EPA promised to address environmental racism. Flint is still waiting

By Yvette Cabrera, Jamie Smith, and Grey Moran

On November 2, 2023

FLINT — Civil rights law offers a tool for communities of color trying to stop unequal exposure to pollution. Over and over, Flint residents have tried to make it work.

From 1992 to 2015, residents and community groups filed a series of federal complaints asking the U.S. Environmental Protection Agency to intervene over pollution affecting majority Black neighborhoods, from a power plant to the city’s infamous lead-water crisis. Each time, they got little or nothing from the office charged with ensuring state environmental permitting agencies and other recipients of federal funding don’t discriminate.

But in 2021, faced with plans for another polluting facility — an asphalt plant bordering Flint’s northern edge — residents and advocates turned again to the complaint process. This time they had more reason to hope. President Joe Biden promised to make environmental justice a priority government-wide. EPA hired a prominent critic of its weak civil-rights enforcement as it reorganized to do better. 

“I just felt like we were on the brink of something great,” said Mona Munroe-Younis, executive director of the Environmental Transformation Movement of Flint, one of the groups that filed the most recent complaint.

She paused in a conversation this summer, thinking of what had happened. “And then it’s just — gone.”

For decades, the EPA has effectively failed to enforce Title VI of the Civil Rights Act of 1964, designed to protect people of color and immigrants from discrimination by federally funded programs. The Biden EPA’s vow to use the “full extent of its authority” brought a rush of filings from groups and individuals hoping they would finally get help. 

Discriminatory exposure to environmental ills is so common in the United States that rectifying it won’t be easy, let alone in an era where the Supreme Court is rolling back equal-rights protections. Republican opposition was a given. And state agencies in red and blue regions alike routinely sign off on permits that allow yet more pollution in largely Black, Latino and Indigenous communities already overburdened with it, an entrenched status quo.

Amid the rising backlash, the Biden administration is failing to use the full force of its regulatory powers to hold states accountable.  That’s the conclusion of a new Center for Public Integrity investigation, which relies on interviews with dozens of Title VI complainants, lawyers and former federal officials, along with a review of a quarter-century of complaints. It follows a 2015 Public Integrity investigation that prompted promises of reforms. 

In Flint, the agreement EPA ultimately struck with Michigan’s environmental-protection agency in August requires no substantive changes to how the state issues permits. Residents had asked that the state give serious consideration to the pollution they’re already exposed to when deciding whether to allow more.

Instead, the Michigan Department of Environment, Great Lakes, and Energy committed to doing outreach, providing more information, updating air-permitting documents to explain how it would “address consideration of environmental justice,” conducting a community environmental health assessment if funds allow and providing one low-cost air sensor in the area — so residents have slightly more insight into the toxic substances they’re forced to breathe.

This week, Flint residents were further disappointed when Michigan Attorney General Dana Nessel announced she is closing the investigation into the city’s lead-in-water crisis without bringing any prosecutions. 

In Louisiana’s polluted “Cancer Alley,” meanwhile, EPA abruptly closed complaints against two state agencies in June, dropping negotiations on a resolution agreement designed to reform how industrial facilities there get permitted. That move came a few weeks after the state’s Republican attorney general filed a lawsuit claiming the federal government was exceeding its Title VI authority.

It’s part of a conservative effort to upend decades-old federal policy by redefining what counts as discrimination: Decisions by federal funding recipients that systematically harm people of color would be fine, as long as there was no explicitly racist intent behind it. That would pose an existential threat to environmental justice cases because it’s often seemingly neutral decisions that result in pollution disparities by race.

Environmental lawyers believe that fears of the Supreme Court taking up the matter and decimating Title VI made EPA do an about-face in recent months.

In an Oct. 16 letter to EPA and the U.S. Department of Justice, more than 60 individuals and groups expressed “deep dismay” over that. Civil-rights enforcement will always be met with resistance, they wrote. The federal agencies, they said, must take “decisive action to defend and enforce Title VI.”

“This is the moment to do it because everything’s at stake,” Debbie Chizewer, a managing attorney at public interest legal nonprofit Earthjustice, said in an interview after signing the letter. “There are … communities who have been fighting for decades for EPA to take Title VI seriously. And we saw some promising action and we want EPA to stick to it.”

EPA has always rejected the lion’s share of Title VI complaints it receives, citing procedural reasons. But the Biden EPA has accepted more for investigation per month than any other administration dating back to at least fall 1996, the earliest complaint files the agency provided Public Integrity. 

As of mid-October, the agency was negotiating informal resolution agreements to settle 20 of these complaints. To put that into context: EPA records show it resolved just 35 Title VI complaints with various types of agreements in the period between enacting its civil-rights policy and Biden’s inauguration — a span of nearly five decades. 

These agreements get commitments from state or local agencies to make changes. But what really matters, as Flint residents know, is what those changes are.

