ST. LOUIS – Republican attorneys general attacked the Biden administration’s stated goal of pursuing environmental justice, calling it a form of “racial engineering.‘’
Florida Attorney General Ashley Moody and 22 other GOP officials asked the EPA Tuesday to stop using civil rights laws to investigate actions and policies that result in harm to Black people or other minority groups — even unintentionally — more than white residents.
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“The EPA should be focusing on enforcing the environmental laws passed by Congress, not so called ‘environmental justice,’ which is a euphemism for Biden’s extreme agenda,‘’ Moody said. Their petition demands that the EPA change decades-old rules, though the civil rights law could still be used where discrimination was intentional.
The petition is unlikely to convince the Biden administration to back away from an issue EPA Administrator Michael Regan has taken pains to highlight. Regan, for example, went on a “Journey to Justice” tour to places like the industrial stretch of Louisiana typically called Cancer Alley to show how majority-Black communities living near polluters were being hurt. To address such harms, the EPA has turned in part to a section of the Civil Rights Act of 1964 called Title VI to open investigations and pressure states to make changes.
The petition in an election year is the latest in Republicans' expanding fight against federal policies aimed at addressing historic racial discrimination and they believe courts are on their side. They cited the recent Supreme Court decision that eliminated affirmative action in college admissions, arguing it shows the court is wary of race-conscious federal policies.
“Because the EPA's regulations prohibit any action that results in racial disparities, a funding recipient must set demographic targets for their projects to maintain compliance," the attorneys general wrote. “This kind of allocation based on group membership is a constitutional nonstarter.”
The Florida attorney general's office, which took the lead on the petition, said the states would sue if the EPA does not amend its rules.
EPA declined to comment, citing ongoing litigation around the issue.
Title VI aims to prevent discrimination in programs that receive federal funds. The agency can investigate allegations of discrimination, publish their findings and pressure states and local governments to agree to change policies. The federal government can yank funding if they find a Title VI violation.
Debbie Chizewer, managing attorney in the Midwest office at the environmental group Earthjustice, said Title VI is part of the country's historic fight against discrimination and is still a critical tool. Elected officials across the county permitted numerous polluting factories, chemical plants and refineries near minority communities that now are burdened with the effects, including poorer health, lower property values and economic blight.
“I think it is a perversion of our civil rights laws to say otherwise, to say that you can't account for these past harms by creating policies that protect communities that are disproportionately harmed,” she said.
Previously, Title VI has been a relatively weak environmental weapon, rarely resulting in significant changes to environmental policy. Under the Biden administration, however, environmental and civil rights groups were hopeful it could be used to do more.
Those groups asked the EPA to investigate Louisiana's regulation of air pollution, arguing that it disproportionately hurt majority-Black communities near heavy industry. They highlighted the Denka Performance Elastomer plant that makes synthetic rubber and emits harmful chloroprene. It's located a half-mile from an elementary school. The agency agreed to investigate and released initial findings saying there was evidence of discrimination.
But before the state agreed to any changes, the EPA dropped its investigation. The end came soon after Louisiana sued the agency, arguing that focusing on policies that may harm one group more than another but weren't intentionally discriminatory went too far.
That lawsuit has so far seen success. In January, a federal judge in Louisiana put a temporary halt on the EPA's power to investigate discrimination that had a so-called “disparate impact.” A final decision in the case hasn't come yet.
Environmental groups have worried that the EPA's move in Louisiana amounts to a pullback on the Biden administration's commitment to fighting environmental discrimination.
EPA officials are wary of unfavorable court rulings and a conservative Supreme Court that has already curtailed its regulatory power. The Supreme Court restricted the EPA’s authority to fight air and water pollution — including a landmark 2022 ruling that limited the EPA’s authority to regulate carbon dioxide emissions from power plants that contribute to global warming.
Regan said earlier this month that he believes strongly in using Title VI to fight environmental discrimination, but it's complicated.
“It is not just on this issue, we face headwinds in the courts on a lot of issues,” Regan said. He added that the EPA is trying to ensure every action it takes can withstand a court challenge.
But the agency has other options to hold polluters accountable, he said. Recently, for example, the EPA finalized new, tougher, emissions limits for more than 200 chemical plants, including the Denka facility under scrutiny in Louisiana.
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