Kelln and Harrell: Could Title VI force change in IN enviro policies?

One of the most important things we have learned in the first year of the Biden administration is that environmental justice will be the primary driving issue for the United States Environmental Protection Agency. Even climate change, which many believed would be this administration’s top priority, is often couched on its potential impact on socially vulnerable populations. Viewing USEPA through the prism of environmental justice will be key to predicting the agency’s trajectory in the upcoming years.

Conceptually, environmental justice is the “fair treatment and meaningful involvement of all people regardless of race, color, national origin or income, with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” The concept of environmental justice is not new, but came to the forefront during the Obama administration in the aftermath of the Flint, Michigan, lead-contaminated drinking water crisis. However, environmental justice never became a coherent strategy and was overshadowed by significant rulemakings around climate change. That has changed in the first year of the Biden administration.

A little known yet powerful tool in USEPA’s environmental justice toolbox is Title VI of the Civil Rights Act of 1964. Title VI requires that “any program or activity” receiving federal financial assistance ensures that no person is excluded from participation in, or the benefits of, that program, based upon race, color or national origin. Under USEPA’s implementing regulations, any disproportionate impact is prohibited in the administration of environmental programs of state agencies like the Indiana Department of Environmental Management, including siting and enforcement. If utilized by USEPA, Title VI could have far-reaching impacts on Indiana environmental policy and regulated facilities in the state.

Facilities in Indiana rank high on USEPA’s environmental justice screening tool

At first blush, Indiana would not seem like a state that could be high on USEPA’s list for increased scrutiny for environmental justice concerns. But according to the USEPA’s EJScreen database, there are almost 4,000 regulated facilities in the state of Indiana, with at least one environmental justice indicator above the 80th percentile. This means that, according to data compiled by USEPA, the area within a square-mile radius of the facility reports at least one environmental condition in the worst 20% of the country such as particulate matter, ozone, NATA diesel PM, NATA air toxics risk, NATA Respiratory Hazard Index, traffic proximity, lead paint, Superfund site proximity and wastewater discharge proximity. Many of those sites are close to urban areas, such as Indianapolis or the Northern Indiana region. Consequently, a significant number of facilities in Indiana are within areas that USEPA could target for its environmental justice initiative.

Indiana’s history with lead has echoes of Flint, Michigan

In November 2020, the Indiana Advisory Committee to the U.S. Commission on Civil Rights issued a report entitled, “Environmental Injustice: Lead Poisoning in Indiana.” The report examined civil rights issues related to indoor and outdoor lead exposure in the state. Specifically, the committee found that “the continued refusal to amend the blood lead contamination level from 10 μg/dL to the nationally recommended 5 μg/dL in order to receive critical resources speaks to ongoing government and regulatory neglect of Indiana’s citizens of color.”

Janet McCabe, former director of the Environmental Reliance Institute, testified at a hearing for the committee on the dangers of lead in residential homes to children in Indiana. She stated, “We have children all over the state who are at risk of lead poisoning” and “the primary source of lead poisoning for children in Indiana is their own home.”

Importantly, McCabe now serves as the deputy administrator for the USEPA. Meanwhile, professor Carlton Waterhouse, a former professor at the Indiana University Robert H. McKinney School of Law with firsthand knowledge of applying Title VI to environmental permitting actions, was nominated to oversee the USEPA Office of Land and Emergency Management.

Title VI environmental actions in other states

The November 2020 report by the Indiana Advisory Committee to the U.S. Commission on Civil Rights cited Title VI of the Civil Rights Act of 1964 as the primary law that the state of Indiana must comply with to prevent disparities in the environmental protection of children based on race, color or national origin.

Administrative complaints under Title VI of the Civil Rights Act have recently been used in other states to effectuate changes in state environmental policy. The first example is a Title VI Civil Rights Act complaint filed on Jan. 20, 2022, by the Concerned Citizens of St. John and the Sierra Club against the Louisiana Department of Environmental Quality and the Louisiana Department of Health. The complaint alleges LDEQ’s failure to act on expired Clean Air Act permits has caused disproportionate impacts on residents of St. John the Baptist Parish, Louisiana. The complaint further alleges that LDH failed to take any action to protect children in a St. John elementary school even “[i]n the face of alarming [US]EPA data on the cancer risk in St. John the Baptist Parish … .”

In the complaint, the citizen plaintiffs want LDEQ to act on expired air permits at a neoprene production facility and evaluate and reduce hazardous air pollutant emissions from the facility to better protect the residents of the community. This includes the formation of an LDEQ and LDH environmental emergency contingency plan that would “… conduct a full assessment of disparate impacts from the facility including: fence line monitoring, [and] a cooperative community needs assessment.” The plaintiffs also requested medical monitoring at a local elementary school. The flavor of these potential remedies is traceable to USEPA’s environmental justice initiative.

Similarly, a nonprofit environmental group known as the Great River Environmental Law Center filed a Title VI complaint in late 2020 against the Missouri Department of Natural Resources. The plaintiffs alleged MoDNR, among other violations, failed in their duty to comply with Title VI by issuing an operating permit in a community and “… failing to analyze the potential for disproportionate and disparate environmental and human health effects on nearby minority and low-income communities.” Notably, plaintiffs requested a cumulative impact analysis for all sources in the community. The USEPA has not yet concluded the matter but preliminarily determined MoDNR lacked several components of a nondiscrimination program.

Conclusion

States like Indiana and Louisiana may be geographically diverse, but both states contain many of the same types of industries, including chemical manufacturing. Meanwhile, Indiana and Missouri share many qualities common of Midwestern states. Most notably, both state’s environmental agencies were once led by the late Carol Comer. She was the IDEM commissioner in 2016 and 2017 and then was director of MoDNR from 2017 to 2021.

Given the number of facilities that score high on USEPA’s Environmental Justice Index, it is all but certain that the agency will embark on one or more enforcement cases in Indiana under the agency’s environmental justice initiative. In addition, Title VI of the Civil Rights Act is a potentially far-reaching tool that will cause a ripple effect on regulated facilities, particularly those in environmental justice areas. For the next few years, facilities located near residential areas with low socioeconomic demographics should be on the lookout for heightened enforcement and plan accordingly.•

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Max Kelln is co-leader of Faegre Drinker Biddle & Reath’s Environmental and Energy practice team and partner in the firm’s Indianapolis office. Julian Harrell is an Environmental and Energy partner in Faegre Drinker’s Indianapolis office. Opinions expressed are those of the authors.