EPA promised to address environmental racism. Then states pushed back.

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FLINT, Mich. — Civil rights law offers a tool for communities of color trying to stop unequal exposure to pollution. Over and over, people here have tried to make it work.

From 1992 to 2015, residents and community groups filed a series of federal complaints asking the U.S. Environmental Protection Agency to intervene over pollution affecting majority Black neighborhoods, from a power plant to the city’s infamous lead-water crisis. Each time, they got little or nothing from the office charged with ensuring state environmental permitting agencies and other recipients of federal funding don’t discriminate.

But in 2021, faced with plans for another polluting facility — an asphalt plant bordering Flint’s northern edge — residents and advocates turned again to the complaint process. This time they had more reason to hope. President Joe Biden promised to make environmental justice a priority government-wide. EPA hired a prominent critic of its weak civil-rights enforcement as it reorganized to do better. 

“I just felt like we were on the brink of something great,” said Mona Munroe-Younis, executive director of the Environmental Transformation Movement of Flint, one of the groups that filed the most recent complaint.

She paused in a conversation this summer, thinking of what had happened. “And then it’s just — gone.” 

For decades, EPA has effectively failed to enforce Title VI of the Civil Rights Act of 1964, designed to protect people of color and immigrants from discrimination by federally funded programs. The Biden EPA’s vow to use the “full extent of its authority” brought a rush of filings from groups and individuals hoping they would finally get help. 

Discriminatory exposure to environmental ills is so common in the United States that rectifying it won’t be easy, let alone in an era where the Supreme Court is rolling back equal-rights protections. Republican opposition was a given. And state agencies in red and blue regions alike routinely sign off on permits that allow yet more pollution in largely Black, Latino and Indigenous communities already overburdened with it, an entrenched status quo.

Amid the rising backlash, the Biden administration is failing to use the full force of its regulatory powers to hold states accountable. 

That’s the conclusion of a new Center for Public Integrity investigation, which relies on interviews with dozens of Title VI complainants, lawyers and former federal officials, along with a review of a quarter-century of complaints. It follows a 2015 Public Integrity investigation that prompted promises of reforms. 

In Flint, the agreement EPA ultimately struck with Michigan’s environmental-protection agency in August requires no substantive changes to how the state issues permits. Residents had asked that the state give serious consideration to the pollution they’re already exposed to when deciding whether to allow more.

Instead, the Michigan Department of Environment, Great Lakes, and Energy committed to doing outreach, providing more information, updating air-permitting documents to explain how it would “address consideration of environmental justice,” conducting a community environmental health assessment if funds allow and providing one low-cost air sensor in the area — so residents have slightly more insight into the toxic substances they’re forced to breathe.

In Louisiana’s polluted “Cancer Alley,” meanwhile, EPA abruptly closed complaints against two state agencies in June, dropping negotiations on a resolution agreement designed to reform how industrial facilities there get permitted. That move came a few weeks after the state’s Republican attorney general filed a lawsuit claiming the federal government was exceeding its Title VI authority.

It’s part of a conservative effort to upend decades-old federal policy by redefining what counts as discrimination: Decisions by federal funding recipients that systematically harm people of color would be fine, as long as there was no explicitly racist intent behind it. That would pose an existential threat to environmental justice cases because it’s often seemingly neutral decisions that result in pollution disparities by race.

Environmental lawyers believe that fears of the Supreme Court taking up the matter and decimating Title VI made EPA do an about-face in recent months.

In an Oct. 16 letter to EPA and the U.S. Department of Justice, more than 60 individuals and groups expressed “deep dismay” over that. Civil-rights enforcement will always be met with resistance, they wrote. The federal agencies, they said, must take “decisive action to defend and enforce Title VI.”

“This is the moment to do it because everything’s at stake,” Debbie Chizewer, a managing attorney at public interest legal nonprofit Earthjustice, said in an interview after signing the letter. “There are … communities who have been fighting for decades for EPA to take Title VI seriously. And we saw some promising action and we want EPA to stick to it.”

EPA has always rejected the lion’s share of Title VI complaints it receives, citing procedural reasons. But the Biden EPA has accepted more for investigation per month than any other administration dating back to at least fall 1996, the earliest complaint files the agency provided Public Integrity. 

