Gone Before Its Time: The Untimely Demise of Environmental Title VI Challenges
Clara Swetnam-Burland
In Flint, Michigan, a city already plagued by a pervasive clean water crisis,[1] many of the city’s Black and low-income residents face another equally dangerous threat to their health.[2] In 2021, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) granted the Ajax Corporation permission to build an asphalt plant near the city border, in the neighboring Genesee Township’s only majority-Black census tract.[3] Almost 3,000 people live within one mile of this plant, 86% percent of whom identify as people of color, and 77% of whom are Black.[4] Pollution from this plant will disproportionately affect Black and low-income residents who are likely to suffer increased rates of skin irritation, respiratory issues, and headaches, central nervous system problems, liver damage, reproductive defects, and cancer.[5]
The plant’s location is a recent example of a long history of pollution affecting the Black and low-income residents of Genesee Township and Flint. For years, Genesee Township has concentrated industrial polluters in the only majority-Black census tract.[6] None of the majority-White areas is zoned for heavy industry.[7] This pattern represents environmental injustice, i.e., an instance of racial minorities and low-income people suffering disproportionately high environmental and health risks.[8]
Hoping to prevent the construction of this plant, advocacy groups filed an environmental injustice claim under Title VI of the Civil Rights Act of 1964.[9] Title VI prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national origin in their programs or activities.[10] In 1994, President Clinton extended Title VI by issuing an executive order instructing federal agencies to “make achieving environmental justice part of its mission.”[11] He issued a memorandum stating that “in accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial assistance . . . do not . . . use criteria, methods, or practices that discriminate on the basis of race, color, or national origin.”[12]
While the text of Title VI unambiguously authorizes the Environmental Protection Agency (EPA) to investigate instances of intentional racial discrimination,[13] both the Department of Justice (DOJ) and the Environmental Protection Agency (EPA) have issued regulations to implement Title VI.[14] These regulations allow for the investigation of claims based on disparate impact evidence as well as evidence of intentional racial discrimination.[15] That means, in theory, plaintiffs could prevail on Title VI claims if they could prove that the activities of a recipient of federal funds had a racially discriminatory effect.[16] Plaintiffs could use statistical evidence to show minority communities faced disproportionate levels of environmental harm, rather than needing to prove environmental injustice resulted from intentional discrimination.[17]
Although under-utilized,[18] Title VI enforcement remained a promising tool for reducing environmental degradation affecting minority communities.[19] In 2022, the EPA “recognize[d] that it was time to use the full extent of its enforcement authority under federal civil rights laws, including Title VI.”[20] Environmental activists hoped that Title VI could finally realize its potential as a weapon in the fight for environmental justice.[21] This hope became action when the EPA began an investigation into whether the Louisiana Department of Environmental Quality (LDEQ) violated Title VI by permitting continued industrial development in the majority-Black St. John Baptist Parish,[22] part of Louisiana’s infamous “cancer alley.”[23] Louisiana responded to the investigation with a lawsuit,[24] the results of which could spell the end of this kind of Title VI claim.
In Louisiana v. EPA, the Western District of Louisiana granted a temporary injunction preventing the EPA from using disparate impact evidence to prove that LDEQ violated Title VI by granting permits for industrial development in Louisiana’s majority black communities.[25] The following summer, the court made this injunction permanent, holding that no one in the state could use disparate impact evidence to support any Title VI claims.[26] The court held the text does not “unambiguously authorize” the use of disparate impact evidence, and so the use of such evidence violates the Spending Clause of the Constitution.[27]
In effect, this ruling, if adopted by other courts, means that a Title VI claim cannot be supported by evidence showing that minority communities are disproportionately burdened by environmental harms; the EPA can only bring claims when they have evidence that these communities are being targeted by intentional racial discrimination.[28] While statistics proving racial disparity can be used as evidence of intentional racial discrimination, “statistics alone will seldom prove discriminatory intent.”[29] The DOJ notes that “there may be cases where statistics establish ‘a clear pattern, unexplainable on grounds other than race,’ but such cases are rare.”[30] It is not enough for these statistics to demonstrate a “devastating” pattern of disparate racial impact;[31] they must show “that some ‘invidious discriminatory purpose’ is causing the disparate outcomes.[32] This ruling essentially sounds the death knell of Title VI as a tool for environmental justice. Because “no state has policies that explicitly announce discriminatory intent,” it is almost impossible to prove that the location of pollution producing industries in minority communities is intentional.[33] Therefore, this unchallenged District Court ruling has reduced Title VI from a potentially powerful tool for remedying environmental harm to a useless one.
