In 1978, the Inspector General Act created offices with the authority to investigate and oversee specific governmental agencies. One of those was the Environmental Protection Agency.
The findings of the report were sent to the appropriate EPA offices, with a letter detailing six recommendations for improvement. A response to the conclusions was requested by November 28. Everything is being posted at epa.gov/oig.
The report underscored that the EPA’s External Civil Rights Compliance office (ECRCO) had not been proactive in overseeing and pushing for compliance. Instead, they had waited for complaints to be filed. Even within those parameters, they had failed by not meeting the 180-day deadline for investigation. Some cases remained unresolved for decades.
Marianne Engelman Lado, Director of Environmental Justice Clinic at Vermont Law School, is well versed in how the EPA has fallen short on fulfilling its responsibilities. In 2019, she wrote the article, “No More Excuses: Building a New Vision of Civil Rights Enforcement in the Context of Environmental Justice.” It examined the impacts of these failures on what is currently referenced as frontline communities.
The Environmental Justice movement has been active for decades. Yet, as Engelman Lado points out, environmental laws have failed to eliminate the “adverse impacts on communities of color” because they don’t tackle if populations are treated dissimilarly on the basis of race. Statutes have also neglected to confront the racial disparities in exposure “to sources of pollution.” The laws leave gaps in protection by not taking into account the different consequences based on these factors.
A 2011 independent report commissioned by then EPA director Lisa Jackson showed that the EPA had a “record of poor performance” in the enforcement of civil rights. When Gina McCarthy took over, she was given feedback on the existing backlog of investigations, as well as on the need for transparency. During the Obama administration, although both administrators were strongly onboard with taking action against racial discrimination, they were stymied by an institutionalized and entrenched lack of political will.
Part of the reason was that when the EPA was established, neither civil rights nor racial justice were at the forefront of the department’s mission. This was reflected in both a lack of commitment to the issue, and the type of staff which was hired. Very few employees had a background in civil rights litigation. Most were white. Even throughout the 1970s and 1980s, the EPA saw its mission as strictly “pollution control,” with other agendas being considered a “distraction.”
The EPA has repeatedly been called out for their failure to deal with Title VI complaints. The Center for Public Integrity did a story that found “more than nine of every ten times communities had turned to the EPA for help,” their complaints were either rejected or dismissed.
In the midst of a global pandemic, the current EPA administrator, Andrew Wheeler has feverishly ramped up his work to weaken environmental regulations. With new research showing that breathing polluted air actually increases your risk of succumbing to the worst ravages of Covid-19, these regulatory rollbacks have never been so dangerous. Communities of color face disproportionate impacts of both Covid-19 and pollution. It seems this isn’t a coincidence.
Engelman Lado points to several ways the EPA could get up to speed. One solution would be to have the responsibility for dealing with Title VI cases be handled within the Department of Justice or under the dedicated jurisdiction of an independent federal agency, like the Equal Employment Opportunity Commission.
I spoke with Engelman Lado by phone for additional insights. She told me:
“I think the OIG (Office of the Inspector General) report is news. The DOJ (Department of Justice) and EPA have tolerated a lack of enforcement for years, and the OIG is calling for a response and accountability. Particularly in this moment of reckoning, when the country is more focused on our failure to address the many forms of racial inequality, attention by the OIG can help build momentum for change.”
Engelman Lado pointed out that the “agency’s failures have deep roots that extend further back than January 2017.” She added, “It’s a longstanding problem, though the EPA started to take some small but significant steps forward during the Obama Administration to develop a more meaningful civil rights enforcement program.”
Referencing the “significant and ongoing racial disparities in exposure to environmental pollution and the location of toxic sites,” Engelman Lado qualified the EPA’s performance as “poor overall.” She noted that “Environmental decision-makers, such as applicants for permits and state environmental enforcement agencies, haven’t been held accountable for civil rights compliance.”
On the positive side, Engelman Lado believes that “with the political will, there are any number of concrete steps that EPA can take to enforce the law.”