Clinic Casework

In 2003, the Ashurst Bar/Smith Community Organization (ABSCO) in Tallassee, Alabama, hoping to protect themselves from threats to their health, their homes, and their way of life, came together to oppose a permit for the expansion of Stone’s Throw Landfill. ABSCO submitted a civil rights complaint to the EPA alleging that the Alabama Department of Environmental Management (ADEM) violated Title VI of the Civil Rights Act of 1964 and EPA regulations by approving the Stone’s Throw Landfill in Tallassee without an adequate analysis of whether the permit complied with civil rights law. Specifically, ABSCO alleged that ADEM had not considered harm caused by the Landfill on Ashurst Bar/Smith, a historic community where African American land ownership dates back to the 1870s. Ashurst Bar/Smith is 98% black, whereas the area serviced by the Landfill is 74% white. Community residents also alleged that ADEM’s decision to approve the permit had a disparate impact on the basis of race, raising concerns about contamination of surface and ground water and increases in disease-carrying rodents amidst uncovered piles of waste.

EPA accepted the complaint for investigation in 2005 but then residents did not hear back from the EPA for a decade, despite a legal requirement that the EPA issue preliminary findings within 180 days of accepting a complaint. In 2017, in response to litigation challenging EPA’s delay, EPA closed its investigation. EPA never visited the site nor conducted any monitoring activities to the knowledge of residents but nonetheless stated that there was insufficient evidence of ADEM’s noncompliance. At the same time, EPA indicated that the investigation had raised systemic questions about ADEM’s civil rights compliance, more generally, and that it was engaging in negotiations with ADEM in the context of two other open complaints, including the Uniontown case, also on the EJ Clinic docket. ABSCO has asked to be included in these negotiations.

In 2016, ADEM approved yet another permit for the Stone’s Throw Landfill, despite community opposition and the fact that, at that time, the ABSCO civil rights complaint was outstanding. In 2017, the Clinic, together with our co-counsel Earthjustice and the NAACP Legal Defense & Educational Fund, Inc., filed a second complaint on behalf of ABSCO. EPA accepted and is now investigating this complaint.

In 2002, Citizens Against Radioactive Dumping (CARD) filed a Title VI complaint with EPA to challenge the New Mexico Environment Department (NMED) permitting process, and its decision to issue a permit for the Triassic Park hazardous waste facility in Chaves County. The complaint alleged that NMED had discriminated against the Spanish-speaking population in Chaves County by issuing the Triassic Park permit without analyzing whether the permit would comply with civil rights law and conducting the permitting process in a manner hostile to Spanish-speaking residents—behavior constituting a pattern and practice of discrimination on the basis of race, color, or national origin. Although the state approved the permit, the facility has not yet been built. Area residents remain concerned that the permit would at some point allow Triassic Park to operate in what is already a region overburdened by sources of hazardous pollutants.

EPA accepted the complaint for investigation in 2005 but failed to take action until faced with litigation challenging EPA’s unreasonable delay in handling this and other complaints. Finally, in 2017, EPA announced that it reached a resolution agreement with NMED. The resolution agreement requires NMED to translate and make public all vital information about the permitting process to persons with limited English proficiency (LEP), and develop and implement a public participation policy, an LEP policy, and a non-discriminatory grievance procedure. The Clinic is working with the University of New Mexico Environment and Natural Resources Law Clinic and Earthjustice on efforts to ensure implementation of the resolution agreement.

In 2000, Sierra Club's Lone Star Chapter and Rev. Roy Malveaux, of People Against Contaminated Environments, filed a complaint with EPA alleging that the Texas Commission on Environmental Quality's (TCEQ) violated Title VI and EPA regulations when it issued a permit for the expansion of an ExxonMobil oil refinery in the Charlton-Pollard neighborhood, a low-income, African American community in Beaumont, Texas. For many years, TCEQ had failed to enforce air pollution laws despite the refinery’s repeated violations of air pollution limits. The complaint alleged that TCEQ permitted emission that had an adverse impact on the surrounding community, and the failure by TCEQ to notify residents about the permitting process deprived residents of an adequate opportunity to participate in decisions that would significantly impact their lives.

EPA accepted the case for investigation in 2003, but took no action for more than a decade. After litigation and advocacy by the Clinic, Earthjustice, the University of Texas at Austin’s Environmental Law Clinic, and our community partners, EPA reached a resolution agreement with the Texas Commission on Environmental Quality (TCEQ) in 2017. Under the resolution agreement, TCEQ agreed to install an air quality monitor in Charlton-Pollard and to hold community meetings in the neighborhood to inform residents about TCEQ’s environmental complaint process and opportunities for public involvement in permitting. However, the air quality monitor has been installed too far away from the refinery to accurately measure community exposure to pollution. Additionally, TCEQ’s public outreach and complaint processes remain deeply flawed. The Clinic is advocating to address these deficiencies in compliance with the resolution agreement. The Clinic and its clients are working together with the University of Texas at Austin's Environmental Law Clinic, which is evaluating the refinery's most recent permit renewal application.