While this trial court decision is only binding in Louisiana, it has already had a much wider effect, reaching as far as Flint. In August 2023, the EPA and EGLE backed down from the Title VI resolution agreement that would have protected the local Black and low-income residents of Genesee Township from the Ajax plants’ pollution.[34] While the EPA had originally planned to implement a “transformational framework for addressing environmental justice issues,” the agency changed course, signing off on an agreement that made no substantive changes to the state’s air permitting program and did nothing to protect the already overburdened community from pollution exposure.[35] Lawyers and advocates working on this resolution in Flint attribute this decision to the Louisiana ruling, describing how this change of heart began “within days of the EPA dropping its Cancer Alley investigation.”[36] In the following months, the EPA also dropped a similar Title VI investigation in Texas.[37]
The EPA appears to be abandoning these cases for fear that a suit resulting from one of these investigations will reach a hostile Supreme Court,[38] which could ban the use of disparate impact evidence in environmental investigations across the country.[39] This result, however, may still come to pass even without the Supreme Court’s involvement. In April 2024, Attorneys General from 23 states petitioned the EPA to remove the disparate impact standard from their regulations.[40] If the Trump Administration’s EPA caves to this demand or the Supreme Court ultimately holds disparate impact evidence may not be used in these proceedings, Title VI will effectively become useless as a tool for environmental justice.
A country-wide attack on Title VI enforcement could be the next in a series of actions the Trump Administration has already taken to eliminate environmental justice as a priority of the federal government. On February 2nd, 2025, the Attorney General issued a memorandum rescinding former President Biden’s memoranda promising to prioritize environmental justice.[41] In March, the Trump Administration followed this action by ordering the EPA to close all of its regional environmental justice offices.[42]
These changes, combined with the diminished utility of Title VI enforcement, mean that members of minority groups who experience environmental injustice have fewer and fewer avenues to seek positive change. As a result, low-income and minority residents from Flint and Genesee Township to Louisiana, will continue to be exposed to, and suffer the results from, more than their fair share of pollution. No matter how overwhelming the evidence of disparate impact, they will have no recourse unless a corporate officer or state official makes a public statement that racial animus is behind their development plans, or statistics demonstrate not only a racially discriminatory impact, but a discriminatory intent.
[1] U.S. Commission on Civil Rights, Environmental Justice: Examining the Environmental Protection Agency’s
Compliance and Enforcement of Title VI and Executive Order 12898, 104 (Sept. 2016),
https://www.usccr.gov/files/pubs/2016/Statutory_Enforcement_Report2016.pdf.
[2] Timna Axel, Flint Groups React to Opening of Toxic Ajax Asphalt, Earthjustice(Apr. 17, 2023), https://earthjustice.org/press/2023/flint-groups-react-to-opening-of-toxic-ajax-asphalt-plant.
[3] Id.
[4] Flint residents file civil rights complaint over asphalt plant approval, National Housing Law Project (Dec. 15, 2021) https://www.nhlp.org/wp-content/uploads/Flint-HUD-complaint-2021.pdf.
[5] U.S. Environmental Protection Agency, Fact Sheet: Final Rule to Reduce Toxic Air Emissions from
Asphalt Processing and Asphalt Roofing Manufacturing Facilities, EPA (Feb. 28, 2003),
https://www.epa.gov/sites/default/files/2016-03/documents/2003_final_factsheet_asphalt.pdf.
[6] Defending Flint, Michigan from a Toxic Asphalt Plant, Earthjustice (Jan. 19, 2023), https://earthjustice.org/case/defending-flint-michigan-from-a-toxic-asphalt-plant.
[7] Id.
[8] Robert D. Bullard, Dismantling Environmental Racism in the USA, 4 Int’l J. of Just. and Sustainability, 5, 6 (1999).
