Jan. 5, 2016: This story has been corrected.
In December 1997, a company called Select Steel moved to enter the then-bustling economy of Flint, Michigan.
It applied for an air permit with the Michigan Department of Environmental Quality, seeking to build a “mini-mill” abutting the city’s northern edge that would melt and recast scrap metal. The mill would send up to 100 tons of lead per year, as well as particulate matter, nitrogen oxide and other pollutants into the atmosphere.
Residents of the area already were dealing with pollution from the wood-burning Genesee Power Station. Nonetheless, in May 1998, state regulators approved Select Steel’s permit.
“This was just more unethical pouring of stuff into the North End,” said Father Philip Schmitter, pastor at Christ the King Catholic Church in Flint.
As it turned out, the Select Steel mill was never built. But the threat of its existence prompted angry residents to file a complaint against the state with the U.S. Environmental Protection Agency’s Office of Civil Rights. The case led to the office’s first formal decision and set it on a course that many believe is misguided.
Because of Select Steel, the office to this day relies heavily on science — too heavily, critics say — to investigate alleged violations of Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by recipients of federal funding such as states and cities.
The prospect of a new pollution source is not enough to show a discriminatory impact on a community, the EPA has decided. Instead, it parses data to see whether emission levels will rise above legal limits set by the agency to prevent harm to the environment and human health.
The Select Steel case “casts a shadow on civil-rights enforcement,” said Marianne Engelman Lado, of the public-interest law firm Earthjustice. “It raises significant questions about EPA’s backbone and willingness to enforce the civil-rights statute.”
In a statement to the Center for Public Integrity, EPA officials defended their approach.
“In accordance with case law and [Department of Justice] guidance, all federal agencies, including the EPA, must determine whether there is sufficient harm for a disparate impact complaint to be actionable,” the statement said.
A Center investigation in August found that the Office of Civil Rights has routinely failed to enforce Title VI. The office has dismissed nine out of every 10 community claims alleging environmental discrimination, the Center found, and has never once issued a formal finding of a Title VI violation.
EPA officials say they have begun the work of turning the office around. They have announced plans to do more frequent compliance reviews and publish an annual report to chart the office’s progress. This month they issued a notice of proposed rulemaking removing certain deadlines and put out a case manual for investigators examining civil-rights claims.