The EPA under Biden has completed only four agreements as of mid-October, over complaints about a contaminated shipyard in California, lack of accessibility in West Virginia water quality notices, a fuel-loading facility in St. Louis — that case remained open because additional negotiation was underway — and the Flint matter. 

None addresses the fundamental issue for communities bearing the brunt of pollution: specific commitments to reduce that burden.

The agreements aren’t markedly different, in fact, from those written by the Trump administration, which was actively hostile to environmental rules and civil-rights enforcement.The Trump EPA, pressed by a court decision to take more timely action on Title VI complaints, completed negotiations on 15 agreements.

In response to questions from Public Integrity, EPA said in a statement that it’s “moving urgently” to advance environmental justice and ensure clean air and water for everyone. In an interview, a leader in the office overseeing Title VI complaints said EPA is in negotiations now with states to address the pollution burdens on communities facing disparities.

“Our commitment to that as an agency is still unwavering,” said Lilian Sotolongo Dorka, deputy assistant administrator for external civil rights in the EPA’s Office of Environmental Justice and External Civil Rights. 

It’s not just through its handling of Title VI complaints that EPA is working to address environmental disparities, she added. Its programs and regional offices have also picked up that mantle.

“We understand the communities that are hurting, … that they want action,” Dorka added. “And also it’s our view that … no one action really will serve to address all of the burdens that communities are facing. So we really feel very strongly about an all-of-EPA approach.”

So do environmental justice advocates. The Oct. 16 letter to EPA and DOJ, the agency charged with coordinating civil-rights enforcement across the federal government, calls for a number of additional actions beyond Title VI. Among them: better air monitoring, more robust enforcement of environmental laws and stronger regulations to protect health.

The stakes are high. Unequal exposure to pollution keeps cutting people’s lives short.

Civil rights on paper only

In the U.S., getting civil-rights laws passed has never been the end of the battle. Voting, education, housing, banking, healthcare, fair employment — achieving even partial equality took advocacy and federal enforcement as white elected officials and business owners resisted.

It’s this enforcement that communities facing environmental racism have long needed and too rarely received. 

Multiple studies have shown that communities of color and low-income residents bear the brunt of health-harming pollution in the United States, a problem further aggravated by the climate crisis. 

This exposure has multiple causes. Once-legal discrimination. Racial wealth gaps caused by that history. The pernicious way that modern-day zoning and permitting by local and state agencies around the country reinforce historical patterns.

The landmark Civil Rights Act offers a way out: Federal agencies can withhold funding from recipients who discriminate. Federal policy, including EPA’s, defines Title VI discrimination not only as intentional acts but also disparate impacts stemming from decisions made without racist intent.

Many agencies that issue permits receive EPA money. Never in its history, though, has EPA yanked federal funding for this type of violation.

Public Integrity’s 2015 investigation showed in stark terms how ineffectively the agency carried out its civil-rights responsibilities. Of the 240 administrative complaints filed by individuals or groups from late 1996 through 2013 and closed by EPA, roughly 90 percent were either rejected without an investigation or dismissed after one. 

Many petitions languished for years. Among those still waiting for a resolution at the time: a Flint complaint filed 23 years earlier.

A month after the Public Integrity investigation, EPA promised to move more aggressively on Title VI. A 2016 U.S. Commission on Civil Rights report echoed the investigation, noting that the EPA office handling the complaints had “never made a formal finding of discrimination” and has “no mandate to demand accountability within the EPA.”

Residents and advocates had long pressed for change. Now they had additional ammunition. A 2018 federal court ruling offered yet more, finding that EPA’s Title VI delays violated the law. And then came the 2020 election and the Biden administration’s pledge to take this authority seriously. 

EPA has made some important changes to its Title VI program in the last few years, environmental justice lawyers say. Staff there created an online civil rights docket in 2022 so the public could track that work. In a write-up that year aimed at state and local permitting, it told agencies that complying with environmental laws was not a defense for violating civil-rights requirements — batting back a common excuse. EPA also began including complainants in its resolution negotiations, though not in all cases. 

This year, it told recipients of its funding to show that they comply with the basic elements of civil-rights law, striking agreements with more than 100 grantees to cure deficiencies. And after decades of treating Title VI as an afterthought, EPA said in its strategic plan that it was making a “bold and unprecedented” commitment to address civil rights across the agency.

Public Integrity’s analysis, meanwhile, shows the Biden administration is moving faster on complaints, even as some resolution negotiations drag on. The average time to closure is eight months now, half as long as it was during the Trump administration.

But Brandi Crawford was disappointed by the way her Title VI petition ended this year. She said she’s been trying every avenue she knows of to get regulatory action reducing pollution from a paper mill in Kalamazoo, in a predominantly Black part of town. Calls, emails, hiring a toxicologist to produce a report about emissions, pressing for a health study. As soon as she learned about Title VI, she filed a complaint.

