The Civil Rights Act is a strong law, advocates and former employees say; the EPA just needs to be less timid in its enforcement of it.
“[They] do technically have the ability to go seek out cases, but the office’s docket is largely determined by what complaints were filed, when,” said a former EPA employee with knowledge of the agency’s civil-rights office. The office rarely takes the initiative, the former employee said, to investigate what many experts consider non-controversial civil-rights claims — those alleging a lack of meaningful public participation, for instance — let alone politically sensitive topics, such as coal ash disposal.
One way to tackle that might be to keep track of Title VI complaints more closely as they come into the office. Even if individual complaints are denied, agency investigators could take a closer look at an agency or facility targeted by multiple claims. That would also require more widespread use of tools such as the EPA’s own EJSCREEN — which allows the agency to see demographic and environmental data for an area at a glance — and data collected by outside researchers and residents.
At minimum, outsiders say, the EPA should be talking about such things.
“Just take the risk,” said Garcia, vice president of litigation for healthy communities at Earthjustice, a nonprofit environmental law firm. If the EPA noticed that most permits were being issued in predominantly minority communities, they should be able to “issue a decision that says ‘that, to us, is a disparity, and so come to the table, let's talk about this.’ ”
Garcia wants the EPA to pursue alternatives to formal findings of discrimination — an approach more collaborative than punitive. But Title VI does come with a large hammer that the agency’s civil-rights office has yet to use — the power to strip federal funding. To force compliance with civil-rights law, the agency could withdraw funds and refuse to give future awards to those programs and activities that flout the law.
EPA officials must make it known that the agency’s enforcement of civil-rights law is not an empty threat, advocates say.
“Nobody is saying you would take that lightly,” said Miller-Travis, the NEJAC member and a veteran advocate for environmental-justice issues. “But if everybody knows you are never going to go there, then your civil rights program has absolutely no validity. None.”
Stabilize and bolster civil rights staff
Most agree that the EPA’s civil-rights office would benefit from an infusion of money, staff and specialized training. Given today’s political climate, which has brought deep cuts to the EPA’s annual budget (from $10.3 billion in 2010 to $8.1 billion in fiscal year 2015) as well as its staff (from 17,000 to 15,000 employees), that seems unlikely.
During fiscal year 2014, the civil-rights office had 37.6 full-time-equivalent employees — its lowest count in the past decade. Agency officials say the office expects to hire in the next fiscal year, beginning in October.
If that happens, it’s important to keep the number in context. Take, for example, the Education Department. It has a staff of 554 employees in its civil-rights office, but is asking for a budget increase to hire another 200 lawyers and investigators just to handle its caseload. Any new staffers in the EPA’s office will be charged with enforcing complaints of racial, sexual and disability discrimination filed by citizens, as well as complaints filed by agency employees. Some advocates suggest the EPA should reassign internal complaints to another office. At the least, they see as crucial a staff solely dedicated to adjudicating environmental-discrimination claims.
There are some promising signs.
Advocates and experts alike said the EPA helped stabilize and professionalize the civil-rights office in February 2014, when it hired the current director, Golightly-Howell. Prior to her arrival, the office had a revolving door of supervisors; it’s had four directors in the last three years alone. For much of this time, one or more of the office’s top three management posts has remained vacant. Constant leadership change and staff turnover have made it hard to push through reforms.
In an interview with the Center for Public Integrity and NBC News, Golightly-Howell said that over the next five years, she aims to make “significant strides towards … promptly, thoroughly and efficiently addressing each complaint [the civil-rights office] receives.” She promised to implement what she called a “well-established process for conducting compliance reviews,” and to reach out to those receiving EPA funding to educate them on their obligations under Title VI. She said her office will collaborate with other federal agencies’ civil-rights programs so it can better achieve its goals.
A final suggestion for Golightly-Howell from Brenman, the former civil-rights policy advisor: Draw up a wish list of resources and structural changes necessary for the civil-rights program to be effective and send it to administrator McCarthy.
“If the response she gets back is either silence or not getting the resources that she needs,” Brenman said, “then she’ll know that EPA, at its highest levels, is not taking these issues as seriously as they deserve.”