EPA Using Title VI of Civil Rights Act of 1964 To Persuade States To Mitigate Environmental Justice Concerns Raised In Issuing, Modifying or Renewing Pollution Control Permits
|EPA Using Title VI Of Civil Rights Act Of 1964 To Persuade States To Mitigate Environmental Justice Concerns Raised In Issuing, Modifying Or Renewing Pollution Control Permits|
The U.S. Environmental Protection Agency ("EPA") has drafted new interim guidance that explains how EPA will investigate Title VI administrative complaints challenging pollution control permits issued by a state or local agency that are alleged to have a disproportionate environmental impact on a minority population. EPA is planning to issue the interim guidance on January 23, 1998.
The new interim guidance, if issued in the form that we reviewed, will have serious repercussions for any facility owner or operator that needs to obtain, modify, or renew an environmental control permit issued by a state agency. Examples of such permits are landfill permits, air operating permits, and water discharge permits. Under the new interim guidance, a state environmental agency will be required to develop a mitigation plan to address the purported disproportionate environmental impacts on minority populations, if a Title VI administrative complaint, alleging a civil rights violation resulting from the state's permitting decision, is pending before EPA against the state agency.
Under the interim guidance, facility owners and operators are implicitly expected to participate in a public process which most likely will result in their having to adopt and implement mitigation measures that are beyond what is required to comply with the permit conditions or federal and state environmental laws and regulations. This new interim guidance will apply to issuing new permits and modifying or renewing existing permits. For renewals, the new interim guidance treats renewals as if they are new permit applications for purposes of mitigating any purported disparate impacts.
We understand that the Department of Justice has reviewed the interim guidance. EPA has not involved the states in developing the interim guidance although EPA recently discussed the guidance with state representatives on January 13.
Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin under programs or activities of recipients of federal financial assistance. 42 U.S.C. Â§ 2000-d. For EPA programs, Title VI applies primarily to state environmental programs and activities and does not apply to private regulated entities nor to federal agency decisions.
Under Title VI, both a discriminatory effect and discriminatory intent must be shown to substantiate a finding of discrimination. However, under agency regulations such as EPA's 40 C.F.R. Part 7, only a discriminatory effect need be shown to support an administrative finding of discrimination. The remedy under Title VI is generally termination of federal funds.
The U.S. Court of Appeals for the Third Circuit has just ruled that a private cause of action exists under EPA's discriminatory effect regulations. Chester Residents Concerned for Quality Living et al v. James M. Seif, Secretary of the Pennsylvania Department of Environmental Protection, Civ. Act. No 97-1125, Slip op. (3d Cir., December 30, 1997), reversing, 944 F. Supp. 413 (E.D. Pa. 1996). The plaintiffs in this case are seeking to challenge the state's issuance of an eighth waste facility permit to operate a facility in a predominately minority community as having a disproportionate impact on the plaintiffs.
The effect of this opinion, if not appealed, will be the ability of courts to fashion remedies that would not be available to a federal agency. If EPA were to bring a Title VI action in federal court against a state agency, the only available remedy is termination of federal funds. Alternatively, if a citizen group brings a Title VI action in federal court against a state agency, the Third Circuit opinion leaves open the door for the courts to later decide how to fashion the appropriate remedy for prevailing plaintiffs. (See footnote 15 of Slip op.)
Presently, EPA has approximately 50 Title VI administrative complaints, alleging a disparate impact, pending. Petitioners may now elect to file a complaint directly in federal courts since a broader range of remedies may be available.
After EPA accepts a complaint as stating a Title VI claim, EPA will conduct a factual investigation to determine whether the permit will have a "disparate" impact on a minority community.
The disparate impact analysis would examine:
The disparate impact analysis basically uses an arithmetic or statistical analysis to determine whether the disparity is legally significant. However, there is substantial room for discretion in conducting the analysis.
For example, in determining the demographics of the affected population, EPA in its recently issued "Interim Final Guidance For Incorporating Environmental Justice Concerns In EPA's NEPA Compliance Analyses" defines a minority population as being over 50% minority peoples in the affected area. In contrast, EPA defines minority community as one being more than 25% minority in affected ZIP codes for the purpose of identifying minority communities surrounding federal facilities.
If EPA concludes there is a disproportionate environmental impact on a minority population, the state has the opportunity to rebut EPA's preliminary finding of disparate impact or submit a mitigation plan. This is a substantial deviation in the way Title VI investigations have been conducted in the past.
