The U.S. Environmental Protection Agency has preliminarily ruled that the Missouri Department of Natural Resources is in violation of Title VI under the 1964 Civil Rights Act. Federal investigators found that the state agency failed to comply with several nondiscrimination requirements, such as ensuring that everyone — including those who aren’t proficient in English — can participate in public comment periods, not having a staff person for handling Title VI complaints, and lacking an official notice of nondiscrimination.
The ruling marks one of just a few times in the EPA’s 50-year history that the agency has made a finding of noncompliance in a Title VI complaint. In fact, 90 percent of civil rights complaints brought to the EPA aren’t even investigated, according to reporting from the Center for Public Integrity. But experts say the decision in Missouri, along with the EPA’s recent comments voicing civil rights concern over a metal scrapyard in Chicago, are indicative of the possible shift under the Biden administration toward prioritizing environmental justice.
“In the past, [the] EPA has never really seriously enforced its obligations under the Civil Rights Act,” said Wyatt Sassman, an environmental law expert at the University of Denver. “To the extent that the EPA’s taking its civil rights obligation, seriously,” he said, “that’s new, and it’s important.”
The EPA quietly released its preliminary findings in March from an investigation of the Missouri Department of Natural Resources, or DNR. The case stems from a Title VI complaint filed by the Great Rivers Environmental Law Center, based in St. Louis, after the state agency issued an extension of an operating permit for a fuel transport site run by the energy infrastructure company Kinder Morgan. Environmental and civil rights groups argue that the DNR’s permit didn’t take into account how emissions from the facility would disproportionately expose low-income communities of color in St. Louis to high levels of air pollution.
The Kinder Morgan facility sits on the banks of the Mississippi River, where it receives, transports, and stores fuel. The routine operating permit granted by the DNR sets limits for a number of air pollutants, including volatile organic compounds, particulate matter, sulfur oxides, nitrogen oxides, and carbon monoxide, as well as requires that Kinder Morgan monitor emissions from the site and self report if it violates those limits.
The area that would mostly be affected by these emissions is the Dutchtown community, which includes the neighborhoods of Dutchtown, Gravois Park, Mount Pleasant, and Marine Villa. Some 74 percent of residents in the community identify as people of color, and almost 20 percent speak a language other than English at home. The median household income in the area is $26,000, just half the Missouri state average of $54,000.
Residents in this part of St. Louis are already subjected to large amounts of pollution from 600 nearby sources, including power plants, industrial trade ports, hazardous waste sites, and heavy traffic. High levels of ozone and particulate matter released by neighboring industrial sites have been linked to increased risk of heart attacks, respiratory illness, and adverse birth outcomes. Members of the Dutchtown community have an elevated risk of developing cancer from exposure to toxic air pollutants compared to other parts of St. Louis County that are mostly white and higher income.
Bob Menees, a staff attorney at the Great Rivers Environmental Law Center, told Grist that the Title VI complaint was filed after the Kinder Morgan permit was granted, but the complaint was to address years of discriminatory permit approvals by the Missouri DNR.
In addition to examining any civil rights violations in permitting the Kinder Morgan facility, the EPA also examined the DNR’s internal operations. In their statement of findings released in March, the agency found that the Missouri DNR lacked a public statement of nondiscrimination, lacked a nondiscrimination staff coordinator, and didn’t provide adequate access to DNR programs, activities, and services for those with limited English proficiency or those with disabilities. The DNR, for example, didn’t provide sufficient opportunity for those with limited English proficiency to participate in the public comment period for the Kinder Morgan permit application, the EPA concluded.
Officials will next evaluate the Kinder Morgan site specifically, ruling on whether the DNR’s permit was discriminatory. While the investigation continues, the Missouri DNR must follow a number of steps from the EPA to address the violations. The state agency has until May 19 to comply before the EPA will send a final letter of noncompliance. If the DNR still doesn’t comply within 24 days after the final letter, an administrative process will be initiated to terminate continued financial assistance to the state environmental agency. The Missouri DNR told Grist it is unable to comment on pending matters.
Legal experts say the complaint against the Missouri DNR is just one of several Title VI cases that have been filed through the EPA recently. In Chicago, two environmental justice groups filed a complaint earlier this year after the state of Illinois issued a permit that allowed a scrapyard to move from a white and wealthy neighborhood to a predominantly low-income and Latino community on Chicago’s Southeast Side. Last summer, in Detroit, Michigan’s Department of Environment, Great Lakes, and Energy was sued after issuing a permit that allowed a hazardous waste facility expansion in a low-income community of color.
But the legal approach has only been successful two other times in the last 28 years. The first was in 2011. The EPA issued preliminary findings of discrimination following a decade-long investigation into a complaint in California that pesticides were being used more heavily near schools with high minority populations.
The most recent finding was in Michigan. The state’s environmental agency was sued in 1992 for granting a permit to the Genesee Power Plant outside of Flint, Michigan, an area that already had 200 polluting facilities. In 2017, the EPA finally issued their findings from the complaint — declaring that Michigan had not given residents a fair opportunity to participate in the permitting process.
It took 25 years for the EPA to reach a decision. The federal agency is supposed to issue its findings during an investigation within 180 days, but historically it hasn’t. Because of a steady track record of taking years to resolve complaints, several environmental groups sued the EPA in 2015. Last October, a federal judge ruled in favor of the environmental groups — the EPA was in violation of federal law, the judge said, and is legally bound to investigate within the designated 180-day timeline.
Because of that lawsuit, “the EPA has had kind of a fire put to their feet to make these decisions faster,” according to Menees of the Great Rivers Environmental Law Center. The EPA’s Office of Inspector General recently found that 81 percent of states don’t have the “required foundational elements on their websites” for Title VI. States also reported needing help in knowing how to address discrimination complaints. Three states said they had never received training from the EPA’s external civil rights office on how to address Title VI complaints.
These recent developments, combined with the Biden administration’s focus on environmental justice, could indicate a shift within the EPA, legal experts said. In February, EPA Administrator Michael Regan said he would make environmental justice a priority across the agency, including redesigning the office of civil rights that processes these Title VI complaints.
“The Biden-Harris administration is committed to making environmental justice a part of the mission of every federal agency,” an EPA spokesperson told Grist. “Administrator Regan has asked his leadership team to take immediate and affirmative steps to incorporate environmental justice considerations into all EPA work.”
More broadly, in March, the Environmental Justice for All Act was introduced into legislation by Democratic Representatives Raúl Grijalva of Arizona and A. Donald McEachin of Virginia. The legislation would amend Title VI to allow for private citizens to bring lawsuits directly to court for “disparate impact” causes of discrimination — decisions that are seemingly neutral or unintentional but have disproportionate negative impacts on people of color. Sassman, of the University of Denver, called the legislation a “game-changer” that provides a new tool for environmental justice communities to access the courts. “But it’s not a solution in itself,” he said. “It really takes these bigger institutional shifts to make sure that the government is filling these obligations to protect communities alongside the community’s ability to protect themselves.”
*Correction: An earlier version of this article misstated that the EPA investigation stemmed from a Title VI lawsuit. It is actually from a Title VI complaint.
This story was originally published by Grist with the headline The EPA just accused Missouri’s environmental agency of violating the Civil Rights Act on May 14, 2021.
This content originally appeared on Grist and was authored by Jena Brooker.