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    10.01.15 Professor Gregg Macey on the Legal Fight for Environmental Justice
    Gregg Macey

    Years ago, Professor Gregg Macey spent weeks in a computer lab with two colleagues assembling a mix of spatial, demographic, and public health variables to explore the challenging issue of lead exposure in South Central Los Angeles. They constructed models of health outcomes and were ready to run their final regression. What they found surprised them.

    "We learned that the primary predictor of elevated blood lead levels in children was whether they lived near a major roadway," said Macey who teaches courses in Environmental Law and Property at the Law School. "This made sense, given that lead binds to the soil and can remain there for years, long after it once regularly contaminated the rights-of-way of our highways. We were able to show Los Angeles that this exposure pathway, along with lead-based paint in aged housing stock and proximity to emitters, was a problem to look into."  

    Their report, published in a peer-reviewed journal, was the first of many that Macey wrote to focus on environmental justice -- efforts by poor and minority communities to address their disproportionate exposure to pollution and related hazards. Macey also published his first law review article that year, which explored the unintended consequences of advancing environmental racism claims through litigation. Apart from litigation, the article acknowledged another strategy. Communities were filing dozens of administrative complaints with the Environmental Protection Agency, claiming that decisions made by agencies that received grants from EPA increased their exposure to toxins and other stressors, which they argued, violated their civil rights under Title VI of the Civil Rights Act of 1964. For most communities, the Supreme Court rendered a private right of action under the statute a non-starter. 

    "There is no private right of action to address the impacts of an agency decision under Title VI,” Macey said. “Unless you show that a recipient of federal funds made a decision that was motivated by racial animus, your Title VI civil suit will likely be dismissed. The only avenue to address discriminatory impacts is an administrative complaint under the statute. A Title VI administrative complaint is thus a vital tool for impacted communities." 

    Only a few cases, including one that Macey researched for EPA's Office of Environmental Justice, yield evidence of racial bias. More often, there are only data about the impacts of a facility siting or other agency decision. In those cases, an administrative complaint is one of the few options left for a community. A recent series published by the Center for Public Integrity found that EPA's lack of enforcement of Title VI remains as pressing an issue as ever. Professor Macey was interviewed for the series, and provided information about his work, along with other environmental justice advocates, to press EPA to reform how it investigates Title VI complaints.

    “We’ve had a chance to meet with agency officials about the administrative complaint process for years now,” Macey said. “The record of neglect and delay that led us to the table is startling. Americans who live near major sources of pollution, which are detailed in these complaints, are told that a decision is 'imminent.’ But communities would sometimes wait for 10 or more years before hearing a response, even though the agency is required to respond to a complaint within 20 days, and make a preliminary finding within 180 days. The complaints languish in a secretive process that can span a generation. Facilities are built, agencies change names, operating units change hands, permits are renewed, and complainants grow old and even die. And still the complaints await a decision."

    EPA has made only one preliminary finding of a Title VI violation. Even then, the agency did not work to improve conditions on the ground.

    "EPA stresses voluntary compliance when it negotiates with a potential violator -- but it has a low threshold for what it views as acceptable voluntary compliance,” Macey said. “In the case of Angelita C., the agency resolved a complaint about the impacts of pesticide drift on thousands of schoolchildren by negotiating the use of an extra monitor near a single school for a few years. EPA fails to take a tough stance in these negotiations. It expresses confusion about how environmental laws and civil rights laws intersect. It downplays the kinds of data citizens collect. It stacks the deck against the possibility that available data will lead to a finding of adverse impact, to say nothing of a disparate impact that violators can try to rebut. And then, once in a while, it sits down under these conditions and negotiates compliance. The results should surprise no one."

    More recently, Macey and other advocates have sensed a change in attitude, if not approach, at the agency.

    "EPA is building expertise in the area,” Macey said. “Under the previous Administrator, it set out to build a 'model civil rights program.' I see evidence that the agency is improving how its Office of Civil Rights leverages resources from across the agency, even as it continues to stress the scientific complexity of complaints. Much of this change was encouraged by litigation, particularly the Rosemere decision. We will have to wait to learn about EPA’s efforts to step up compliance reviews and collect more data to determine the extent of compliance.” Macey said that while EPA is also reviewing regulations and case management procedures, the agency must also reform how it investigates complaints. “EPA must to bring its understanding of impacts in line with the current science of how a community experiences cumulative impacts and multiple stressors,” he said. “And more efficient complaint processing only helps if the agency is willing to make a preliminary finding, use 'any means authorized by law' to ensure compliance, take a tough stance in compliance negotiations with fund recipients, and even show that it is willing to refer complaints to the Department of Justice for enforcement.”

    A more detailed assessment of EPA's efforts to revitalize its civil rights office can be found in Macey’s forthcoming article Boundary Work in Environmental Law (Houston Law Review, Vol. 53, No. 1, pp. 103-192 (2015)).

    See also:

    The Center for Public Integrity: How to fix the EPA's broken civil-rights office

    The Center for Public Integrity: EPA plans more aggressive civil-rights reviews