A Powerful Tool to Address Discrimination and Advance Environmental Justice
“Title VI’s breadth of coverage is extensive and it can address a huge array of injustices: from environmental racism…to disparities in basic health care and basic services to inequities in transportation, housing, and education.”
August 19, 2010 Memorandum from the Assistant Attorney General for Civil Rights to the Federal Funding Agency Civil Rights Directors.
Environmental justice and Title VI are both rooted in the same basic principle that no person should bear an unfair share of harm on account of their race, color or national origin. At its core, Title VI requires recipients of federal funding to ensure that their programs operate in a nondiscriminatory manner. Indeed, the central tenet of environmental justice – that programs benefiting a community as a whole not disproportionately allocate their adverse environmental and health burdens – flows directly from this underlying principle of Title VI.
Where federally funded programs – like transportation agencies, state agencies responsible for environmental permitting, hospitals and health clinics, and countless others – affect human health or the environment, Title VI enforcement may resolve problems that other laws cannot.
Discriminatory Effects under Title VI. Most federal agencies have regulations implementing Title VI, which prohibit funding recipients from “utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin….” See, e.g., 28 C.F.R. 42.104(b)(2) (DOJ regulations). This prohibition on unjustified discriminatory effects was first established nearly 50 years ago, just after passage of the Civil Rights Act in 1964. Individuals must turn to the administrative complaint process to secure the protections afforded by these regulations. Federal funding agencies play a vital enforcement role because individuals must turn to the administrative complaint process to secure the protections offered by these regulations. The Attorney General has directed federal agencies to fully utilize these provisions and the Assistant Attorney General for Civil Rights has emphasized the need for their vigorous enforcement. Federal agencies must recognize their crucial role in addressing discriminatory effects and work to further environmental justice though Title VI enforcement.
Intersection of Title VI and Environmental Justice. Many types of Title VI cases involve environmental justice issues and could be resolved through the administrative complaint process. Some factors to consider in determining whether specific situations raise environmental justice concerns include whether individuals, certain neighborhoods, or tribes:
- Suffer disproportionately adverse health or environmental effects from pollution or other environmental hazards;
- Suffer disproportionate risks or exposure to environmental hazards, or suffer disproportionately from the effects of past under-enforcement of state or federal health or environmental laws;
- Have been denied an equal opportunity for meaningful involvement, as provided by law, in governmental decision making relating to the distribution of environmental benefits or burdens. (Example: permit processing and compliance activities)
Where a federally funded program may be responsible for these harms, a Title VI investigation may help determine whether the harms have a discriminatory effect on persons identifiable by race, color, or national origin.
Federal Coordination of Title VI and Environmental Justice
The Department of Justice is charged by Executive Order 12250 with ensuring the government-wide consistent and effective enforcement of Title VI, which includes nondiscrimination in programs and activities that affect the environment and human health:
- The Title VI Committee of the Federal Interagency Working Group on Environmental Justice (EJ IWG), which is chaired by DOJ’s Civil Rights Division, acts as a resource to help agencies connect their civil rights enforcement responsibilities with their efforts to achieve environmental justice. In 2014, the EJ IWG launched its Title VI webpage with the goal of ensuring consistent enforcement of Title VI across the federal family and encouraging the use of this critical enforcement tool to address environmental justice issues. go.usa.gov/3BYf5
- The Civil Rights Division’s Federal Coordination and Compliance Section runs a robust program of technical assistance and legal counsel to civil rights offices across the government. A significant part of the Division’s environmental justice work is providing targeted technical assistance to federal agencies that receive complaints alleging Title VI violations in programs that effect the environment and human health. The Division helps many agencies in addressing matters involving intentional discrimination as well as discriminatory effects in matters involving environmental permitting and enforcement, transit equity, municipal services, emergency management, access to federal benefits, and more. Read more about our Title VI Coordination Initiative here: go.usa.gov/3BYfV).
- The newly launched Title VI training program for federal civil rights staff includes a segment on environmental justice. This training component emphasizes the ability of agencies that fund activities that affect human health and the environment to use their Title VI compliance efforts to achieve the environmental justice goals of Executive Order 12898.