That was September 2021. She said EPA told her an agreement was in the works, then that it was completed. In June — nearly two years after the process began, with the agreement still not released — Crawford and others filed a class-action lawsuit against multiple parties, including officials with EPA and Michigan’s environmental-protection agency.

On Sept. 29, EPA said it has the option to close a Title VI complaint when the matter ends up in litigation, and it was choosing to do so — without finalizing the agreement.

“Why is everything an informal resolution process?” asked Crawford, who is white. She moved out of Kalamazoo to protect her family’s health and worries about the residents who can’t afford to leave. “Why do you have to negotiate with an agency you fund? … Stop funding them. They’re killing people.”

An oasis turned ‘sacrifice zone’

Erma Barnes was hunting for a home. Buying would not be easy.

It was the height of the 1960s civil rights movement, and Flint — like communities nationwide — offered very few neighborhoods where Black residents were both welcome and could afford to live. Housing discrimination and racial violence were ever-present threats. And when Barnes, who is Black, sought a mortgage from a bank, staff there turned her down.

But she secured a loan through a federal program and zeroed in on a safe place: a predominantly Black, working-class neighborhood just north of Flint in the neighboring and otherwise largely white Genesee Township. 

It was just about perfect. In 1968, Barnes bought a three-bedroom house there for her family of five.

“As a single mom, when you have children, you want them to have some stability and you want them to have a place to come home that they can feel safe, and I did feel safe in the neighborhood,” said Barnes, now 79, who worked as an adult protective services worker, then later as a substitute teacher.  

The neighborhood abutted a wooded area and was quiet, aside from the chirps of robins, sparrows and blackbirds. Barnes would often spot deer, wild turkeys and rabbits on her walks throughout the neighborhood.

A decade later, Genesee Township built an industrial park less than half a mile from her house. 

The site that officials picked was in a census tract where nearly all the township’s Black residents lived. That decision, along with state permits issued to facilities there over the years, brought an influx of industrial businesses like scrap yards, paving companies and rubber recycling facilities to Barnes’ backyard, including the asphalt plant and one of the other operations that became the subject of Title VI complaints.

The industrial park, and a Michigan decisionto put Interstate 475 through Black communities in and around Flint in the 1970s, turned Barnes’ neighborhood from a haven to a place people wanted to escape. 

“That’s what started the decline of the neighborhood,” said Barnes, who lives about 1,500 feet from the highway. “It tore up the community.”

As more polluting facilities opened, truck traffic on I-475 and nearby Dort Highway increased — bringing its own pollution. A company expanded the nearby railroad tracks and built a terminal station just beyond Barnes’ backyard. Exhaust fumes from idling trains, screeching brakes, blaring horns and earth-shaking booms became a daily ordeal. 

Interstate 475, meanwhile, divided neighbors from the retail businesses they could previously walk to. Residents, some of them laid off by downsizing automakers, moved away and abandoned homes they couldn’t sell. 

Residents in the city of Flint just south of the area have also suffered. The River Park apartments, a public housing complex filled with families in a predominantly Black neighborhood, was built a decade before construction began on the industrial park. Today, the apartment complex sits about 1,500 feet from the new asphalt plant there.

The chemicals and heavy metals emitted by the types of businesses in and around that park over the decades can harm the lungs, heart, brain and kidneys.

Nicole Weaver, 42, has spent most of her life living in the shadow of the industrial park in a Flint neighborhood of small single-family homes near the River Park apartments. She grew up near more than 227 documented pollution sources, including plants treating, disposing and storing hazardous waste, according to a later legal review by civil rights attorney Kary L. Moss. The power plant incinerator, the subject of the 1992 Title VI complaint, opened when she was a child across the street from her elementary school.

Black and white neighbors joined forces to try to persuade the state’s environmental protection agency to reject the plant, the state’s first wood-fired boiler to tap construction and demolition wood as fuel. Weaver, who is white, went door-to-door with her mother, gathering signatures from residents opposed to the proposal.

“We tried our best,” she said, “but it wasn’t good enough.”

Three generations of women in Weaver’s family have suffered from respiratory issues they connect to the pollution that local and state officials allowed. By the time Weaver was 13, she needed a nebulizer three times a day. 

Genesee Township declined to comment for this story. Michigan’s Department of Environment, Great Lakes, and Energy said in a statement issued alongside its agreement with EPA that it was confident it already fully complied with civil rights requirements but wanted to “memorialize our ongoing commitment to environmental justice.”

“We realize the agreement does not address all the issues raised by the local residents during our discussions,” the agency added. “We remain committed to continuing to work with the community to address ongoing concerns.”

Barnes, the Genesee Township homeowner, has called on township officials, code enforcement, the county commission and other staff to address the pollution and noise, but the problems remain. The state, meanwhile, kept approving more permits. 

