EPA To Affirmatively Enforce Title VI

• Published date: 23 November 2021
• Subject Matter: Environment, Environmental Law
• Law Firm: Winston & Strawn LLP
• Author: Mr Jonathan D. Brightbill and Jennifer P. Porter

The Environmental Protection Agency ("EPA") is "taking a fresh look" at its authority to prioritize environmental justice.¹ This includes the EPA's "affirmative authority" to use Title VI of the Civil Rights Act to address disparate impacts. This has significant implications for entities seeking federal environmental permits or funding. Questions exist, however, regarding whether the EPA's'or any federal agency's'statutory authority under Title VI is so broad.

Title VI, Disparate Impact, and Environmental Justice

EPA Principal Deputy General Counsel Melissa Hoffer recently announced that the EPA would, for the first time, exercise "affirmative authority" to ensure that EPA funding recipients comply with Title VI.² Under Title VI of the Civil Rights Act, federally funded programs, activities, and institutions are prohibited from discriminating on the basis of "race, color, or national origin."³ Those found to have violated the law may lose their federal funds or approvals.⁴

Hoffer acknowledged that the EPA's prior enforcement under Title VI has been "scant."⁵ Title VI regulations permit parties to petition the EPA and other agencies to investigate whether permitting and other actions by funding recipients discriminate against the protected classes. The EPA has never made a formal finding of discrimination, never referred a case to the Department of Justice ("DOJ"), and never initiated a proceeding to withhold funding.⁶

Hoffer said the EPA now plans to start affirmatively using Title VI, because "without meaningful enforcement, recipients of federal funds make decisions every day that exacerbate racial inequities."⁷ Further, the EPA's External Civil Rights Compliance Office ("ECRCO") announced it will issue guidance on how to consider disparate impacts in state-issued federal air and water permits. The EPA plans to publish a cumulative impact guidance by the end of the year. This is intended to address claims that permitting decisions disproportionately harm historically disadvantaged communities.

Not only is the EPA planning to affirmatively use Title VI, it is also pressing the DOJ to require other federal agencies to do the same. Lilian Dorka, director of the EPA's ECRCO, said during an EPA National Environmental Justice Advisory Council meeting that she wants to make sure all agencies "are taking into consideration civil rights requirements and civil rights considerations."⁸ She wants the DOJ to clarify "that with respect to ensuring environmental...