By Chloe Gossett, F22 Environmental Clinic Student
All communities have the right to a fair distribution of environmental burdens and benefits. But in reality, this is not typically the case. A disproportionate amount of minority and low-income communities bear the burden of environmental hazards and are denied access to a healthy environment. The Environmental Protection Agency (EPA) has maintained goals related to environmental justice for decades, but environmental inequities persist.
The EPA’s current environmental justice efforts are primarily based on Executive Orders and Title VI of the Civil Rights Act. The EPA has authority to ensure that environmental permits issued by states under the EPA’s programs are non-discriminatory. This authority is based on Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in any program that receives federal funding. Additionally, three Executive Orders lay the foundation for environmental justice policies in the federal government. The first of these dates back to 1994 and directs all federal agencies to strive for achieving environmental justice. President Biden signed two more Executive Orders in 2021. One Order addresses climate change impacts on disadvantaged communities and the other establishes a government-wide agenda promoting equal opportunity for underserved communities.
In August 2022, the EPA released Interim Environmental Justice and Civil Rights in Environmental Permitting Frequently Asked Questions (FAQs). The EPA released the FAQs to help permitting programs better identify and address unfair permitting processes and outcomes. The EPA notes that the FAQs are a “living document” that will be revised as the field progresses.
The FAQs don’t mark a change in environmental justice policy, but they clarify that “[a] recipient’s compliance with the requirements of federal environmental laws with respect to permitting activities and decisions does not necessarily mean that the recipient is complying with federal civil rights laws.” The FAQs include a few key environmental justice-related best practices with respect to permitting, such as early screening for environmental justice and civil rights concerns and promotion of community engagement, and could indicate progress for marginalized communities moving forward and a renewed investment in ensuring environmental justice is achieved. The FAQs explicitly state that denying a permit may be the only way to avoid a Title VI violation. Permit denial based on Title VI is rare, so this guidance could be key in advancing environmental justice in the future.
The EPA notes in the FAQs that “it is time to use the full extent of its enforcement authority under federal civil rights laws, including Title VI of the Civil Rights Act of 1964.” Additionally, the EPA recognized that, despite many years of effort, the “legacy of environmental injustice represents a systemic deficit in public health and environmental protection.”
In addition to the FAQs, the EPA’s investigation into Title VI Civil Rights Act Complaints can be a powerful tool for the agency to address environmental injustice. In November 2020, the EPA entered an Informal Resolution Agreement with the Texas Commission on Environmental Quality (TCEQ) after investigating whether the TCEQ discriminated against individuals with limited English proficiency in the state’s permitting and public participation process. Since this agreement, three separate Title VI Complaints against the TCEQ have been filed with the EPA. Of these three complaints, one is in negotiation for an Informal Resolution Agreement and two are under investigation. Title VI complaints and investigations can result in changes that improve environmental justice, but there remains a need for more systemic changes to ensure that environmental justice and civil rights concerns are addressed in every environmental permitting program.
Overall, the EPA’s FAQs and Title VI investigations are steps toward a more just society where people aren’t injured for the profit of industry. This will be a space to watch and an opportunity to advance justice as climate change increases the burdens felt by overburdened communities in the coming years.
The articles published on this site reflect the views of the individual authors only. They do not represent the views of the Environmental Clinic, The University of Texas School of Law, or The University of Texas at Austin.
