A Sleeping Giant Awakens (Maybe?) ' "Environmental" Enforcement Of Title VI Of The Civil Rights Act Of 1964 In The Era Of The Biden Administration

• Published date: 07 January 2022
• Subject Matter: Environment, Environmental Law
• Law Firm: Kilpatrick Townsend & Stockton LLP
• Author: Ms Susan Richardson, Alexander M. Bullock and Jeffrey J. Davidson

On October 1, 2021, the Environmental Protection Agency (EPA) issued its draft Strategic Plan (Plan) for 2022 - 2026.¹ While the Plan renews EPA's commitment to its original principles (follow the science, follow the law and be transparent), it now adds a new foundational principle - advance environmental justice and equity. EPA emphasizes the importance of this fourth foundational principle by making environmental justice and enforcement of the Civil Rights Act of 1964 as the second of the six goals of the Plan, just below the first goal to "tackle the climate crisis."² The stated purpose of this civil rights-driven goal is to "take decisive action to advance environmental justice and civil rights" and the Plan specifically highlights EPA's commitment to strengthen the External Civil Rights Office (ECRO) and its ability to enforce federal civil rights laws to their "fullest extent" by conducting "affirmative investigations" in overburdened communities and securing timely and effective resolutions to address discrimination.

Title VI of the Civil Rights Act contains two provisions EPA considers as the basis for environmental justice claims and policy. First, Section 601 provides that no person shall "on the grounds of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subject to discrimination under any program or activity" covered by Title VI. Second, Section 602 authorizes federal agencies to "effectuate the provisions of Section 601 by issuing rules, regulation or orders of general applicability."

To effectuate Title VI, EPA has promulgated regulations that are designed to ensure that recipients of federal funds do not take actions that are intentionally discriminatory or have a discriminatory effect based on race, color, or national origin. These regulations authorize EPA to conduct affirmative compliance reviews and provide a process for affected communities to file a Title VI complaint. After a complaint is filed, EPA has 20 days to determine whether it merits an investigation and 180 days to issue a preliminary finding. If EPA makes a finding of discrimination, it must request that the recipient of funds address the problem voluntarily. If the recipient does not take voluntary actions, EPA can refuse to continue providing federal funds.

Historically, very few Title VI complaints have resulted in concrete action by EPA. A 2016 study by the U.S. Commission on Civil Rights (Commission) concluded that EPA had failed to effectively carry out its environmental justice objectives, leaving sensitive communities at risk. The Commission concluded that EPA had never made a formal finding of discrimination nor withdrawn funding on the basis of civil rights violations. Similarly, a 2015 investigation by the Center for Public Integrity found that EPA's failure to enforce Title VI extends...