The US Environmental Protection Agency was recently called on to respond to a decade’s worth of complaints regarding discriminatory practices on the part of states issuing permits to polluting facilities sited in marginalized communities already overburdened by environmental degradation.
A lawsuit filed in a US District Court for the Northern District of California seeks to compel the agency to fulfill its duty to enforce Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, and national origin in programs and activities that receive financial assistance from the federal government.
The plaintiffs contend that many states have failed to consider the environmental burden new polluting facilities place on residents in communities that already suffer from higher than average levels of asthma and breast cancer due to pollutants.
Some states, they claim, have even actively stopped residents from participating in public hearings regarding the permits, or provided inaccurate information about the facilities and the permitting process.
None of this should be news to federal regulators at the EPA, since they accepted complaints from each of the plaintiffs, which obligated the agency to investigate. But the EPA has yet to take action based on the complaints. The lawsuit cites as its impetus the EPA’s “unreasonable delay” in responding to complaints filed with the agency by the plaintiffs between 1994 and 2003.
For instance, the Sierra Club Lone Star Chapter and others submitted a complaint to the EPA in April of 2000, after regulators at the Texas Commission on Environmental Quality issued a permit allowing ExxonMobil to expand its refinery in Beaumont, TX, which led to increases in several categories of emissions, including hydrogen sulfide.
The public was not allowed to participate in a hearing on the permit, the Sierra Club says. Its complaint also notes that 95% of the people living in the area most impacted by the Beaumont Refinery are African American, and over half live in poverty.
The EPA accepted the complaint for investigation in 2003 but never responded. The Beaumont Refinery subsequently expanded its operations and increased its emissions of hydrogen sulfide and other air pollutants.
It’s not as if the EPA isn’t aware of just how dirty these facilities are, either. The EPA has levied multiple penalties against ExxonMobil since its Beaumont Refinery expansion, slapping the company with millions of dollars in fines for violating the Clean Air Act and failing to properly monitor emissions of pollutants at the refinery. EPA has even classified the Beaumont Refinery as being in “Significant Violation” of the Clean Air Act, according to the Sierra Club’s complaint.
“The African American community is next to the ExxonMobil oil refinery and has been seeking clean air for years,” Neil Carman of the Sierra Club Lone Star Chapter said in a statement. “One way the state can do this is to take steps to lower toxic releases of hydrogen sulfide like those released by the refinery, and not permit ExxonMobil to release more.”
But the state of Texas, like many other states, has thus far shown no willingness to consider environmental justice in siting polluting facilities, which is why the Sierra Club was forced to appeal to the EPA for intervention.
More than a decade and a half since the Sierra Club Lone Star Chapter’s complaint was filed, however, the EPA still has yet to respond — despite a regulatory mandate that the agency issue preliminary findings and any recommendations for achieving compliance within 180 days of accepting a Title VI complaint.
Other parties to the lawsuit include Alabama-based Ashurst Bar/Smith Community Organization, CAlifornians for Renewable Energy (CARE) and its president Michael Boyd, New Mexico-based Citizens for Alternatives to Radioactive Dumping and Michigan-based Sugar Law Center for Economic and Social Justice.
The groups want the EPA to investigate the discrimination cases they’ve previously raised with the agency, in the hopes it will issue long-overdue findings and recommendations.
“It is unacceptable that the racial composition of a community continues to be a critical factor in predicting exposure to toxic contamination,” Marianne Engelman Lado, an attorney with Earthjustice, which filed the suit on behalf of the groups, said in a statement.
“Justice has been delayed for too long. While EPA sits on these complaints, facilities continue to pollute and communities living in proximity to these facilities are deprived of their rights.”
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