Abstract

Excerpted From: Tseming Yang, Old and New Environmental Racism, 2024 Utah Law Review 109 (2024) (236 Footnotes) (Full Document)

Raw sewage and fecal matter accumulating in backyards, sometimes backing up into homes, public health emergencies due to lead-contaminated drinking water, chemical and toxic waste-contaminated flood waters endangering residents after natural disasters, and air pollution emergencies that send thousands to local hospitals for respiratory distress are conditions that one might imagine in the poorest countries of the developing world or in an America from a century ago. Yet they are regularly encountered by people of color and other marginalized communities around the United States.

The disparate environmental conditions of minority communities and other marginalized populations have proven to be among the toughest, if not the toughest, long-standing environmental regulatory problem to vex the Environmental Protection Agency (“EPA” or “Agency”). Starting with the EPA's creation of the Office of Environmental Equity in 1991, the federal agency has supported a number of policies and initiatives addressing serious disparities in pollution conditions and environmental quality across communities. From the beginning, however, the EPA chose to ignore the embedded nature of racial biases in the regulatory system and approached these issues from a color-blind perspective. Unfortunately, ignoring race as a salient characteristic of environmental disparities has seriously hampered effective responses. For decades, it blinded the Agency to the continuing significance of race, especially as then-Reverend Benjamin Chavis described it when he coined the phrase “environmental racism.” For Chavis, environmental racism described not only the discriminatory targeting of communities of color with pollution and toxics, but also the failure of government officials to act on such racial disparities. In his words, environmental racism was the product of “racial discrimination in environmental policymaking[,] enforcement of regulations and laws[,] the deliberate targeting of communities of color for toxic waste disposal and the siting of polluting industries[, and] the history of excluding people of color from the mainstream environmental groups ... and regulatory bodies.” In fact, the continued pervasiveness of racial disparities even decades later has prompted at least one media commentator to call environmental racism another version of “The New Jim Crow.”

Over the decades, the EPA's reluctance to seriously grapple with racial discrimination issues has created blind spots in its programmatic work on environmental discrimination issues. Even if pollution itself does not discriminate on the basis of race, it has become clear that its effects do. Pollution exposure and other environmental risks are well known to compound and worsen pre-existing health risks and socio-economic disparities, disproportionately burdening communities of color. Ignoring that reality comes at the peril to those who most need the protections of the EPA's regulatory mission.

These blind spots have been especially obvious in the Agency's implementation of its responsibilities under Title VI of the Civil Rights Act. Title VI prohibits racial discrimination by recipients of federal funding. Its ability to reach most state environmental regulatory programs and its prohibitions of practices with discriminatory effects via the implementing regulations have given it outsized importance for efforts to achieve environmental justice. Yet for decades, the Agency's Title VI program has been ineffective and dysfunctional. In almost three decades of operation and after receiving more than 400 Title VI complaints filed by community groups and individuals, the EPA has made several preliminary (prima facie) findings of violations of Title VI. It has never made a final (conclusive) determination of discrimination. Looking at these numbers, a reasonable observer might be led to believe that environmental racism and discrimination do not exist in the United States.

It is important to acknowledge that the current administration has taken promising and substantial steps on environmental justice issues generally and civil rights enforcement specifically that overlap with some of the proposals of this Article. In fact, President Biden's steps to elevate racial equity concerns and environmental justice across federal agencies as well as the EPA's related efforts have signaled a significant policy shift from the prior administration and evidence of learning from past missteps.

While such initial progress and promising steps have reinvigorated attention to the Agency's longstanding challenges, there are reasons to remain concerned. First, future presidential administrations may be less sympathetic and could seek to reverse many of the newly instituted policies. And even if future administrations “merely” abandon promising policies, the question remains how deeply the new top-level policies and changes in Agency discourse will penetrate. In other words, how long will substantive change in institutional culture and programmatic reform persist beyond the Biden administration, especially without substantive legislative and regulatory changes. The EPA's long history of starts and stops in addressing environmental justice issues, including civil rights enforcement, suggest caution with respect to expectations of durability and the depth of change in agency culture. In the end, akin to steering an aircraft carrier, changing course will have to deal with the inertia of issues that are deeply embedded in the Agency's institutional culture, structure, and programs.

Equally important, the Article also identifies concerns that the Biden administration has yet to turn its attention to. In that sense, the Biden administration's ongoing reform initiatives suggest a rare opportunity for broader change that can be informed by the discussion here.

The Article's basic argument is that the EPA's traditional efforts to look past race--an institutional culture of color blindness not only blinded it to the continuing salience of race, but also to new manifestation of environmental racism. In appearance and content, the problems are not only of “old wine in new bottles,” but also “new wine in old bottles.” The EPA's failure to remedy racial disparities in environmental quality has left affected communities of color much like the proverbial canary in the coal mine--as the most vulnerable communities, their plight is indicative of broader problems in EPA's work on distributional equity and other non-race specific environmental justice issues. Within EPA's Title VI program, the three most serious manifestations of these troubles are: (1) its response to community claims of discrimination by state officials; (2) its assessment of the harms imposed by pollution and environmental risks; and (3) its response to claims of compounded environmental harms, including intangibles. Taken together, these three issues have been among the most important causes of EPA's Title VI program failures.

Part I of the Article provides an overview of environmental discrimination and why the lack of attention to racial discrimination concerns continue to matter. Part II describes EPA's antidiscrimination enforcement program under Title VI of the Civil Rights Act, its failures, and the established narratives of the causes of those failures. Part III describes the three blind spots in EPA's understanding of how discrimination has manifested itself in its regulatory oversight work and the consequences. Finally, Part IV suggests options for remedying those regulatory blind spots in terms of specific policy changes. It also suggests structural changes within the Agency and long-term initiatives that will address the broader goal of environmental justice.

The terminology in this Article utilizes “environmental discrimination” to refer to both intentional discriminatory actions as well as behaviors and practices that have the effect of discriminating. “Environmental racism” is used to describe discrimination in its pervasive or systemic aspects, especially structural inequalities and discrimination that are embedded in the ways that government, civil society, and industry address environmental issues, including the unequal effects of race-neutral programs and policies. Finally, “environmental justice” and “environmental equity” are used interchangeably, though “environmental equity” tends to focus on visible, measurable disparities, whereas “environmental justice” is used as an umbrella term to capture a broader range of unfairness experienced by marginalized communities with respect to environmental conditions, including issues of corrective justice, distributional justice, procedural fairness, and even social justice.

[. . .]

The Black Lives Matter movement has revitalized the call for special attention to the burdens imposed on Black communities by the contemporary reality of racial disparities and discrimination. That same attention is needed for the EPA's Title VI program to be effective in addressing the problem of environmental racism and its contemporary manifestation. In the end, choosing to put environmental justice and the needs of vulnerable and marginalized communities first is not only the call of the environmental justice movement. It is just part of the call for justice.

Tseming Yang. Professor of Law, Santa Clara University School of Law; Deputy General Counsel U.S. Environmental Protection Agency (2010-2012); Executive Council Member, National Environmental Justice Advisory Council (1998-2003).