As of mid-October, the agency was negotiating informal resolution agreements to settle 20 of these complaints. To put that into context: EPA records show it resolved just 35 Title VI complaints with various types of agreements in the period between enacting its civil-rights policy and Biden’s inauguration — a span of nearly five decades. 

These agreements get commitments from state or local agencies to make changes. But what really matters, as Flint residents know, is what those changes are.

The EPA under Biden has completed only four agreements as of mid-October, over complaints about a contaminated shipyard in California, lack of accessibility in West Virginia water quality notices, a fuel-loading facility in St. Louis — that case remained open because additional negotiation was underway — and the Flint matter. 

None addresses the fundamental issue for communities bearing the brunt of pollution: specific commitments to reduce that burden.

The agreements aren’t markedly different, in fact, from those written by the Trump administration — which was actively hostile to environmental rules and civil-rights enforcement. The Trump EPA, pressed by a court decision to take more timely action on Title VI complaints, completed negotiations on 15 agreements.

In response to questions from Public Integrity, EPA said in a statement that it’s “moving urgently” to advance environmental justice and ensure clean air and water for everyone. In an interview, a leader in the office overseeing Title VI complaints said EPA is in negotiations now with states to address the pollution burdens on communities facing disparities.

“Our commitment to that as an agency is still unwavering,” said Lilian Sotolongo Dorka, deputy assistant administrator for external civil rights in the EPA’s Office of Environmental Justice and External Civil Rights. 

It’s not just through its handling of Title VI complaints that EPA is working to address environmental disparities, she added. Its programs and regional offices have also picked up that mantle.

“We understand the communities that are hurting, … that they want action,” Dorka added. “And also it’s our view that … no one action really will serve to address all of the burdens that communities are facing. So we really feel very strongly about an all-of-EPA approach.”

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So do environmental justice advocates. The Oct. 16 letter to EPA and DOJ, the agency charged with coordinating civil-rights enforcement across the federal government, calls for a number of additional actions beyond Title VI. Among them: better air monitoring, more robust enforcement of environmental laws and stronger regulations to protect health.

The stakes are high. Unequal exposure to pollution keeps cutting people’s lives short.

“We’re having funerals every week in St. James,” said Shamyra Lavigne, who is active with an  environmental justice group that has filed Title VI complaints over pollution in Louisiana’s St. James Parish. “We already know this is racism. We already know it’s environmental violence. We already know these things. I need a real solution. I need this to stop. I need something to happen. That’s what I need.”

Civil rights on paper only

In the U.S., getting civil-rights laws passed has never been the end of the battle. Voting, education, housing, banking, healthcare, fair employment — achieving even partial equality took advocacy and federal enforcement as white elected officials and business owners resisted.

It’s this enforcement that communities facing environmental racism have long needed and too rarely received. 

Multiple studies have shown that communities of color and low-income residents bear the brunt of health-harming pollution in the United States, a problem further aggravated by the climate crisis.

This exposure has multiple causes. Once-legal discrimination. Racial wealth gaps caused by that history. The pernicious way that modern-day zoning and permitting by local and state agencies around the country reinforce historical patterns.

The landmark Civil Rights Act offers a way out: Federal agencies can withhold funding from recipients who discriminate. Federal policy, including EPA’s, defines Title VI discrimination not only as intentional acts but also disparate impacts stemming from decisions made without racist intent.

Many agencies that issue permits receive EPA money. Never in its history, though, has EPA yanked federal funding for this type of violation.

Public Integrity’s 2015 investigation showed in stark terms how ineffectively the agency carried out its civil-rights responsibilities. Of the 240 administrative complaints filed by individuals or groups from late 1996 through 2013 and closed by EPA, roughly 90% were either rejected without an investigation or dismissed after one. 

Many petitions languished for years. Among those still waiting for a resolution at the time: a Flint complaint filed 23 years earlier.

A month after the Public Integrity investigation, EPA promised to move more aggressively on Title VI. A 2016 U.S. Commission on Civil Rights report echoed the investigation, noting that the EPA office handling the complaints had “never made a formal finding of discrimination” and has “no mandate to demand accountability within the EPA.”