[9] Flint residents file civil rights complaint over asphalt plant approval, supra note 4.
[10] 42 U.S.C.§ 601 §§ 2000d.
[11] Exec. Order No. 12,898, 59 Fed. Reg. 32 (Feb. 11, 1994).
[12] Memorandum from President William Clinton to The Heads of All Departments and Agencies (February 11, 1994) (on file with the EPA).
[13] Louisiana v. United States EPA (Louisiana I), 712 F. Supp. 3d 820, 860 (W.D. La. 2024) (granting preliminary injunction); Louisiana v. United States EPA (Louisiana II), No. 2:23-CV-00692, 2024 U.S. Dist. LEXIS 151359 (W.D. La. Aug. 22, 2024)(granting permanent injunction prohibiting the use of disparate impact evidence in Title VI claims).
[14] 28 C.F.R. § 42.104(b)(2) (stating that “recipients of federal funds cannot utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination.”); 40 C.F.R. 7.35. (stating that “a recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex.”).
[15] Id.
[16] Id.
[17] Louisiana I, 712 F. Supp. 3d at 862.
[18] Claire Glenn, Upholding Civil Rights in Environmental Law: The Case for Ex Ante Title VI Regulation and Enforcement, 41 N.Y.U. Rev. L. & Soc. Change 45, 51 (2017)(describing how, at the time of publishing, the EPA had never found a civil rights violation under Title VI).
[19] Michael Phillis, Republican AG’s attack Biden’s EPA for pursuing environmental discrimination cases, AP News
, (Apr. 17, 2024, 6:11pm) https://apnews.com/article/epa-republican-civil-rights-environment-discrimination-d49d40dedce09683c57b42647f3b05ce.
[20] Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions, EPA (Aug. 2022) https://www.epa.gov/system/files/documents/2024-01/ej_and_cr_permitting_faqs.pdf.
[21] Phillis, supra note 19.
[22] Lisa Friedman, Judge Blocks E.P.A. From Using Civil Rights Law in Pollution Case, N.Y. Times (Aug. 23, 2024). https://www.nytimes.com/2024/08/23/climate/epa-civil-rights-climate-justice.html.
[23] Cancer Alley is the nickname for an 85-mile stretch between New Orleans and Baton Rouge which is one of the most polluted areas in the country. The majority-Black residents who live there are 50 times more likely to develop cancer than the average American. Delany Nolan, The EPA Is Backing Down From Environmental Justice Cases Nationwide, The Intercept, (Jan. 19, 2024, 7:02pm) https://theintercept.com/2024/01/19/epa-environmental-justice-lawsuits/.
[24] Louisiana I, 712 F. Supp. 3d at 820.
[25] Id. at 862.
[26] Louisiana II, 2024 U.S. Dist. LEXIS 151359 at *9.
[27] Louisiana I, 712 F. Supp. 3d at 862 (holding that the Spending Clause only prohibits enforcement of any regulations that are not ambiguously established in the statutory text).
[28] Id.
[29] Section VI- Proving Intentional Racial Discrimination, U.S. Dep’t of Just., https://www.justice.gov/crt/fcs/T6Manual6#PID (April 16, 2024).
[30] Id. (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
[31] Id. (quoting Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir. 1980)).
[32] Id.
[33] Nolan, supra note 23.
[34] Erin Fitzgerald, EGLE, EPA Retreat from Civil Rights Agreement with Flint Groups, Earthjustice, (Aug. 10, 2023) https://earthjustice.org/press/2023/egle-epa-retreat-from-civil-rights-agreement-with-flint-groups.
[35] Id.
[36] Nolan, supra note 23.
[37] Id.
[38] See West Virginia v. EPA, 597 U.S. 697 (2022); Sackett v. EPA, 598 U.S. 651 (2023).
[39] Nolan, supra note 23.
[40] Friedman, supra note 22.
[41] Memorandum from The Attorney General to All Department Employees (February 5, 2025) (on file with the Department of Justice).
[42] Lisa Friedman, E.P.A Plans to Close All Environmental Justice Offices, N.Y. Times (Mar. 11, 2025). https://www.nytimes.com/2025/03/11/climate/epa-closure-environmental-justice-offices.html