Title VI Guidance Summarized

[Lenny Siegel <lsiegel@igc.apc.org>]

TITLE VI GUIDANCE SUMMARIZED

The fate of EPA'S Interim Guidance on "Title VI," which is under fire
from many Brownfields development interests, is critical to the federal
government's efforts to address environmental racism, in particular the
disproportionate impact of environmental pollution upon communities of
color.

Title VI is a key section of the Civil Rights Act of 1964, as amended.
EPA's Interim Guidance, issued this February, provides a framework EPA's
Office of Civil Rights (OCR) to process Title VI complaints "alleging
discriminatory effects resulting from the issuance of pollution control
permits by state and local governmental agencies that receive EPA
funding."

Title VI itself establishes the basis for such complaints. It reads: "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." EPA initially applied
Title VI "to public water and sewerage systems or in employment
practices," but it is increasingly being asked to consider the Civil
Rights law in its oversight of air, water, and solid (including
hazardous) waste permitting programs. Complaints associated with permits
covering administrative modifications only, such as name changes, are
likely to be dismissed.

Though President Clinton's Environmental Justice executive order (No.
12,898) commits EPA itself to follow the principles of Title VI in its
own permitting programs, Title VI (in this context) directly applies
only to state and local governments that receive federal funds. The
Supreme Court has ruled, however, that Title VI does more that prohibit
intentional discrimination. It authorizes federal agencies to implement
regulations that outlaw discriminatory EFFECTS. This is important in
challenging the disproportionate impact of pollution, because it renders
moot the question whether polluters deliberately placed undesirable
facilities in poor, non-white areas, or whether socioeconomic forces
drove the community to locate at the edge of the polluting facilities.

Furthermore, the acceptance of EPA money by a state or agency obligates
that entity to comply with Title VI for all of its permitting programs,
not just those that receive EPA funds. If EPA finds that an agency
discriminates, even after an EPA determination of noncompliance, it is
required to "initiate procedures to deny, annul, suspend, or terminate
EPA funding." Furthermore, the Department of Justice may seek injunctive
relief and individuals may seek to enforce the law by filing a private
right of action.

After receiving a Title VI complaint, the Office of Civil Rights
conducts "a factual investigation to determine whether the permit(s) at
issue will create a disparate impact, or add to an existing disparate
impact, on a racial or ethnic population. .... If OCR makes an initial
finding of a disparate impact, it will notify the recipient [of EPA
funds] and the complainant and seek a response from the recipient within
a specified time period." This provides the recipient "the opportunity
to rebut OCR's finding, propose a plan for mitigating the disparate
impact, or to 'justify' the disparate impact." If EPA is dissatisfied,
it issues a preliminary determination of noncompliance. Recipients have
the opportunity to voluntarily comply and to pursue informal resolution
with the complainant.

Mitigation means the taking of actions, not directly subject to the
permit in question, to address the disparate impact. Justification means
showing that the affected population will benefit from the issuance of
the permit - new jobs, for example - and that there is no better way of
achieving that benefit .

EPA defines five basic steps for determining whether or not a disparate
impact exists:

1) Identify the affected population. In the absence of better
information, proximity is considered a reasonable indicator  of impact.

2) Determine the demographics of the affected population. OCR uses
demographic mapping technology, such as geographic information systems
(GIS).

3) Determine the universe of facilities. That is, when considering an
agency's review of a facility's application for an environmental permit,
EPA will look at other facilities affecting the same population.
"Ordinarily, OCR will entertain cases only in which the permitted
facility at issue is one of several facilities, which together present a
cumulative burden or which reflect a pattern of disparate impact."
However, the universe does not include facilities beyond the recipient's
jurisdiction, even if they also impact the local population.

Significantly, EPA recognizes that permits manage, rather than prevent
pollution. "Consequently, permits that satisfy the base public health
and environmental protections contemplated under EPA's programs
nonetheless bear the potential for discriminatory effects where residual
pollution and other cognizable impacts are distributed
disproportionately to communities with particular racial or ethnic
characteristics. Based on its experience to date, the Agency believes
that this is most likely to be true either where an individual permit
contributes to or compounds a preexisting burden being shouldered by a
neighboring community, such that the community's cumulative burden is
disproportionate when compared with other communities; or where an
individual permit is part of a broader pattern pursuant to which it has
become more likely that certain types of operations, with their
accompanying burdens, will be permitted in a community with particular
racial or ethnic characteristics."

4) Conduct a disparate impact analysis. In essence, the impact of
permit-managed pollution upon the affected community is compared to the
environmental load experienced by a comparison community with a white
population.

5) Determine the significance of the disparity. In this final step, the
comparison is expressed statistically.

Thus, the Title VI guidance does not assume that all development
proposals requiring environmental permits are likely to cause or worsen
environmental injustice. Rather, it sets forward a process whereby a
complainant can insist that EPA evaluate the issuance of permits to
determine if a new project is likely to worsen or cause a disparate
impact.

The full document, "Interim Guidance For Investigating Title VI
Administrative Complaints Challenging Permits," is available on EPA's
web site at <http://es.epa.gov/oeca/oej/titlevi.html>.

-- 

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@igc.apc.org