Residents and advocates had long pressed for change. Now they had additional ammunition. A 2018 federal court ruling offered yet more, finding that EPA’s Title VI delays violated the law. And then came the 2020 election and the Biden administration’s pledge to take this authority seriously. The agency sought input from communities in a series of engagement calls. 

“I’m begging for help here,” LeVonne Stone, who lives near a contaminated Army base in central California, said in one of those 2021 meetings. “I am praying that there is somebody on this line, somebody in the EPA or the White House or somewhere, that is really listening and really going to do something about what has happened.” 

EPA’s Dorka said in another engagement meeting that change was on the way. “The civil rights laws do carry a priority here at EPA, and thank goodness, right? We’ve been waiting for this time,” she said. “We need to really revamp and reinvigorate this work, this Title VI work.” 

Complaints arrived from around the country, people asking for help with the state or local decisions they blamed for pollution and other environmental ills in communities of color. The water crisis in Jackson, Mississippi. A metal shredder that sparked hunger strikes on Chicago’s South Side. A gas pipeline cutting through Brooklyn, New York.

EPA has made some important changes to its Title VI program in the last few years, environmental justice lawyers say. Staff there created an online civil rights docket in 2022 so the public could track that work. In a write-up that year aimed at state and local permitting, it told agencies that complying with environmental laws was not a defense for violating civil-rights requirements — batting back a common excuse. EPA also began including complainants in its resolution negotiations, though not in all cases. 

This year it told recipients of its funding to show that they comply with the basic elements of civil-rights law, striking agreements with more than 100 grantees to cure deficiencies. And after decades of treating Title VI as an afterthought, EPA said in its strategic plan that it was making a “bold and unprecedented” commitment to address civil rights across the agency.

Public Integrity’s analysis, meanwhile, shows the Biden administration is moving faster on complaints, even as some resolution negotiations drag on. The average time to closure is eight months now, half as long as it was during the Trump administration.

And Louisiana’s lawsuit includes details that suggest EPA is, in fact, attempting to push states to make more changes to how they operate so they consider civil rights from the outset.

“In informally resolving a number of these types of cases, we are helping folks put into place a framework, a Title VI disparate impact, identify and address-type of framework,” the suit quotes Dorka as saying in a meeting with the state agencies. 

That’s a foundation for environmental justice work. But a foundation doesn’t guarantee results, especially if states aren’t inclined to cooperate. 

“Advocates have been waiting a long time to see EPA make findings of discrimination on the substantive issues of how pollution is distributed in this country and how it overburdens Black, Indigenous and other communities of color,” said Amy Laura Cahn, an environmental and climate justice lawyer active with the Title VI Alliance, a coalition focused on civil rights protections in federal environmental decision making. “We need to see EPA use its full authority to delay or withdraw federal funding when warranted.”

The Civil Rights Act dictates that federal agencies must try to secure cooperation from funding recipients before moving to withdraw money. EPA says it’s never needed to halt funding because it has secured that voluntary compliance. 

But Louisiana, where EPA called for consideration of civil rights in air permitting decisions, didn’t voluntarily comply. It sued, and EPA dropped the matter rather than completing the steps needed to pull funds.

Among the reasons EPA cites for closing the Louisiana matters: One of the complaints raises issues that are also being litigated in a state court case, and EPA is taking other actions to protect health in the area, unrelated to that litigation. Those include suing a Louisiana chemical plant in federal court to reduce emissions that likely cause cancer, planning an exposure assessment in the surrounding community and proposing a rule to “significantly reduce emissions of toxic and other harmful air pollutants” from chemical plants nationwide. 

Sharon Lavigne, whose organization Rise St. James filed one of those now-closed complaints, said EPA officials offered a different explanation to her. “They told me that they had to protect the Title VI program,” Lavigne said. They promised to come discuss it with St. James residents, she added.

She is still waiting. In the meantime, she is pushing for a more comprehensive remedy in an ongoing lawsuit: a moratorium on new fossil fuel infrastructure in the parish. 

EPA said in an emailed response that it has had numerous conversations with Rise St. James and other community organizations in that region in the last several months and “remains fully committed to improving environmental conditions” in the Louisiana communities where the complaints were filed.

