Putting the Civil Rights Act to Work for Environmental Justice

This guest post is by Chris Winter, Co-Executive Director & Staff Attorney of the Crag Law Center in Portland, Oregon.  Chris and I went to law school together, and despite his Pittsburgh roots, he moved out west after graduation.  After several years in private practice with Stoel Rives LLP, Chris founded the Crag Law Center to provide affordable legal assistance to groups working on environmental and natural resource issues.  Chris had a huge victory this week in a precedent setting environmental justice case under the Civil Rights Act.  The case received national coverage (see this article from the New York Times) and will put legal and political pressure on the Obama Administration’s EPA to finally enforce the law to protect poor and minority communities from pollution and other environmental harms.

The Crag Law Center, in partnership with our client the Rosemere Neighborhood Association, recently won an important environmental justice case involving the Civil Rights Act of 1964.  Disadvantaged communities all across America have struggled with environmental problems for decades.  Pollution is often concentrated in poor communities and communities of color.  As far back as 1987, the Commission for Racial Justice, in Toxic Waste and Race, found that race was the single best predictor of where toxic waste facilities were located nation-wide.  Since that time, the Environmental Justice movement has emerged and matured in an effort to address environmental inequities. 

The Civil Rights Act is one of the few laws that relates directly to discriminatory environmental impacts.  Title VI provides that no person shall, “on the ground of race, color, or national origin . . . be subjected to discrimination under any program or activity receiving Federal assistance.”  Each federal agency that distributes federal funds must pass regulations to implement the anti-discrimination provisions of the Civil Rights Act.

EPA’s rules prohibit the use of federal funds in ways “which have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin.”  Any citizen subjected to discrimination can file a complaint with EPA’s Office of Civil Rights, which is supposed to investigate the allegations and potentially pull federal funding. 

For years, the Environmental Justice movement hoped that EPA would faithfully enforce the Civil Rights Act.  State agencies, for instance, use EPA funding to issue hazardous waste and air pollution permits for industrial facilities that are often located in minority communities.  EPA, by enforcing the Civil Rights Act, had the opportunity to ensure that our bedrock environmental laws provide equal treatment for all people.

EPA, however, let that laudable vision slip through its fingers, and the story of Rosemere, as told by the Ninth Circuit, documents the unfortunate history of missed opportunities.  Instead of investigating civil rights complaints, OCR simply ignored them.  Dozens and perhaps hundreds of complaints from all over the country languished at OCR without any substantive response.  Citizens that looked to EPA for protection found instead an agency that turned a deaf ear to their concerns and refused to enforce the law.

Rosemere’s story exemplifies the systemic problems at the Office of Civil Rights.  For years the Rosemere Neighborhood Association (RNA) worked to address pollution in the City of Vancouver, Washington.  In 2003, RNA filed a complaint with EPA alleging that Vancouver used funding to improve services such as sewer and stormwater controls in affluent neighborhoods while neglecting minority communities.  Vancouver then took the unprecedented step of investigating RNA’s internal operations, which was at the time an officially recognized neighborhood association.  Vancouver eventually revoked Rosemere’s status, changed the name of the neighborhood, and recognized a new organization as the neighborhood representative. 

In December of 2003, Rosemere filed a second Title VI complaint alleging illegal retaliation by the City.  The EPA’s Office of Civil Rights (OCR) first accepts or rejects the complaint for investigation, which is supposed to happen within the first 20 days.  Eighteen months went by without any word from OCR, and meanwhile Rosemere had been shut out of City-sponsored programs.  Rosemere, with Crag’s assistance, filed suit in June of 2005 seeking to force OCR to conduct a proper civil rights investigation.  EPA then began the investigation and moved to dismiss Rosemere’s case as moot.  The District Court granted the motion, and Rosemere focused on ensuring that EPA carried out a fair and complete investigation.

OCR then had six months by law to finish its work.  By February of 2007, eighteen months after accepting the complaint, OCR still had not completed its investigation.  Rosemere again filed suit in an effort to get a fair resolution of its complaint.  OCR again responded only after litigation was filed and issued its investigative report several weeks later.  EPA again moved to dismiss the lawsuit simply because it had finally issued a decision approximately three and half years after the original complaint was filed.  The District Court granted the motion to dismiss, and this time Crag and Rosemere appealed the decision to the Ninth Circuit.

In a strongly worded opinion, the Ninth Circuit reversed the District Court and held that the Rosemere’s lawsuit was not moot.  We provided information to the court demonstrating that OCR had missed its timelines with respect to every single civil rights complaint filed in 2006 and 2007 and that the problems of delay had plagued EPA’s civil rights program since at least the late 1990s.  The Court found Rosemere’s story was part of a “consistent pattern of delay by the EPA.”  Writing for a unanimous panel, Judge Tashima wrote that “Rosemere’s experience before the EPA appears, sadly and unfortunately, typical of those who appeal to OCR to remedy civil rights violations.”  (The full opinion is available online here.)

Crag and Rosemere now look forward to prosecuting this case before the District Court and holding EPA accountable for the years of illegal delay.  More importantly, however, we hope Lisa Jackson, President Obama’s Administrator of the EPA, will take real steps towards reforming EPA’s Office of Civil Rights and realizing the promise of the Civil Rights Act.

Update: In response to Crag’s recent environmental justice victory, EPA Administrator Lisa Jackson has ordered reforms at the Office of Civil Rights to speed the processing of discrimination claims. In addition to ordering her staff “in the strongest terms, to review and reform the Title VI process,” Administrator Jackson also stated that she will create a new senior-level position to oversee and coordinate all diversity issues at the agency.

Inside EPA published a recent story on the latest developments (link here). Crag applauds the move by Administrator Jackson to both recognize the long-standing problems at EPA’s Office of Civil Rights and order immediate reforms. The next step in the process is to ensure that each complaint is given an objective and thorough investigation.