Environmental Justice: Origins, Background, and Site Selection Considerations – Part IV: EPA Guidance – The Toolkit

Environmental justice is not a new concept, but it is one that promises to receive renewed and vigorous attention in the Biden Administration. On his first day in office, Mr. Biden issued an Executive Order requiring the federal government to advance and prioritize environmental justice. Mr. Biden has selected a committed advocate as the head of EPA who has promised a pronounced emphasis on environmental justice concerns.

As a result, it is a good time to understand the legal underpinnings of environmental justice claims, the current EPA approach to investigating complaints regarding environmental justice, and steps that may be taken during site selection to minimize or eliminate serious claims regarding environmental justice.

The article contains five parts:

Part I: The Statute

Part II: The Executive Order and EPA’s Regulations

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part IV: EPA Guidance – The Toolkit

Part V: Considerations in Site Selection

Part IV: EPA Guidance – The Toolkit

On January 18, 2017, EPA issued a “Dear Colleague” letter to introduce Chapter 1 of its Compliance Toolkit and clarify existing law and policy to promote and support compliance with federal civil rights laws. After a reminder that all recipients of EPA financial assistance have an affirmative obligation to comply with federal civil rights obligations and that EPA has a duty to ensure compliance, EPA suggests that enforcement of civil rights laws and environmental laws can be achieved in a manner consistent with sustainable economic development and which ensures the protection of human health and the environment.

Generally, the Toolkit attempts to explain what constitutes intentional discrimination and disparate impact and the proof necessary to establish such claims based on the case law cited therein. Unlike the 2000 Draft Revised Investigative Guidance, which detailed EPA’s investigation and decision-making process and procedures, the Toolkit is primarily a summary of legal standards which EPA will use in investigating and resolving complaints.

EPA defines intentional discrimination (or different treatment) as occurring when a recipient intentionally treats individuals differently or otherwise knowingly causes them harm because of their race, color, national origin, disability, age or sex. Intentional discrimination requires a showing that a challenged action was motivated by an intent to discriminate but does not require showing bad faith, ill will, or evil motive.

To determine if such discrimination exists, EPA will evaluate the “totality of the relevant facts” including direct, circumstantial, and statistical evidence to determine whether intentional discrimination has occurred, citing Washington v. Davis, 426 U.S. 229, 242 (1976). EPA acknowledges that direct proof is often unavailable and, as a result, EPA will consider such evidence as statements by decision makers, the historical background of the events in issue, the sequence of events leading to the decision in issue, a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), the foreseeability of the consequences of the action, and a history of discriminatory or segregated conduct, citing Village of Arlington Heights v. Metropolitan Housing Redevelopment Corp., 429 U.S. 252, 266-68 (1977).

EPA also stated that intentional discrimination can be based on a showing of disparate impact coupled other evidence of motive, such as the evidence noted above. EPA relied on Elston v. Talladega County Board of Education, 997 F.2d 1394, 1406 (11th Cir. 1993), which stated: “Discriminatory intent may be established by evidence of such factors as substantial disparate impact, a history of discriminatory official actions, procedural and substantive departures from the norms generally followed by the decision-maker, and discriminatory statements in the legislative or administrative history of the decision.” Thus, disparate impact is “not irrelevant” and can be used with other pertinent facts to prove intentional discrimination. Arlington Heights, 429 U.S. at p. 265.

EPA also suggested that it may analyze claims of intentional discrimination using the “burden shifting analytic framework” utilized in Title VII cases and explained in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the complainant must carry the initial burden of establishing a prima facie case of racial discrimination, which EPA stated may be done by showing that: the complainant is a member of a protected class; the complainant was eligible for the recipient’s program, activity or service; the complainant was excluded from that program, activity or service or was otherwise treated in an adverse manner; and an individual who was similarly situated with respect to qualifications, but was not in the complainant’s protected group, was given better treatment. If shown, the burden then shifts to the recipient to establish a legitimate, non-discriminatory reason for the challenged policy or decision and the different treatment.

EPA defines disparate impact (or discriminatory effect) as occurring when a recipient uses a facially neutral procedure or practice that has a significantly adverse (harmful) and disproportionate effect based on race, color, or national origin. In a disparate impact case, the focus is on the consequences of the recipient’s policies or decisions, including the failure to take action, rather than the recipient’s intent.

EPA provides only cursory discussion of a disparate impact analysis, saying that EPA must establish a prima facie case by identifying the specific policy or practice at issue; establishing adversity or harm; establishing disparity; and establishing causation.

Adversity exists when “a fact specific inquiry determines that the nature, size, or likelihood of the impact is sufficient to make it an actionable harm.” The Toolkit does not define what harms many be actionable. To analyze disparity, EPA analyzes whether a disproportionate share of the adversity/harm is borne by individuals based on their race, color, or national origin. A general measure of disparity compares the proportion of persons in the protected class who are adversely affected by the challenged policy or decision and the proportion of persons not in the protected class who are adversely affected. When demonstrating disparity using statistics, the disparity must be statistically significant.

If the prima facie case is established, EPA must then determine whether the recipient can articulate a “substantial legitimate justification” for the challenged policy or practice and determine whether there are any comparably effective alternative practices that would result in less adverse impact (that is, are there less discriminatory alternatives?).

The Toolkit also makes two important points. First, it makes clear that compliance with a NAAQS “would be insufficient … to find that no adverse impacts are occurring for purposes of Title VI.” Thus, the rebuttable presumption established by Select Steel and the 2000 Draft Revised Investigative Guidance was eliminated. Second, complainants do not bear the burden of proving adversity. EPA assumes the responsibility for conducting an investigation of the allegations to determine if there is an adverse impact.

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