Brandi Crawford was equally disappointed by the way her Title VI petition ended this year. She said she’s been trying every avenue she knows of to get regulatory action reducing pollution from a paper mill in Kalamazoo, Michigan, in a predominantly Black part of town. Calls, emails, hiring a toxicologist to produce a report about emissions, pressing for a health study. As soon as she learned about Title VI, she filed a complaint.

That was September 2021. She said EPA told her an agreement was in the works, then that it was completed. In June — nearly two years after the process began, with the agreement still not released — Crawford and others filed a class-action lawsuit against multiple parties, including officials with EPA and Michigan’s environmental-protection agency.

On Sept. 29, EPA said it has the option to close a Title VI complaint when the matter ends up in litigation, and it was choosing to do so — without finalizing the agreement.

“Why is everything an informal resolution process?” asked Crawford, who is white. She moved out of Kalamazoo to protect her family’s health and worries about the residents who can’t afford to leave. “Why do you have to negotiate with an agency you fund? … Stop funding them. They’re killing people.”

An oasis turned ‘sacrifice zone’

Erma Barnes was hunting for a home. Buying would not be easy.

It was the height of the 1960s civil rights movement, and Flint — like communities nationwide — offered very few neighborhoods where Black residents were both welcome and could afford to live. Housing discrimination and racial violence were ever-present threats. And when Barnes, who is Black, sought a mortgage from a bank, staff there turned her down.

But she secured a loan through a federal program and zeroed in on a safe place: a predominantly Black, working-class neighborhood just north of Flint in the neighboring and otherwise largely white Genesee Township. Residents kept their yards tidy. After winter storms, neighbors would deliver food and help clear snow. Families packed community meetings at the nearby elementary school. 

It was just about perfect. In 1968, Barnes bought a three-bedroom house there for her family of five.

“As a single mom, when you have children, you want them to have some stability and you want them to have a place to come home that they can feel safe, and I did feel safe in the neighborhood,” said Barnes, now 79, who worked as an adult protective services worker, then later as a substitute teacher.  

The neighborhood abutted a wooded area and was quiet, aside from the chirps of robins, sparrows and blackbirds. Barnes would often spot deer, wild turkeys and rabbits on her walks throughout the neighborhood.    

A decade later, Genesee Township built an industrial park less than half a mile from her house. 

The site that officials picked was in a census tract where nearly all the township’s Black residents lived. That decision, along with state permits issued to facilities there over the years, brought an influx of industrial businesses like scrap yards, paving companies and rubber recycling facilities to Barnes’ backyard, including the asphalt plant and one of the other operations that became the subject of Title VI complaints.

The industrial park, and a Michigan State Highway Department decision to put Interstate 475 through Black communities in and around Flint in the 1970s, turned Barnes’ neighborhood from a haven to a place people wanted to escape.

“That’s what started the decline of the neighborhood,” said Barnes, who lives about 1,500 feet from the highway. “It tore up the community.”

As more polluting facilities opened, truck traffic on I-475 and nearby Dort Highway increased — bringing its own pollution. A company expanded the nearby railroad tracks and built a terminal station just beyond Barnes’ backyard. Exhaust fumes from idling trains, screeching brakes, blaring horns and earth-shaking booms became a daily ordeal.  

Interstate 475, meanwhile, divided neighbors from the retail businesses they could previously walk to. Residents, some of them laid off by downsizing automakers, moved away and abandoned homes they couldn’t sell. 

Residents in the city of Flint just south of the area have also suffered. The River Park apartments, a public housing complex filled with families in a predominantly Black neighborhood, was built a decade before construction began on the industrial park. Today the apartment complex sits about 1,500 feet from the new asphalt plant there.

The chemicals and heavy metals emitted by the types of businesses in and around that park over the decades can harm the lungs, heart, brain and kidneys.

Lead, for instance: People here knew its dangers long before Flint’s water crisis began in 2014 because the toxic metal was among the poisons that companies pumped into the air with permission from regulators. That type of pollution filters into the soil, where it’s kicked up and inhaled. By the mid-1990s, roughly half of young children in Flint had elevated levels of lead in their blood; the majority of reported cases were in North Flint and in Black neighborhoods. 

