Why the EPA fails to enforce the Civil Rights Act

Sometimes, in the 1990s, Maria Garcia’s children would return home from school in Oxnard, California, complaining of headaches. Garcia began to wonder if the headaches were triggered by the large amount of pesticides sprayed on the strawberry fields next to the high school her six children attended. She knew that pesticide exposure was normal in farming communities like hers, but she worried that the dosages were unsafe.

So, in 1999, Garcia joined a complaint filed by six other parents with the U.S. Environmental Protection Agency against the California Department of Pesticide Regulation for re-licensing methyl bromide, a fumigant linked to lung and kidney damage as well as neurological effects. The complaint, known as Angelita C., alleged that pesticides were used more heavily around schools with high Latino populations – a potentially discriminatory practice under civil rights law.

In 2011, after a decade-long investigation, the EPA made its first-ever preliminary finding of environmental discrimination and negotiated a settlement: In exchange for admitting no wrongdoing, the California Department of Pesticide Regulation agreed to put an additional air monitor near the school. For Garcia, the agreement was out of touch and out of date: In the 12 years it had taken the EPA to resolve the case, methyl bromide had been replaced by methyl iodide, a new pesticide linked to other health problems, that the settlement didn’t address. Garcia and two of her children sued the EPA in 2013, alleging it mishandled the civil rights investigation and calling for the settlement to be invalidated and for the EPA to complete a new inquiry into the case.

On May 11, an appeals court sided with the original court ruling and affirmed the EPA’s 2011 settlement, despite what it called a "lamentable" delay. Last year, the EPA tried to make amends for past missteps by launching a new initiative focused on bringing environmental justice to “overburdened communities.” But critics say that structural problems and entrenched politics within the agency make them skeptical that it will make any difference.

The EPA’s new plan, “EJ 2020,” outlines how the agency will make “a visible difference in environmentally overburdened, underserved, and economically distressed communities.” Those efforts include a new mapping tool, which allows regulators to see which communities are excessively burdened by pollution, and commitments to “integrate environmental justice into enforcement, rule-making, and permitting efforts” and “increase collaboration with communities and states.”

The plan does very little, however, to strengthen the one tool that advocates say would be most effective at actually addressing environmental racism: Title VI of the 1964 Civil Rights Act. The provision gives the EPA the authority to ensure agencies that get EPA funding — like the California Department of Pesticide Regulation — don’t act in a discriminatory manner. But according to an investigation by the Center for Public Integrity, the EPA’s Office of Civil Rights has dismissed nine out of every 10 claims alleging environmental discrimination. And in its 23-year history of processing such claims, the office has never once issued a formal finding of a Title VI violation.

“The EPA created a separation between environmental justice and civil rights enforcement,” says Brent Newell, the legal director for the Center for Race Poverty and the Environment (CRPE), a California-based advocacy firm that helped represent Garcia and others. He noted that EJ 2020 contains no concrete details on how the agency will reform its civil rights enforcement.

Newell blamed the omission on institutional politics, which came to light in a CRPE report released last month that examined EPA emails and memos generated during the Angelita C. investigation. Combing through 29,000 documents, Newell and the CRPE team revealed that the EPA’s Office for Pesticide Programs blocked the agency’s Office for Civil Rights from getting more stringent protection for Latino children from ongoing pesticide exposure. The documents, says Newell, suggest that within the EPA, civil rights law has been relegated to “non-existence.”

All government agencies must perform their responsibilities while ensuring those duties do not violate the Civil Rights Act, but according to advocates, the EPA has created the “perception of conflict” between those two missions: On the one hand, it regulates pollutants and sets safety standards. On the other, it’s supposed to investigate instances where regulations didn’t protect vulnerable communities. So when one arm of the agency, such as the Office for Pesticide Programs, approves a certain chemical for use, agency politics make it difficult for the Office for Civil Rights to rule that its own rules are permitting the very pesticide found to unduly impact a particular racial group. 

“That’s why our clients in Oxnard were denied justice," says Newell. “The way the EPA enforces environmental law essentially trumps civil rights enforcement.”

Those types of politics result in the kind of contradictions present in the Angelita C. settlement. By the time the EPA settled, an international treaty – the 1989 Montreal Protocol – had already banned the use of methyl bromide, drastically curtailing its use. In its place, growers used other highly toxic pesticides approved by the EPA’s Office for Pesticide Programs. According to the internal communications examined by the CRPE, the EPA knew this but they kept the investigation into Garcia’s complaint focused on the now-defunct methyl bromide.

Documents obtained by the CRPE also reveal how the Office of Pesticide Programs objected to mitigation measures suggested by the Office of Civil Rights, such as impermeable films or buffer zones, since those would call into question the long-term exposure threshold established under its own regulations.

The EPA acknowledges past issues in the Office of Civil Rights and has been working to improve the program. In December, Acting Deputy Stan Meiburg addressed some of the steps the agency was taking to strengthen the complaint process in a blog post. Where possible, however, EJ 2020 states that the agency will try to address the concerns of the affected communities outside of the civil rights enforcement process.

In an email response, the EPA explained the rationale: “There are many environmental justice issues that may not be addressed through Title VI" and noted that the civil rights complaint process is just one of the many tools available to address environmental justice issues.

For advocates, however, the EPA’s proposed rule to eliminate the deadlines for investigating the civil rights complaints it receives undermines the agency's efforts to improve its environmental justice focus. (According to the EPA, the rule change is necessary to account for the often lengthy scientific process of determining how pollution can impact people.)

“It’s ironic that the one rule they try to advance is to take away the one measure of accountability for conducting a civil rights investigation,” says Marianne Engelman Lado, a lawyer for Earthjustice, an environmental law firm. 

Still, change may come to the agency as it faces mounting pressure from other directions: Last July, communities in five states, including New Mexico and California, sued the EPA for failing to finish investigations that have dragged for more than a decade. The lawsuit, filed by Earthjustice, challenged what it called the agency’s “pattern and practice of unreasonable delay…” which has forced residents to endure pollution from dirty industries, including landfills, oil refineries and power plants.

For Engleman Lado, no community should have to wait that long for a resolution. “Until the EPA actually prioritizes Title VI enforcement, it will keep sending out the message that they aren’t really serious about civil rights.”

Sarah Tory is a correspondent for HCN. Follow @tory_sarah

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