A new salvo in the fight for the “Holy Grail” of environmental justice

In 1979, a woman named Margaret Bean decided to challenge the Texas state government's decision to grant a permit for a new landfill in her neighborhood on the outskirts of Houston. The neighborhood was 70 percent non-white, and Bean and her fellow residents claimed the permit established a pattern of landfills in the city's minority communities, violating their rights under the Constitution's equal protection principle.

It was the first major environmental case to be tried in federal court, and it did not go in Bean's favor. The same was true of subsequent similar cases in Macon County, Georgia, or Richmond, Virginia.

In all of these cases, plaintiffs' lawyers struggled to prove that regulators' approval decisions were discriminatory, limited by a Supreme Court ruling several years earlier that required proof of discriminatory intent to establish a violation of constitutional protections against racial discrimination.

Faced with constitutional restrictions on pollution in their area, environmental lawyers began trying a different approach in the late 1990s.

While the Equal Protection Clause requires proof of discriminatory intent, the Environmental Protection Agency’s regulations under Title VI of the Civil Rights Act of 1964 state that an agency decision can be considered discriminatory if Effect it has on a particular group. This “Disparate Impacts Clause” quickly became the holy grail of the environmental justice movement.

But communities and lawyers soon recognized a problem with this approach. Instead of investigating complaints about civil rights violations, the EPA left them unsolved. It was as if the agency had issued Title VI regulations but was not interested in actually enforcing them – a situation that lasted for decades.

To force the agency to change this negligent practice, citizen groups across the country sued the EPA in 2015. A federal judge ruled in their favor in 2020, and the agency finally began investigating the Title VI complaints that landed on its desk, opening investigations in Cancer Alley, Louisiana, and Chicago, Illinois.

Shortly after the EPA began investigating civil rights issues, it faced fierce opposition from conservative state governments accustomed to complete control of the permitting processes in their jurisdictions. In the midst of negotiations to settle two Title VI complaints in “Cancer Alley,” then-Attorney General and current Louisiana Governor Jeff Landry sued the EPA and the Justice Department in the spring of 2023, arguing that federal regulators had exceeded their authority.

About a year later, a group of 23 Republican attorneys general sent a petition to the EPA demanding that the agency suspend its use of Title VI to regulate pollution. They said the EPA's attempts to advance environmental justice amounted to “racial gerrymandering” and represented an overreach of its authority. (The agency has still not responded to the letter; it can either reject it outright or accept it and begin proceedings to change its own regulations.) Last month, a federal judge ruled in Landry's favor, effectively banning the EPA from enforcing Title VI in Louisiana.

In light of these repeated attacks on the EPA's Title VI regulations, citizens and stakeholders submitted a counter letter to the EPA earlier this month. “At a time when we should be celebrating the 60th anniversary of the Civil Rights Act of 1964, we instead face a new wave of threats to its core goal of equal protection for all people,” the letter began. The 37-page document includes a series of case studies from across the country – some showing that the EPA successfully used Title VI to combat unjust industrial expansion, others showing that the agency's failure to enforce its own civil rights regulations amounted to a “missed opportunity” to improve people's lives.

One example describes the fight against a scrap metal shredder that was relocated from an affluent white neighborhood to a majority Black and Latino neighborhood in Chicago. After residents formed a task force and filed a Title VI complaint against the Illinois EPA in 2020, the city itself denied the company a license to operate, and the state agreed to revise its industrial permitting process to take into account vulnerable communities that already struggle with numerous sources of pollution. In another case, residents and activists used a Title VI argument to fight against a 49-mile crude oil pipeline that would run through predominantly Black neighborhoods in Memphis, Tennessee. Shortly after they filed their complaint in 2021, the pipeline company announced it was pulling the plug on its project.

Despite these successes, the signers wrote, the EPA has caved to pressure from some conservative state governments and failed in several Title VI cases. In 2022, for example, citizen groups in Houston, Texas, filed two separate civil rights complaints about the disproportionate permitting of concrete plants in their neighborhoods. The EPA accepted the complaints and launched investigations, but in October 2023, the Texas Commission on Environmental Quality (TCEQ) withdrew from negotiations, questioning the EPA's authority to enforce its own Title VI regulations and citing Louisiana's pending litigation against the EPA. In response to the Texas commission's refusal to participate in the complaint process, the EPA could have issued a violation for noncompliance with federal regulations. “Instead,” the letter states, “the EPA allowed the TCEQ to unilaterally withdraw from negotiations and has not yet granted the community any relief under Title VI.”

It's not just communities and lawyers pushing back against the Republican attorneys general's petition. On Sept. 5, a group of Democratic attorneys general from 16 states, led by New York's Letitia James, sent their own letter to EPA Administrator Michael Regan, urging the agency to keep the Title VI review process alive. The document includes descriptions of how discriminatory zoning and redlining policies in the early 20th century caused neighborhoods of color to suffer long-term health damage from unchecked industrial expansion, and how the attorneys general's respective state governments sought to combat these legacies of racism that persist today.

“EPA's regulations prohibiting recipients of federal funds from engaging in policies and practices that have discriminatory effects are an important tool for eliminating these inequities and a critical complement to related efforts at the state and local levels,” they wrote.

In a phone conversation, Sheila Foster, a professor of environmental law at Columbia University and a signatory to the proponents' letter, told Grist that Title VI takes into account what traditional environmental law cannot. While state and federal regulators typically assess a community's pollution burden by examining facilities or chemicals in isolation, the Civil Rights Act considers the “synergistic effect” of all environmental hazards in a community.

While the Biden EPA has failed on a number of civil rights complaints, given the extensive regulatory rollbacks during Trump's presidency, it is clear that a Trump administration would only facilitate and accelerate the ongoing attack on Title VI, Foster said.

At the heart of all Title VI cases is the fact that “communities are not protected by environmental laws and environmental agencies because damage is measured and environmental standards are created only in a very narrow way.”