No amount of lead is safe. Childhood exposure harms the capacity to learn, focus and control impulses — basic building blocks for a successful life.

“There’s a reason why they call communities like Flint ‘sacrifice zones,’” said Nayyirah Shariff, the director of Flint Rising, a coalition of residents, community groups and allies.

Nicole Weaver, 42, has spent most of her life living in the shadow of the industrial park in a Flint neighborhood of small single-family homes near the River Park apartments. She grew up near more than 227 documented pollution sources, including plants treating, disposing and storing hazardous waste, according to a later legal review by civil rights attorney Kary L. Moss. The power plant incinerator, the subject of the 1992 Title VI complaint, opened when she was a child across the street from her elementary school.

Black and white neighbors joined forces to try to convince the state’s environmental protection agency to reject the plant, the state’s first wood-fired boiler to tap construction and demolition wood as fuel. Weaver, who is white, went door-to-door with her mother, gathering signatures from residents opposed to the proposal.

“We tried our best,” she said, “but it wasn’t good enough.”

Three generations of women in Weaver’s family have suffered from respiratory issues they connect to the pollution that local and state officials allowed. By the time Weaver was 13, she needed a nebulizer three times a day. 

Genesee Township declined to comment for this story. Michigan’s Department of Environment, Great Lakes, and Energy said in a statement issued alongside its agreement with EPA that it was confident it already fully complied with civil rights requirements but wanted to “memorialize our ongoing commitment to environmental justice.”

“We realize the agreement does not address all the issues raised by the local residents during our discussions,” the agency added. “We remain committed to continuing to work with the community to address ongoing concerns.”

Barnes, the Genesee Township homeowner, has called on township officials, code enforcement, the county commission and other staff to address the pollution and noise, but the problems remain. The state, meanwhile, kept approving more permits. 

“They just leave us to fight for ourselves,” she said.

That’s why federal intervention felt so necessary to people here. You can trace the arc of EPA’s Title VI history through Flint residents’ efforts to get help.

Pressing for environmental justice

In 1992, the St. Francis Prayer Center in Flint filed a complaint with EPA over the state’s permitting of the power plant. When the facility opened in 1995, the petition was still pending.

While the community awaited a response, the prayer center filed another complaint in 1998 over a state permit for a proposed steel recycling mill. Several months later, EPA made what it called its “first substantive decision under Title VI of the Civil Rights Act” — 28 years after the agency’s founding. It was a dismissal. The agency said it found no violations in the state’s handling of the mill permit. 

A 2001 complaint about a state permit for a scrap-metal shredder in Flint ended in closure five years afterward because EPA was satisfied the operation wouldn’t be allowed to shred devices containing mercury. (That toxic substance wasn’t the community’s only concern. Metal shredders emit a variety of health-harming air pollutants, as EPA warned in a 2021 alert.)

Complaints about the city’s lead-contaminated water, triggered when a state-appointed emergency manager switched the city’s supply in 2014 to save money, also took five years to resolve. The resulting agreements with the city, county and Michigan’s environmental protection agency required basic Title VI procedures, such as creating an access plan for people with limited English proficiency and publicizing a grievance process for nondiscrimination complaints. 

And the original petition from 1992? EPA acted 24 years later. The decision on the final full day of the Obama administration was a rare finding of discrimination — but only about the way public participation was impeded, not the state’s pattern of permitting pollution.

It changed nothing about the power plant the community had hoped to stop, which is still operating. Nor did the decision create any requirement for the state’s environmental protection agency to approach permitting differently in the future. “It was kind of a hollow victory,” said Father Philip Schmitter, a sacramental minister at the St. Francis Prayer Center.

“Perhaps conditions in Flint would have been different if at any point since the early 1990s, [EPA’s civil rights office] sent a clear message to [the Michigan agency] that unless it came into compliance with Title VI, EPA was going to withhold federal funds,” attorney Marianne Engelman-Lado, then of Yale University, wrote in a law review piece in 2017. “Unfortunately, the Supreme Court relegated Title VI enforcement largely to federal agencies, and EPA abdicated its responsibility.”

