After 26 years, the oldest pending civil rights complaint against the Environmental Protection Agency is finally over. A district court in California has found that the EPA was guilty of environmental racism when it ignored the pollution concerns of a largely African-American community in Flint in the 1990s.
On June 14th, a judge ordered the EPA to improve its procedure for dealing with Title VI complaints, complying with a 180-day deadline to investigate or resolve plaintiffs' concerns about environmental discrimination.
That is the end of a story that began in 1992, when Father Phil Schmitter, a Catholic priest then in his 40s, was upset to learn that a wood-burning incinerator and power station was planned for his neighborhood, a predominantly low-income, African-American area in Flint, Michigan.
In the absence of emission-control technology, the community was concerned that the incinerator, called the Genesee Power Station, would emit lead, mercury, arsenic, and other pollutants into the air, given the presence of paints and pesticides in the fuel. They also worried that the deteriorating air quality would be undetectable, as no prior air quality study had been undertaken in the area surrounding the proposed plant.
Even the decision to place the incinerator in this community was discriminatory, according to Schmitter and Sister Joanne Chiaverini, who both worked at the St. Francis Prayer Center, in one of their first letters to the EPA.
"This is a diabolical example of blatant environmental racism and classism—another time people of color and low income are targeted by the continuing rush for profit by our corporations regardless of who is victimized by the pollution," Schmitter and Chiaverini wrote. They added that they trusted the EPA to prevent the permit from being issued, thereby preventing the further deterioration of air quality in Flint.
Beyond the decision to place the incinerator in the neighborhood, the permitting process was rife with instances of discrimination. The hearings were initially held in Lansing, 65 miles away from the community in question, making it difficult for poor residents to attend. During the hearings themselves, white people were prioritized over black attendees when it came to testifying. When a hearing was finally held at a venue within the community, the Michigan Department of Environmental Quality installed armed guards, contrary to their usual practice.
"It became apparent they must have perceived African Americans as violent, bad people. And it's very intimidating to have people standing around with weapons," Schmitter says.
The St. Francis Prayer Center brought an initial complaint against MDEQ for violating its civil rights throughout this process. By law, the EPA had 180 days to respond. The EPA missed its deadline—not by a few days, but by more than two decades.
Over that period, the incinerator was built on the edge of Flint, with operations starting in 1995. It subsequently earned a place on the EPA's list of significant violators. This delay raised the question of whether the EPA, as well as MDEQ, was guilty of violating the civil rights of the African-American residents of Flint.
As it turned out, the agency had behaved similarly in other areas of the United States, delaying investigations into environmental complaints by minority communities indefinitely. A 2015 investigation by the Center for Public Integrity found that, of all complaints submitted to the EPA's civil rights office, 162 were rejected, 38 were not reviewed, and only 64 were accepted.
In response to these frustrations, in 2015, groups from California, Alabama, New Mexico, and Texas, alongside the St. Francis Prayer Center in Michigan, banded together in a joint lawsuit against the EPA, accusing it of violating their civil rights.
After multiple decades of delay and broken promises, the threat of legal action prompted the EPA to act. On January 19th, 2017—the final day of Barack Obama's presidency—the EPA closed its investigation into Schmitter's complaint, concluding that members of the African-American community had been treated less favorably than white participants during the permitting process for the incinerator, and that any "reasonable person" would conclude that race had been the deciding factor. It was the second finding of discrimination that the EPA had ever made.
On the basis that it had now concluded all the cases, the EPA sought to dismiss the lawsuit, claiming the plaintiff's claims were now "moot." The court disagreed.
"The EPA can't just try to resolve this lawsuit and get away scot-free just by quickly tidying up these five complaints," says Jonathan Smith, an associate attorney at Earthjustice, the non-profit that represented the plaintiffs. "There's case law that says that, if an agency has a practice of illegal delay, just wrapping things up once there's a lawsuit doesn't absolve the agency of liability concerning the delay."
In any case, the victory for Flint is somewhat bittersweet. Most of the people originally involved in fighting the incinerator are now dead, including Chiaverini, who died in 2008, aged 68, from complications following a heart valve replacement.
Furthermore, the court's finding against the EPA does little to remedy more than two decades of environmental racism in Flint, the impacts of which were felt during the Flint water crisis. The Governor's Flint Water Advisory Task Force concluded in 2016 that, yet again, black and impoverished residents "did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities," following the revelation that residents have been exposed to high levels of lead in their drinking water.
"If the EPA had entered into a resolution agreement with the Michigan state agency 20 years ago, some of the problems that ultimately led to the Flint water crisis, overlooking environmental injustices, maybe those could have been handled differently from the get-go," Smith says.
Schmitter hopes that his lengthy battle for justice can at least help other communities in the future. But all the evidence points to an uphill battle when it comes to achieving justice for minority communities, including recent attempts by the Trump administration to do away with or weaken the EPA's Office of Environmental Justice.
"Justice has been done to some extent," Schmitter says. "I think it will affect other cases in the sense it will be case law so that the EPA does have to respond in a timely fashion."
"Today's judgment affirms that [the] EPA cannot continue going through the motions without meaningfully attending to serious problems of environmental discrimination," says Suzanne Novak of Earthjustice, the lead attorney on the case. "The EPA must now secure real changes and ensure civil rights compliance by states and regional authorities that receive EPA funding, or be held accountable by the court. The court was clear that communities overburdened with polluting facilities should no longer have to wait decades for justice."
New Landscapes is a regular series investigating how environmental policies are affecting communities across America.