In the latest example of a state’s backlash against civil rights enforcement by the U.S. Environmental Protection Agency, the Texas agency has withdrawn from negotiations to resolve complaints alleging that pollution decisions are racially discriminatory.
The EPA made the disclosure Thursday in an online document along with a letter dated Wednesday, but said it would continue to investigate the matter.
That’s exactly what the EPA’s case resolution manual says to do if negotiations fail. This is a necessary process for the agency to determine whether to determine a violation and seek termination of federal funds.
But this spring, negotiations with the two Louisiana agencies stalled, and when the state’s Republican attorney general filed a lawsuit against the EPA, the federal agency instead dropped the case. In a closure letter in June, EPA said it would take no further action on the matter.
The Texas complaint, filed by Lone Star Legal Aid, Environmental Conservation Projects, and Texas’ largest county, asked the EPA to intervene in response to the Texas Department of Environmental Protection’s decision. One of these focused on permitting a petrochemical plant in Port Arthur in the Gulf Coast region. The remaining two cases involve permits that would allow the proliferation of concrete batch plants in communities of color in the Houston area.
“The issues here are very serious and we look forward to seeing the EPA step up,” said Harris County Attorney Christian D. Menefee.
A Center for Public Integrity study released Wednesday found that the EPA has failed to fully exercise its authority under the Civil Rights Act of 1964 after encountering resistance. Title VI of the Act prohibits discrimination on the basis of race, color, or national origin by recipients of federal funds. EPA has never in its history withheld funding due to Title VI violations.
The Texas Commission on Environmental Quality, whose mission is to protect public health and natural resources “consistent with sustainable economic development,” asked the EPA in an Oct. 20 letter to resolve the complaint through informal negotiations. They announced that they would withdraw from the negotiations they had been aiming for. Agreement.
TCEQ said it believes the EPA office that handles Title VI complaints has “limited” authority under the law. It also complies with federal environmental regulations under Title VI to address unequal pollution loads by changing how facilities are permitted, a common claim that EPA disputes. He argued that he could not make demands.
“EPA has not yet articulated its specific expectations or the legal authority on which those expectations are based,” the TCEQ letter said.
TCEQ cited EPA’s response to one of the Louisiana complaints and argued that the only consistent action would be to terminate the Texas complaint as well.
One of the complaints focuses on permitting a calcined coke facility in Port Arthur’s majority-black community, which is choked by air pollution. The other two argue that TCEQ is not protecting people’s health when it comes to permitting concrete batch plants. More than 100 such plants are concentrated in communities of color in Harris County, according to one of the complaints.
Harris County is home to Houston. Both lack zoning regulations, a mechanism often used by communities to create a certain distance between residential and industrial facilities. Historically, white neighborhoods in the area have protected themselves through deed restrictions on use, the Lone Star Legal Aid complainant noted. However, those land use documents also prohibited non-white residents. Black residents and other people of color were forced to relocate to areas where industry was concentrated.
Although Supreme Court decisions and civil rights laws halted restrictions on racist practices, the exposure of racism and unequal contamination they caused continues today. Plaintiffs argue that that is important context not explained in the TCEQ grant.
Lone Star Legal Aid’s complaint states that the concrete batching plants “have been forced by TCEQ to select sites in these communities rather than sites in white, more affluent neighborhoods where regulations have historically protected these communities from industrial encroachment. is encouraged.”
TCEQ proposed changes to the concrete batch plant permit in response to Title VI complaints. But proponents believe it’s not enough to protect health, especially in areas with multiple plants. Menefee, Harris County’s chief civil attorney, said he was “incredibly disappointed” that TCEQ did not continue to resolve the issue with the EPA.
“I hope that the EPA will do everything in its power to hold TCEQ accountable,” he said.
EPA does not comment on pending Title VI complaints. In response to questions about the decision, the company pointed to the details of the letter.
Past and present collide over environmental justice
The intersection of race, toxic atmosphere, and historical discrimination in Texas is not uncommon. In the United States, studies show that people of color and low-income communities bear the brunt of health-threatening pollution. Modern zoning and permitting by local and state authorities across the country reinforces historical patterns set in an era of legal discrimination.
This is an example of “disparate impact” discrimination where a seemingly neutral decision produces a discriminatory effect. Since 1973, EPA’s Title VI regulations have prohibited both disparate impacts and intentional discrimination.
The Louisiana lawsuit claims the EPA lacks authority over disparate impacts. The Supreme Court has tolerated such federal policies in the past, but today’s supermajority of conservative justices could rule differently if the case goes to court.
Environmental justice experts believe that’s why the EPA discontinued Louisiana’s case, and expect a federal court to dismiss the case as a result.
There is a history of state and local efforts to circumvent civil rights requirements, both within and outside the South. But the level of backlash against EPA’s Title VI complaint process is new. Because for decades, the EPA did little under the law.
In a 2015 investigation, Public Integrity found that authorities tossed out the vast majority of complaints without investigating, leaving communities waiting years for help that rarely came. Few complaints ended in agreements that committed funding recipients to changes. And by taking away their funds, EPA never showed recipients that it was serious about noncompliance.
After President Joe Biden took office in 2021 with a promise to prioritize environmental justice, the EPA began receiving more complaints for investigation and fewer delays. But so far, settlement agreements the Biden administration-era EPA struck with state and local agencies to resolve discrimination allegations have not called for any major changes in how polluting facilities are approved.
And they still haven’t recovered the funds. Whether the EPA ultimately does so in the Texas case will depend on whether the agency completes its investigation, finds violations, and still fails to persuade state officials to make changes voluntarily.
Even if that were to happen, EPA would need to choose action. In the waning days of the Obama administration, the EPA ended a 24-year-old complaint against Michigan’s Environmental Protection Agency with only a finding of discrimination and a list of recommendations.
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