Today, this critic of EPA’s process is on the inside. Engelman-Lado joined EPA in February 2021, one of the Biden administration hires brought in to turn environmental justice efforts around. She helped lead the agency’s Office of Environmental Justice and External Civil Rights when it opened the following year and is now EPA’s deputy general counsel for environmental initiatives.

In an October interview, she said the agency has made progress on civil-rights enforcement — there’s just a lot more to do. The environmental sector had never developed a culture of addressing civil rights, she said.

“It’s like turning around an ocean liner … to change expectations and make that cultural shift,” she said.

In a 2020 interview before she came to EPA, Engelman-Lado said that reducing environmental disparities “means changing the way we do environmental decision-making. Where we place things, and who has a say and whether we listen to communities.”

Asked about that now, she said the commitments in newer resolution agreements increase the public’s ability to participate in these decisions. Language access, such as interpreters at meetings, and more effective outreach can lead to changes in outcomes, she said.

Still, those basic revisions pale in comparison to a Title VI agreement that environmental justice advocates, including Engelman-Lado, negotiated directly with North Carolina’s environmental protection agency in 2018. In that case, the state committed to proposing more stringent permitting rules about swine waste, with a public review process the parties agreed on, as well as other specifics, such as air and water monitoring.

Permitting reforms are exactly what the organizations that filed the most recent Flint complaint wanted statewide. The groups, represented by attorneys from Earthjustice and the Great Lakes Environmental Law Center, asked Michigan to substantively assess the cumulative health impacts of pollution in overburdened communities before granting additional industrial permits.

The “watered-down” agreement the state and EPA ultimately signed disregarded months of work at the negotiating table, the groups said in a joint statement.

The Michigan Department of Environment, Great Lakes, and Energy said by email that it believes its permit for the new asphalt plant is protective of public health and accounts for cumulative impacts to the extent that the federal Clean Air Act authorizes that. State law would need to be changed for the agency to “more directly consider environmental justice, equity, and civil rights principles” in its air permitting, it added. It said it was working with legislators on that.

It’s common for agencies to say that state law ties their hands, according to environmental lawyers — no matter what federal civil-rights law dictates.  

Engelman-Lado, recused from the Flint and Louisiana matters because of her prior work, said EPA employees are very aware that their efforts to strengthen civil-rights enforcement will be “judged by the change that’s made on the ground.”

“And there’s tremendous need for change on the ground,” she added. “We know that the location of facilities and exposure to pollution is associated with race and national origin, among other things, in this country. And we’re all charged, not just us, but states and localities, in finding ways to address that.”

Redefining discrimination

Along an 85-mile stretch of the Mississippi River between Baton Rouge and New Orleans, more than 200 petrochemical and other industrial plants tower over homes, churches and schools in rural, largely Black communities. The state keeps permitting more. Groups in two parishes here petitioned EPA in early 2022 to step in.

The initial response looked promising to the complainants: That October, EPA issued a letter of concern over likely racial discrimination.

But as EPA attempted to reach a resolution with two state agencies, the process unraveled. Jeff Landry, the state’s attorney general and now governor-elect, intervened in the negotiations — hiring lawyers who were also representing Formosa Plastics, the company whose state permits to build in St. James Parish was the subject of one of the complaints. The state’s environmental protection agency insisted it didn’t have the authority to address civil-rights concerns in permitting.

Then Landry, who did not respond to questions seeking comment for this story, sued EPA in May to stop the process outright.

“Title VI ‘prohibits only intentional discrimination,’” his lawsuit says, quoting a 2001 Supreme Court decision. “EPA is relying on a ‘disparate impact’ theory to expand its authority far past enforcement of actual environmental standards into imposing its amorphous vision of ‘justice’ upon the American public.”

Disparate impact was actually advanced by the Supreme Court in 1971, appeared in EPA’s Title VI regulation in 1973 and has been widespread federal policy for decades. As a result, just because government officials aren’t explicitly declaring an intent to discriminate doesn’t mean there isn’t a violation. Getting an unequal share of government services or burdens based on race, color or national origin is discriminatory, the Department of Justice’s Title VI legal manual states.

