socioeconomic profile of the surrounding neighborhood to determine the likelihood of being targeted in EPA’s ongoing Environmental Justice initiative, which we have covered in prior alerts.

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