Thursday, April 13, 2017

Five Communities Demand EPA Respond to Civil Rights Complaints

Five communities across the country seek a federal court order that would require the EPA to comply with civil rights law. The groups—in California, Michigan, Alabama, and New Mexico—filed complaints with the EPA between 1992 and 2003 alleging racial discrimination in the permitting of polluting facilities by state environmental agencies. According to the complaint, EPA has allowed the complaints to languish for decades, in violation of its own regulations under the Civil Rights Act of 1964. Yale Law School’s new Environmental Justice Clinic, which launched in January, is representing the plaintiffs with co-counsel Earthjustice before the U.S. District Court for the Northern District of California.

“The EPA’s inaction ignores the horror of environmental injustice in our country,” said Father Phil Schmitter, who serves as a board member and the Sacramental Minister of the St. Francis Prayer Center in Flint, which is one of the plaintiffs in the suit. In 1992, he filed a complaint with the EPA alleging race discrimination during the permitting process for a power plant in Flint. “For me, to be a priest means to speak out publicly when people are treated unfairly,” he explained.

According to the complaint, Michigan’s environmental agency violated the civil rights of Flint’s predominantly African American and low-income community members. “The agency prevented Flint residents from voicing their concerns during the public comment period,” recalled Father Schmitter, “and failed to consider the harm the polluting facility would have on our community, which is predominantly African American.” After allowing Father Schmitter’s complaint to languish for 25 years—and decades after the power plant had been granted a permit and constructed—the EPA found on January 19, 2017 that Michigan had in fact violated the civil rights of Flint community members in 1992.

The Civil Rights Act of 1964 prohibits states and other recipients of federal funds from discriminating on the basis of race or national origin, and gives federal agencies responsibility for enforcing the law. “EPA’s regulations allow aggrieved community members to file civil rights complaints with the agency,” explained clinic student Henry Weaver ’18, “but the community can’t bring its case to court. As a result, we need to count on the EPA to enforce the law.”

Although the EPA’s regulations require the agency to investigate civil rights complaints within 180 days, each of the community groups involved in the lawsuit has been waiting more than a decade for action. “I believed that the EPA was here to protect the people in my community from injustice, but only after fourteen years and our litigation are they starting to pay attention to our civil rights,” explained Phyllis Gosa of the Ashurst Bar/Smith Community Organization, another plaintiff in the lawsuit. “I am committed to standing up for the inheritance that my ancestors left,” she went on, “because if we don’t fight, all our history and land will be covered by this landfill.” 

The other plaintiffs to the lawsuit are Californians for Renewable Energy (CARE) and its president Michael Boyd, Citizens for Alternatives to Radioactive Dumping (CARD), and Sierra Club.

The plaintiffs seek a court order that both declares that the EPA violated its deadline for investigating civil rights allegations, and directs the EPA to investigate all outstanding and future complaints filed by the plaintiffs in a timely manner. “While the EPA resolved the complaints filed by the St. Francis Prayer Center and CARD after this lawsuit began in 2015, the agency has yet to properly investigate the others,” explained Weaver. “EPA has not even denied the egregious violations of its own deadlines. Instead, it has attempted to hide behind various procedural arguments in order to avoid responsibility.”

“The EPA can’t dispute that it has a poor record on civil rights enforcement,” said clinic student Hillary Aidun ’17. In September, the U.S. Commission on Civil Rights published a report about the EPA’s failure to comply with its obligations under the Civil Rights Act. In response to Father Schmitter’s 1992 complaint, EPA has now made a preliminary finding of discrimination—only the second ever in the history of the agency. According to Aidun, “the Environmental Justice Clinic—in partnership with Earthjustice and community members—will continue to press the EPA to enforce civil rights obligations.”