For decades, communities in eastern North Carolina voiced concerns about the harmful effects of industrial swine operations on communities of color. Negative impacts include increased air pollution levels (including emissions of particulate matter, ammonia, and hydrogen sulfide), groundwater contamination, and detrimental effects on human health, including respiratory disease. In 2014, the state considered and approved a general permit for the industry, once again ignoring the concerns of local communities facing environmental and health hazards linked to these operations. On September 3, 2014, the North Carolina Environmental Justice Network (NCEJN), the Rural Empowerment Association for Community Help (REACH), and the Waterkeeper Alliance filed an administrative complaint with the EPA against the North Carolina Department of Environmental Quality (DEQ), alleging that DEQ’s approval of the permit for more than 2000 industrial swine operations in eastern North Carolina discriminated against African Americans, Latinos and Native Americans. DEQ’s lax permitting process, complainants argued, would have a disparate impact on communities of color in eastern North Carolina. The groups later filed a second complaint alleging they had been victim to acts of intimidation aimed at interfering with their attempts to exercise their civil rights.

In January, 2017, after a site visit and interviews with community residents, the EPA issued a letter of concern recommending that DEQ to improve its civil rights compliance program and address the issues of discrimination and intimidation detailed in the complaints. Complainants and DEQ are now engaged in alternative dispute resolution to resolve the issues.

Between 1995 and 2005, CAlifornians for Renewable Energy, Ashurst/Bar Smith Community Organization, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club, and Michael Boyd filed complaints with the EPA pursuant to Title VI of the Civil Rights Act of 1964 and EPA regulations. These complaints alleged discrimination by state and regional agencies in the process of granting permits for a variety of facilities that further threatened already-overburden low-income communities of color with new environmental and health risks. Each of these organizations experienced extended delays in their attempts to secure justice for their communities. The St. Francis Prayer Center, for example, filed its complaint in 1992; EPA accepted the complaint for investigation in 1995, and did not issue preliminary findings until 2017. In July, 2015, the complaianants filed CARE v. EPA, alleging that EPA’s delays violate a regulatory mandate that the EPA issue preliminary findings and recommendations within 180 days of accepting a Title VI complaint for investigation.

After the Clinic launched in January 2017, it joined Earthjustice as co-counsel in this matter and filed briefing on cross-motions for summary judgment. EPA moved to close the five underlying complaints and then asked the court to dismiss the litigation as moot, The Clinic’s clients are resolved to continue fighting for a declaration that EPA must abide by its regulatory deadlines. If successful, CARE v. EPA could set an important precedent to oblige EPA to respond to Title VI complaints and no longer allow civil rights enforcement to languish while communities bear the brunt of environmental contamination.

In 2010, the Tennessee Valley Authority shipped approximately 4 million tons of coal ash across state lines from Kingston, Tennessee to Arrowhead Landfill, a municipal solid waste facility in Uniontown, Alabama. The coal ash had breached an impoundment and was considered hazardous under the Superfund Act, but when it arrived in Uniontown, it fell under the provisions of a different federal law that does not classify coal ash as hazardous. Uniontown, a small community of about 2,000, is approximately 90% African-American and has a per capita income of under $9,000. Although the town is already overburdened with a range of polluting activities, the Arrowhead Landfill—the largest landfill in Alabama—is permitted to accept 15,000 tons of waste per day from 33 states, including the entire eastern seaboard. The Landfill is also adjacent to a historic African American cemetery.

Community members filed a complaint in 2013 with EPA alleging that the state’s approval of a permit modification and renewal for the landfill in 2011 and 2012 have a disparate impact on the basis of race in violation of the Civil Rights Act and EPA regulations. EPA accepted the case for investigation and has conducted a site visit. Our clients have also faced significant intimidation and filed a second civil rights complaint with EPA challenging ADEM’s failure to protect them from intimidation and retaliation. The Clinic, along with co-counsel Earthjustice, represents community members on their administrative complaints.

The St. Francis Prayer Center filed a complaint with EPA in 1992, alleging that Michigan Department of Environmental Quality (MDEQ) violated Title VI and EPA regulations when it approved a permit for a wood-incinerator power station located adjacent to a predominantly African American and low-income community in Flint, Michigan. EPA accepted this complaint for investigation in 1995, and in January 2017 finally issued a preliminary finding of discrimination – the second such finding in EPA’s history. At the same time, however, EPA closed the case without requiring that MDEQ change its policies or practices. EPA instead indicated that it would address the need for reforms at MDEQ in the context of another case that was filed in the wake of the Flint Water Crisis. Despite the fact that EPA failed to require any remedy for discrimination, MDEQ filed objections to EPA’s findings. The clinic continues to represent the complainants in requests for their involvement in any remedy negotiations. Earthjustice and the Sugar Law Center serve as co-counsel for the case.