By Willy Blackmore | Word In Black
Overview: Title XI is an EPA rule designed to keep big polluters from using minority communities as dumping grounds. But the tables have turned, and Title XI has become a paper tiger.
(WIB) – In 1992, Flint, Michigan, the town widely known for contaminated water, had a different lead problem.
The issue was a proposal to build a power-generation station on the edge of town that could burn a variety of fuels, including a number of waste products like scrap wood. The Genesee Power Station would provide electricity for the small, largely white town of Genesee, but the actual generating — and the pollution that comes with it — would happen in a predominantly Black part of Flint.
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Flint Residents were worried, particularly because there was no guarantee that wood burned in the facility would have lead paint removed from it first.
There could potentially be mercury and arsenic emissions as well. So residents and local elected officials tried to voice their concerns during the public comment period, both through written comment and in-person hearings. But doing so proved to be less than easy.
The first government hearing with a public comment period was held in Lansing, 65 miles away from Flint. It not only started 9 hours late, but there was no opportunity for feedback until halfway through a meeting that eventually took six hours.
Adding insult to injury: At a later hearing held in Flint, in a Black neighborhood, there were armed police officers stationed in the room — despite no official requirement for security presence. A power plant for a white community was about to be placed in a Black one, and Black residents were barely able to voice their concerns about it.
So Father Phil Schmitter of Flint’s St. Francis Prayer Center filed what’s called a Title XI complaint with the Environmental Protection Agency, alleging that the community’s civil rights were being violated.
“This is a diabolical example of blatant environmental racism and classism—another time people of color and low income are targeted by the continuing rush for profit by our corporations regardless of who is victimized by the pollution,” Schmitter along with Sister Joanne Chiaverini wrote in their 1992 letter.
In theory, Title XI is the most effective tool that the Environmental Protection Agency has for addressing climate injustices. Part of the Civil Rights Act of 1964, Title XI declares, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
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Since federal funding touches so many aspects of American life, especially when it comes to the environment, Title XI complaints like the one filed over the Genesee Power Station should give the agency extensive opportunities to investigate — and potentially remedy — environmental injustices. In practice, however, that’s far from being the case: for decades the EPA rarely ever opened any investigations, never mind actually finding anyone at fault or withholding any funding.
That’s changed under the Biden administration, which empowered the EPA under administrator Michael Regan to pursue civil rights cases more aggressively than ever before.
But now Title XI is under attack, particularly the so-called disparate impact standard, which makes it so the EPA can investigate instances of discrimination without having to prove specific intent to discriminate.
Louisiana Gov. Jeff Landry, then the state’s attorney general, sued the EPA last year over its Title XI investigation of industrial pollution permitting in Cancer Alley, where 40% of the population is Black. And after the agency drastically cut chemical emissions specific to a plastic factory in the area last month, 23 other Republican state attorneys general asked the EPA to stop Title XI investigations altogether.
In a letter to the agency, the officials argued that, like affirmative action, disparate-impact investigations actually discriminates against white people.
Environmental Justice Tool
After a Title XI complaint is filed, the EPA has 180 days to respond to an accepted complaint with preliminary findings. When Flint residents were fighting the Genesee Power Station in the early 1990s, that timeline should have meant that they would have received some word from the EPA by 1993 — and certainly well before 1995, when the power plant went online in Flint. Instead, it was January 17, 2017 — the last full day of the Obama administration — that the EPA finally responded to Father Schmitter’s complaint.
While the letter came 24 years late, it was in a way historic: it marked only the second time ever that the EPA said that it found evidence of discrimination after conducting a Title XI investigation (the first was in 2011). Despite its finding, the EPA didn’t withhold any money from the Michigan Department of Environmental Quality, or make any changes to the plant, which the EPA itself has named as a “significant violator” of pollution standards.
“Communities of color and schoolchildren have had to grow up near this horrible power plant and be subjected to its harmful emissions,” Father Schmitter said in a statement at the time. “It’s unbelievable that it took EPA decades to make this finding, but it’s important to send a clear message to MDEQ, even now, that it needs to change the way it does business.”
While his frustration is understandable, Father Schmitter’s statement is a bit misleading: the EPA said that Black residents were victims of discrimination in the course of the public-comment period, but the agency did not find that locating the plant in a Black Flint neighborhood was racially discriminatory.
In many ways, the Flint case was par for the course for EPA civil rights investigations. A 2015 report from The Center for Public Integrity found that the agency’s civil rights office rejected or dismissed more than 9 out of 10 Title XI complaints over a period of nearly 20 years.
While complaints were rejected for a variety of procedural reasons, and the very few that actually led to investigations tended to drag on like Flint’s, CPI found one significant commonality: “While the reasons vary, the EPA’s civil-rights office rarely closes Title VI complaints alleging environmental injustice with formal action on behalf of communities of color.”
Tables Have Turned
But that was then: under President Joe Biden and Michael Regan, Biden’s pick for director of the Environmental Protection Agency, the civil rights office has at times been at the forefront of the agency’s work, which has arguably been more focused on environmental justice than ever before. In the first two-and-a-half years of the Biden Administration, the EPA opened sixteen investigations spurred by Title XI complaints across nine different states, including the Cancer Alley complaint.
The investigation following that complaint proceeded quickly, especially by the EPA’s formerly sluggish standards. In 2022 the agency sent a letter to the Louisiana Department of Environmental Quality detailing the investigation, but not the agency’s official findings.
The civil rights office said that the neoprene manufacturer Denka Performance Elastomer “may have failed to provide” Black residents and Black schoolchildren in the area with adequate information about the health risks of chloroprene emissions. Not only that, but “EPA’s initial factual investigation strongly suggests that Louisiana residents who identify as Black and are living and/or attending school near the Denka facility have been subjected to adverse and disparate health impacts as a result of LDEQ’s decisions,” according to the letter.
The EPA seemed on the verge of following that letter with an official ruling that both LDEQ discriminated against Black residents when Landry sued the agency. That suit, in which Landry refers to the agency as “social justice warriors fixated on race,” claims EPA can enforce the Civil Right Act only when there’s irrefutable evidence of racial discrimination, , which the agency does not need to either find or have existed at all under the disparate impact principle.
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The EPA dropped its Cancer Alley investigation, which was nearing a settlement agreement with LDEQ, five weeks later.
With the Landry lawsuit looming — along with the potential of it ending up in front of a conservative-majority Supreme Court that’s shown hostility to both environmental regulations and race-based programs like affirmative action — the EPA civil rights office has reverted to its old, ineffective ways.
Title XI cases have been dropped across the country, and EPA appears to have lost its zeal to investigate as its primary means of addressing environmental injustices. It is instead attempting to right wrongs through regulations, such as the 80% cut in chloroprene emissions that it enacted recently. That rule will affect precisely one plant in the entire country: the Denka Performance Elastomer facility in LaPlace, Louisiana.
While Title XI doesn’t have a track record of actually righting environmental wrongs, the flurry of investigations at the beginning of the Biden administration showed what it, together with disparate impact, could potentially be. And what it could be is a far better tool than the one that was used to find proof of discrimination nearly a quarter-century too late in Flint.
But as things stand now, there’s no saying how long it might be before the EPA formally finds proof of discrimination again in a Title VI investigation.