“As the Supreme Court has explained, even benignly-motivated policies that appear neutral on their face may be traceable to the nation’s long history of invidious race discrimination in employment, education, housing, and many other areas,” the agency notes in that document.

Legislators from both parties at the time the 1960s civil-rights laws were passed referred to “discrimination” in this way in addition to intentionally discriminatory policies, said Hannah Perls, a senior staff attorney with Harvard Law School’s Environmental & Energy Law Program.

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And here’s the thing: The Supreme Court’s 5-4 ruling cited by Landry does block individuals from filing Title VI lawsuits over disparate impact. But the ruling made a point of not taking away the federal government’s right to enforce its disparate impact policies, echoing decisions from the 1980s.

This matters because disparate impact is at the heart of environmental justice cases. And even with that form of discrimination recognized by the government, Title VI is a narrow path. If you file a complaint to EPA but the agency doesn’t fund the entity you think is responsible for disparate impacts, it’s denied. If your complaint comes in later than 180 days after the last allegedly discriminatory action — very likely denied. Most Title VI complaints to the agency, often brought by residents rather than lawyers, never jump these hurdles.

If the disparate impact standard disappears, that would pose the biggest hurdle yet to enforcing Title VI protections.

“It would be a sea change in the availability of civil rights in the U.S.,” said Cahn, the environmental justice lawyer.

The Trump administration tried to get that ball rolling with a rewrite of the Justice Department policy, The Washington Post reported. But officials failed to take the final step of publishing it before the Biden administration took office.

More attempts are looming. A government-wide policy agenda by conservative groups, aimed at whichever Republican candidate for president takes the 2024 nomination, calls for that person to disband the new Office of Environmental Justice and External Civil Rights, as well as “pause and review all ongoing EJ [environmental justice] and Title VI actions.” 

The blueprint doesn’t argue that the Supreme Court blocked disparate impact enforcement in 2001. Instead, it points to the then-pending Supreme Court case over affirmative action in higher education — in part a Title VI matter — as a reason to clamp down on efforts to consider race in environmental decisions. 

This echoes what the Federalist Society — the billionaire-funded organization credited with being an architect of today’s conservative Supreme Court — recently promoted in a webinar on Louisiana’s lawsuit against the EPA. “The Supreme Court and the [Biden] administration are just on very, very different paths,” Drew Ensign, Louisiana’s counsel in the lawsuit, said during the event.

David Ludder, a lawyer in Alabama who has filed multiple Title VI complaints, figures the EPA abruptly dropped the Louisiana negotiations because it doesn’t want to risk this particular Supreme Court weighing in on Landry’s lawsuit. But the case hasn’t gone away. A hearing is set for January on the EPA’s motion to dismiss the case, as well as the state’s motion for the judge to rule in its favor.

“The decision made by the [Biden] administration to close the complaints sends a message that the assault on civil rights is working,” Cahn said. “And that [when] EPA or other agencies try to enforce Title VI funding, recipients can sue and the Biden administration will back down. That’s not a message consistent with the Biden administration’s stated commitment to environmental justice.”

Lack of enforcement has ripple effects. Beyond the impacts to health, it feeds into America’s racial wealth gap. 

The home just north of Flint that Barnes bought in 1968 cost $19,000, the equivalent of roughly $168,000 in today’s money. It’s worth much less now, an estimated $15,000.

That’s only part of her financial loss. She figures she spent $160,000 paying off the loan and improving her home over the decades: new windows, a repaved driveway, kitchen and bathroom updates and two roof replacements.

Homes are a key part of many Americans’ ability to build generational wealth. Barnes had hoped hers would rise in value for her children and grandchildren’s sake. Instead, it’s worth so little that she’s effectively trapped there, unable to make enough from a sale to move away from the pollution and noise. 

“It’s been harmful to her health. It’s been generationally harmful to her family,” said Katherine Walz with the National Housing Law Project. “And then it’s destroyed them economically.”

In 2021, the National Housing Law Project, Earthjustice and the Great Lakes Environmental Law Center filed a Title VI complaint about the township on behalf of local groups and residents. This one went to HUD, not EPA.

As of mid-October, they were still waiting for a decision.

Waiting to see if the promises about environmental justice mean anything in practice.