'Practically toothless': EPA accused of ignoring environmental racism

A worker looks toward the Dan River at the Duke Energy coal-fired power plant in Eden, North Carolina February 19, 2014. © Chris Keane
The US Environmental Protection Agency (EPA) Civil Rights office is “practically toothless,” and has failed to hold polluters responsible for disproportionately impacting low-income and minority communities, says the US Commission on Civil Rights.

The EPA's Office of Civil Rights has skirted its duty to investigate and enforce violations of federal law that prohibit recipients of federal funding from discriminatory acts, dismissing nine of every 10 complaints that have alleged environmental discrimination, the commission said in a report released Friday.

The office "has never made a formal finding of discrimination and has never denied or withdrawn financial assistance from a recipient in its entire history, and has no mandate to demand accountability with the EPA," the commission wrote in the 230-page report that was sent to the White House and to top members of Congress.

"The EPA has a history of being unable to meet its regulatory deadlines and experiences extreme delays in responding to Title VI complaints in the area of environmental justice," the commission said.

For example, from December 2015 to July 2016, the EPA Office of Civil Rights received 25 complaints of environmental damage disproportionately impacting racial minorities and low-income communities. The majority (14) of those complaints were dismissed over an alleged lack of jurisdiction, two were withdrawn, and two were closed based on a lack of evidence.

In addition, the office had 32 cases pending jurisdictional review as of June, a backlog that indicates "the Office of Civil Rights is not fulfilling its mission to become 'a model civil rights' program,'" the commission wrote.

"Environmental justice is an issue that, one would think, we would have made much more progress on since this has been around for more than a generation," Commissioner Michael Yaki said Friday, according to the Center for Public Integrity.

"Much ado was made about EPA putting into effect an environmental justice component into what it did," Yaki added."If anything, this report shows that, as it applies to EPA – which has done many great things over the years – in this particular instance, it has fallen very short. One can say it is practically toothless in its ability to protect the poorest and minority populations of our country from things such as coal ash."

The report emphasizes in particular the effects of coal ash facilities on low-income and minority populations. Coal ash waste consists of a number of known "hazardous substances" such as mercury and lead produced by the burning of coal and stored at coal ash disposal sites, such as the Duke Energy site that was the source of 39,000 tons of coal ash spilled into a North Carolina riverway in 2014.

The office's impotence was exhibited by its inaction in the face of the EPA's recent, loophole-ridden Final Coal Ash Rule, the commission wrote.

"The EPA's Final Coal Ash Rule negatively impacts low-income and communities of color disproportionately, and places enforcement of the Rule back on the shoulders of the community.  This system requires low-income and communities of color to collect complex data, fund litigation and navigate the federal court system – the very communities that the environmental justice principles were designed to protect."

In one instance, following a coal ash spill in Kingston, Tennessee, the EPA ultimately allowed waste to be dumped in Uniontown, Alabama, a mostly black community. The decision was "made for economic reasons," the commission wrote.

The EPA told the Center for Public Integrity that the commission's report included "factual inaccuracies, material omissions, mischaracterizations [of] EPA findings, and conclusions not supported by evidence; as well as fundamental misunderstandings about EPA legal obligations and regulatory authorities across a number of the Agency’s programs…"

The "EPA has a robust and successful national program to protect minority and low-income communities from pollution," Mustafa Ali, senior advisor for environmental justice to EPA Administrator Gina McCarthy, said.

The commission recommended that the EPA should increase staffing at the Office of Civil Rights and classify coal as as "special waste," in addition to increasing testing of coal ash lagoons, dams, and disposal sites while funding research of coal ash health impacts.

"When we look at this issue, it is one of urgency," Commission Chairman Martin R. Castro said Friday. "It affects individuals’ daily lives. It affects our ability and the community’s ability to enjoy and value and really exercise many of the other civil rights."