In the past, the state could offer a substantial, legitimate interest to justify the permitting decision despite any disparate impact. Under EPA's interim guidance, the opportunity to justify the state permitting decision would be deferred until after the state and permittee have considered ways to mitigate the preliminary finding of disparate impact.
The mitigation plan is expected to:
If the disparate impact cannot be mitigated or EPA does not approve the mitigation plan, the state will then have the opportunity to "justify" the decision to issue the permit despite the disparate impact. The state must base the decision on a "substantial, legitimate interest" which must be more than the permit complies with applicable environmental regulations.
EPA will not consider the purported justification if a less discriminatory alternative exists. If a less discriminatory alternative is practicable, then it must be adopted to avoid a finding of noncompliance. Again, this is a substantial deviation from Title VI procedures. In the past, EPA would have the burden to identify a less discriminatory alternative. Under EPA's interim guidance, this burden appears to shift to the state by requiring that the state considers less discriminatory alternatives in its mitigation plan proposal.
If the state is unable to justify the permit decision, EPA will issue a preliminary finding of noncompliance which then triggers the state's procedural rights to challenge EPA's findings.
Because regulated entities are not within the scope of Title VI, EPA cannot impose any responsibilities directly on a permit applicant or permittee through the interim guidance. However, interim guidance asserts pressure to seek early resolution by identifying mitigation measures based on a statistical disparate impact analysis. A state cannot develop a mitigation plan and provide the necessary assurances unless the permittee is substantially involved. A permittee will be directly affected by either agreeing to permit conditions or adopting mitigation measures that may not otherwise be required to comply with applicable environmental requirements.
EPA does not have the legal authority to impose the mitigation measures directly but is encouraging the state and implicitly the permittee to adopt voluntary measures to address the environmental justice issues.
Community groups challenged a decision by the Louisiana Department of Environmental Quality ("LDEQ") to issue three air operating permits to Shintech, Inc. by filing a petition with EPA asking that EPA object to the permits because they failed to meet specified Clean Air Act requirements. In addition, the petitioners filed a Title VI administrative complaint against the LDEQ alleging specified environmental justice concerns.
During the pendency of EPA's considerations of the petitions, the National Environmental Justice Advisory Council ("NEJAC") passed Enforcement Resolution No. 10 calling on the EPA Administrator to fully consider the environmental justice concerns raised in response to LDEQ issuing the three air operating permits, and, if the Administrator grants the permits, then asking the Administrator to "provide the NEJAC with a written explanation of how, and the extent to which, environmental justice concerns were taken into account in the Agency's permitting decision."
Two days before the Administrator issued her decision, the LDEQ wrote to EPA agreeing to reopen the permit process to consider the technical issues identified in discussions with EPA staff and to discuss and address possible disparate impact on the surrounding community near where the Shintech plant is planning to locate.
The Administrator's decision partially granted the petition only to the extent that one of the permits failed to regulate processing vents. The remainder of the alleged technical violations were rejected. The decision went on to identify additional technical issues not identified by the petitioners.
The Administrator's decision also rejected the environmental justice concerns as a basis to object to the permits because, "Petitioners have not shown how their particular environmental justice concerns demonstrate that the Shintech Permits do not comply with applicable requirements of the Act." However, the Administrator in transmitting her decision to LDEQ, reminded the state agency that EPA still has pending before it the Title VI administrative complaint but was hopeful that through the reopening of the permitting process, the state could resolve the Title VI complaint. If no resolution is reached, the Administrator assured LDEQ that EPA "will expedite our ongoing Title VI review in order to ensure that the concerns of local residents are fully addressed."
Within the required 90 days of EPA's decision, LDEQ submitted a revised permit to control the processing vents. LDEQ has opened a 30 day comment period on the revised permits and will hold a day of hearings on the technical issues and another day of hearings on the environmental justice concerns. (Coincidentally, EPA's scheduled date of release of its interim guidance is the day before LDEQ's hearing date on the environmental justice concerns.)
EPA did not base its Shintech decision on the environmental justice concerns raised by the petitions. Rather, EPA used the threat of invoking an expedited Title VI review to assert apparent pressure on LDEQ to seek early resolution of the environmental justice issues through the permitting process. Shintech has limited ways to object and is placed in the position of either adopting mitigation measures that are not otherwise required to be in compliance with the Clean Air Act or having to find a new site.
The interim guidance contains no substantive criteria to guide a state agency and EPA resulting potentially in EPA using highly subjective standards in assessing a proposed mitigation plan. The EPA Administrator, however, is turning to the Office of General Counsel to implement the interim guidance. She has just created a new Civil Rights Division in OGC to handle Title VI matters.
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