- The revised Title VI manual will be issued in 2015. The update will provide detailed guidance to agencies analyzing, among other issues, discriminatory treatment and discriminatory effects under Title VI. Over time, the manual will address the application of Title VI in a range of areas, including environmental justice, transportation equity, and school discipline.
- DOJ’s public outreach on environmental justice issues has included moderating a panel on federal Title VI enforcement during the annual Environmental Justice Conference and Training Program held in Washington, D.C. as well as holding listening sessions to learn about various civil rights issues of concern from stakeholders.
Highlights of Agency Efforts to Advance Environmental Justice through Title VI Enforcement
Approximately 30 federal agencies investigate Title VI administrative complaints alleging discrimination in federally funded programs affecting human health or the environment. Additionally, many of those agencies publish annual environmental justice progress reports. Below we highlight several agencies’ Title VI enforcement activities involving environmental justice issues.
Department of Transportation. DOT has a well-established set of environmental justice (EJ) and Title VI policies, including the Federal Transit Administration’s (FTA) two companion circulars that help recipients understand and comply with environmental justice principles through both Title VI compliance and the environmental justice executive order. Notably, the Title VI circular requires, among other things, that certain recipients conduct an equity analysis of the impact on minorities of certain actions and decisions. Both circulars and related materials are available here.
The Federal Highway Administration (FHWA) also directs recipients to address environmental justice issues in their federally funded activities. It is currently developing a number of resources, including the EJ Reference Guide, which is intended to be a resource for staff to ensure compliance with EJ requirements, and the EJ Booklet highlighting recent policy changes and initiatives. The Guide will aid staff and stakeholders in identifying and addressing disproportionately high and adverse effects of agency programs, policies and activities on minority populations and low-income populations. The Reference Guide clarifies existing requirements and is available to the public on the FHWA EJ website, and can be accessed under “Recent Updates” or “References.” The FHWA has also formed an EJ Workgroup, which includes other DOT modes, and collaborates with the National Highway Institute. The workgroup is developing an EJ Analysis Course as part of the EJ Reference Guide. In order to register for the webinar, participants external to US DOT will first need to request an account here, then register here. FHWA’s civil rights office has conducted a national Title VI Program webinar that includes a component on EJ requirements for state transportation agencies and monitoring responsibilities of FHWA Division offices.
DOT components also address environmental justice issues through investigation and resolution of Title VI complaints. For example, in one case, FTA found two cities in south Florida non-compliant with Title VI requirements when the cities failed to assess the potential adverse disparate impacts stemming from relocation of a trolley maintenance facility to a historically Black neighborhood. As a direct result of FTA’s involvement in the matter, city officials agreed to keep the facility near its current location. Read more here. Similarly, in another Title VI investigation, FHWA found that an Ohio city’s denial of expanded bus service to a large medical center, as well as other essential services, caused disproportionate harm to African Americans. The case ultimately resulted in the construction of three new bus stops. Read more here.
Environmental Protection Agency. In accordance with Title VI, EPA’s office of Civil Rights (OCR) maintains a program to ensure that recipients of Federal financial assistance from EPA do not operate their programs or activities in a way that discriminates on the basis of race, color, or national origin, including on the basis of limited-English proficiency. Consistent with EPA’s ongoing efforts to strengthen its external civil rights compliance program, earlier this week OCR released a report that outlines its progress on specific deliverables related to Title VI compliance efforts, as a supplement to Plan EJ 2014. Read the full report for more information about EPA’s accomplishments regarding specific Title VI deliverables over the past four fiscal years, including: OCR’s renewed commitment to (1) strategic management of its Title VI complaint docket; (2) successful resolution of complaints; and (3) settlement of significant Title VI matters.
In addition, this week OCR released a policy paper entitled “Issue Paper on the Role of Complainants and Recipients in the Civil Rights Complaints and Resolution Process.” The purpose of this paper is to promote greater participation by complainants and recipients in the civil rights complaint and resolution process, including Title VI complaints, by clarifying existing practices and identifying opportunities for greater participation within that framework.
Several agencies’ civil rights offices, such as the Department of Health and Human Services and the Department of Homeland Security, have committed to review environmental justice issues and allegations that arise in programs and activities they fund. To learn more about other federal agencies’ environmental justice and Title VI efforts, visit the home page of the Federal Interagency Working Group on Environmental Justice here and its Title VI page here.