“They just leave us to fight for ourselves,” she said.

Pressing for environmental justice

In 1992, the St. Francis Prayer Center in Flint filed a complaint with EPA over the state’s permitting of the power plant. When the facility opened in 1995, the petition was still pending.

While the community awaited a response, the prayer center filed another complaint in 1998 over a state permit for a proposed steel recycling mill. Several months later, EPA made what it called its “first substantive decision under Title VI of the Civil Rights Act” — 28 years after the agency’s founding. It was a dismissal. The agency said it found no violations in the state’s handling of the mill permit. 

A 2001 complaint about a state permit for a scrap-metal shredder in Flint ended in closure five years afterward because EPA was satisfied the operation wouldn’t be allowed to shred devices containing mercury. (That toxic substance wasn’t the community’s only concern. Metal shredders emit a variety of health-harming air pollutants, as EPA warned in a 2021 alert.)

Complaints about the city’s lead-contaminated water, triggered when a state-appointed emergency manager switched the city’s supply in 2014 to save money, also took five years to resolve. 

The resulting agreements with the city, county and Michigan’s environmental protection agency required basic Title VI procedures, such as creating an access plan for people with limited English proficiency and publicizing a grievance process for nondiscrimination complaints. 

And the original petition from 1992? EPA acted 24 years later. The decision on the final full day of the Obama administration was a rare finding of discrimination — but only about the way public participation was impeded, not the state’s pattern of permitting pollution.

It changed nothing about the power plant the community had hoped to stop, which is still operating. Nor did the decision create any requirement for the state’s environmental protection agency to approach permitting differently in the future. “It was kind of a hollow victory,” said Father Philip Schmitter, a sacramental minister at the St. Francis Prayer Center.

“Perhaps conditions in Flint would have been different if at any point since the early 1990s, [EPA’s civil rights office] sent a clear message to [the Michigan agency] that unless it came into compliance with Title VI, EPA was going to withhold federal funds,” attorney Marianne Engelman-Lado, then of Yale University, wrote in a law review piece in 2017. “Unfortunately, the Supreme Court relegated Title VI enforcement largely to federal agencies, and EPA abdicated its responsibility.”

Today, this critic of EPA’s process is on the inside. Engelman-Lado joined EPA in February 2021, one of the Biden administration hires brought in to turn environmental justice efforts around. She helped lead the agency’s Office of Environmental Justice and External Civil Rights when it opened the following year and is now EPA’s deputy general counsel for environmental initiatives.

In an October interview, she said the agency has made progress on civil-rights enforcement — there’s just a lot more to do. The environmental sector had never developed a culture of addressing civil rights, she said.

“It’s like turning around an ocean liner … to change expectations and make that cultural shift,” she said.

Permitting reforms are what the organizations that filed the most recent Flint complaint wanted statewide. The groups, represented by attorneys from Earthjustice and the Great Lakes Environmental Law Center, asked Michigan to substantively assess the cumulative health impacts of pollution in overburdened communities before granting additional industrial permits.

The “watered-down” agreement the state and EPA ultimately signed disregarded months of work at the negotiating table, the groups said in a joint statement.

The Michigan Department of Environment, Great Lakes, and Energy said by email that it believes its permit for the new asphalt plant is protective of public health and accounts for cumulative impacts to the extent that the federal Clean Air Act authorizes that. State law would need to be changed for the agency to “more directly consider environmental justice, equity, and civil rights principles” in its air permitting, it added. It said it was working with legislators on that.

A 2021 letter from EGLE administrators to EPA noted that it granted the asphalt permit because it believed that doing so complied with state and federal laws, but it urged the federal agency to do more to address environmental concerns, review the permit and “provide additional clarity to the States on implementing federal standards in environmental justice communities.” 

Lack of enforcement, meanwhile, has ripple effects. Beyond the impacts to health, it feeds into America’s racial wealth gap. 

The home just north of Flint that Barnes bought in 1968 cost $19,000, the equivalent of roughly $168,000 in today’s money. It’s worth much less now, an estimated $15,000.

That’s only part of her financial loss. She figures she spent $160,000 paying off the loan and improving her home over the decades: new windows, a repaved driveway, kitchen and bathroom updates and two roof replacements.

Homes are a key part of many Americans’ ability to build generational wealth. Barnes had hoped hers would rise in value for her children and grandchildren’s sake. Instead, it’s worth so little that she’s effectively trapped there, unable to make enough from a sale to move away from the pollution and noise. 

“It’s been harmful to her health. It’s been generationally harmful to her family,” said Katherine Walz with the National Housing Law Project. “And then it’s destroyed them economically.”

Andrew Rodriguez Calderón contributed back-end programming and data processing for this story.

This piece was republished from the Bridge Michigan.