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Court Rules EPA Unlawfully Delayed Environmental Racism Investigations For Decades

Above Photo: Darlene McClendon, 62, at her home in Flint, Michigan, on October 11, 2016. (Photo: Brittany Greeson / The Washington Post via Getty Images)

A federal court ruled this week that the Environmental Protection Agency (EPA) violated the Civil Rights Act by delaying investigations into environmental discrimination complaints for years, even decades. For plaintiff Phil Schmitter, a priest and social justice activist from Flint, Michigan, the ruling is a bittersweet victory that was a long time coming.

Schmitter’s story begins in the early 1990s, long before drinking water contaminated with dangerous levels of lead would turn Flint into an international symbol of environmental racism. At the time, Schmitter and other advocates living in a predominantly Black neighborhood on the outskirts of Flint were fighting a proposal to build a scrap wood incinerator nearby.

In October of 1994, Michigan state regulators arrived with armed guards at a school in Schmitter’s neighborhood to hold a hearing on a pollution permit for the incinerator. Schmitter and other attendees were shocked: Gun-wielding guards were nowhere to be seen at previous hearings held hours away in Lansing. Did they bring the uniformed guards to Flint because residents opposing the incinerator were Black?

“That’s very intimidating [to say], ‘Hey, come tell us what your concerns are,’ and there are these armed people here,” Schmitter told Truthout in an interview.

Reams of data show that sources of industrial pollution are more likely to be located near low-income communities and neighborhoods of color.

EPA investigators would later note that the hearing in Flint was abruptly adjourned before several community members had a chance to testify. In fact, hearing voices from the Black community in Flint did not appear to be a priority for the state environmental commission. One of the previous hearings in Lansing dragged on late into the night as regulators considered permits for other projects first, and advocates from the Flint neighborhood who would later live in the shadow of the incinerator, waited hours to speak their piece after driving across the state to get there.

Two Black state lawmakers had asked to speak to regulators in advance of the earlier hearing in Lansing because a scheduling delay had made it difficult for them to arrive in time to speak, but those requests were denied. One lawmaker was only able to make comments to regulators late in the evening after traveling 120 miles. However, a white lawmaker interrupted the meeting and was allowed to make remarks, even as the commission considered postponing the portion of the hearing focused on the incinerator to another date.

“As a white man, I could see that Black people were being treated in a very different way than white people, and if that’s not racism, then I don’t know what is,” said Schmitter, who had lived in public housing with local residents after moving to the area.

Waiting Decades for Justice

Schmitter and other activists filed two complaints with the EPA in the early 1990s, some of the first filed with the agency’s fledgling civil rights office. The complaints argued that Michigan’s environmental quality office had discriminated against local residents, and the decision to build the incinerator in their neighborhood followed a pattern of placing incinerators and other hazardous facilities in lower-income communities of color.

The EPA agreed to investigate their initial complaint in 1995, but that did not prevent the incinerators from going into operation months later. The facility burned wood from demolished buildings to generate electricity and spewed at least 2.2 tons of lead from paint found on the scrap wood into the air each year, according to legal records. As time passed, the EPA would designate the incinerator a “significant violator” for spewing pollution.

The EPA has only made a formal finding of discrimination twice.

The Flint complaint was not resolved until last year, and only after Schmitter and plaintiffs from four other communities filed a lawsuit against the EPA in 2015 for failing to complete investigations into civil rights complaints filed over the past two decades. By then, lead leaching from corroding pipes in Flint’s municipal drinking water system had created a full-blown environmental crisis in the working class city.

Schmitter was in his late 40s when the first complaint was filed. He is now 72, and the three other advocates who signed on to the complaint have passed away.

“I could not imagine that there would still be a problem now and people wouldn’t do what they are supposed to do,” Schmitter said.

A Longstanding Pattern of Discrimination

For environmental justice advocates, Schmitter’s story is part of a longstanding pattern at the EPA. Reams of data show that sources of industrial pollution are more likely to be located near low-income communities and neighborhoods of color, and Black and Latinx Americans often bear the brunt of toxic accidents and emissions. However, convincing the EPA to do something about this pattern of discrimination has proven very difficult.

Since the 1990s, advocates from these communities have filed more than 200 complaints with the EPA’s civil rights office, alleging discrimination. However, the vast majority were rejected or dismissed, according to the Center for Public Integrity. Others, like the Flint complaint, seemed to simply fall through the cracks, remaining unresolved for years.

Out of all of these complaints, the EPA has only made a formal finding of discrimination twice. Those two findings came only in recent years, as the agency came under increasing scrutiny from environmental activists and pledged to improve the performance of its civil rights office. Other cases have resulted in agreements with state regulatory agencies to improve their public comment and non-discrimination programs, but no violations of federal law were declared.

One of the EPA’s two findings of blatant discrimination was in the Flint incinerator case, which the EPA closed in January 2017 after 22 years. In a 35-page letter to Schmitter, the EPA said it had determined that Michigan’s state environmental office had indeed discriminated against Black Flint residents who had opposed the incinerator during the public hearing process in the mid-1990s.

However, the EPA declined to say that air pollution from the incinerator had a “disparate impact” on the nearby Flint neighborhood Schmitter spent years fighting to protect, because emissions generally fell within levels allowed by the state’s air pollution permit.

Jonathan Smith, an attorney with Earthjustice who helped bring the lawsuit against the EPA, said the EPA’s determination that pollution from the incinerator did not have a discriminatory impact on the nearby community reveals a “longstanding problem” with how the agency investigates civil rights complaints.

“Pollution from a facility is still harmful regardless of whether it’s within the permit limits,” Smith told Truthout.

Smith said that when the EPA does agree to investigate environmental racism, it tends to focus on permits and specific scientific data rather than the broader socioeconomic implications of allowing multiple polluters to operate near poor neighborhoods of color in the first place. Residents of Flint already had multiple sources of pollution to contend with when the incinerator arrived, but the EPA only focused on pollution from the incinerator itself, not the cumulative impacts of placing it near other sources.

Smith said the emphasis on pollution permits allows the EPA to approach civil rights differently from other federal agencies and focus on individual facilities, rather than recognizing all the pollution a neighborhood must deal with. Environmental permits by design allow certain levels of pollution into the air and water that can be monitored by special equipment. By comparison, the Department of Education does not maintain predetermined levels of segregation that are deemed acceptable in public schools, for example.

Additionally, Smith said, a lack of staffing and funding at the EPA’s civil rights office is a “perennial concern.”

“I think if there were more institutional resources, a lot of handling of complaints could be done in a timely and thorough manner, which would be beneficial to communities across the country,” Smith said.

A spokesperson for the EPA’s civil rights office did not respond to a request for comment from Truthout by the time this article was published.

While the federal court in California that handed down the ruling against the EPA this week avoided making judgments on the results of the agency’s civil rights investigations, it clearly agreed with the plaintiffs that the agency had violated federal law by missing statutory deadlines for completing several investigations by decades.

Schmitter considers the ruling a win, but he wishes the EPA would have just done its job in the first place. That’s what he expected when he first filed the complaint over two decades ago, an assumption he now considers naïve.

However, Schmitter is not stopping now: The next step, he says, is to work with the EPA and Michigan’s regulators to make sure the rights of Flint residents — and environmental justice communities across the country — are never ignored again. In the wake of its findings related to Schmitter’s complaint and the Flint water crisis, the EPA is currently working with Michigan environmental regulators to reform their non-discrimination programs.

“This is a huge victory, but with all of the different places around the country that are being ignored on the state level, [the government] is just not helping to have a decent environment for people of color,” Schmitter said.

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