Environmental Justice: Origins, Background, and Website Choice Issues – Half IV: EPA Steerage – The Toolkit

Environmental justice is not a new concept, but it does promise new and energetic attention in the Biden administration. On his first day in office, Mr. Biden issued an executive order calling on the federal government to promote and prioritize environmental justice. Mr. Biden has selected a dedicated attorney to head EPA who has promised a clear emphasis on environmental justice concerns.

As a result, it is a good time to understand the legal basis of environmental claims, the current EPA approach to investigating environmental justice complaints, and actions that can be taken in site selection to minimize or enhance serious environmental justice claims remove.

The article contains five parts:

Part I: The Statute

Part II: The Executive Order and EPA Regulations

Part III: EPO Guidelines – The Draft Revised Investigation Guidelines for 2000

Part IV: EPA Guidance – The Toolkit

Part V: Considerations for Site Selection

Part IV: EPA Guidance – The Toolkit

On January 18, 2017, the EPA published a “Dear Colleague” letter to present Chapter 1 of its Compliance Toolkit and to specify existing laws and guidelines for promoting and supporting compliance with federal civil rights laws. After a reminder that all EPA grant recipients have a positive commitment to complying with federal civil rights obligations and that EPA has a duty to ensure compliance, the EPA suggests that civil rights and environmental law enforcement be accomplished in a manner that is compatible with the EPA can provide sustainable economic development that ensures the protection of human health and the environment.

In general, the toolkit seeks to explain what constitutes willful discrimination and differential effects, and to provide the evidence necessary to establish such claims based on the case law cited therein. In contrast to the 2000 Draft Revised Investigation Guide, which detailed the EPA’s investigation and decision-making processes and procedures, the Toolkit is primarily a summary of the legal standards that the EPA will use in investigating and resolving complaints .

EPA defines willful discrimination (or differential treatment) as when a recipient intentionally treats people differently or otherwise knowingly harms them because of their race, color, national origin, disability, age, or gender. Willful discrimination requires evidence that a contested act was motivated by intent to discriminate, but does not require evidence of bad faith, will or motive.

To determine whether there has been such discrimination, the EPA will evaluate “the entirety of the relevant facts” including direct, circumstantial, and statistical evidence to determine whether there has been willful discrimination, citing Washington v Davis, 426, US 229, 242 (1976). EPA recognizes that direct evidence is often not available and as a result the EPA will view such evidence as statements from decision-makers, the historical background of the events in question, the sequence of events leading to the decision in question as a departure from the standard procedure (e.g. failure factors normally considered), legislative or administrative history (e.g. meeting minutes), predictability of the consequences of the action, and a history of discriminatory or segregated behavior, citing Village of Arlington Heights v Metropolitan Housing Redevelopment Corp., 429, US 252 , 266-68 (1977).

The EPA also stated that deliberate discrimination can be based on evidence of different effects combined with other motivational evidence such as the above evidence. The EPA relied on Elston v. Talladega County Board of Education, 997 F.2d 1394, 1406 (Cir. 11th 1993), which states, “A discriminatory intent can impact a story significantly by demonstrating factors such as factors discriminatory civil servant, acts, procedural and substantive deviations from the norms that the decision-maker generally follows, and discriminatory statements in the legislative or administrative history of the decision. “Hence, different effects are” not irrelevant “and can be used with other relevant facts to prove willful discrimination. Arlington Heights, 429 U.S. at p. 265.

The EPA also proposed to investigate intentional discrimination allegations using the language used in Title VII cases and published in McDonnell Douglas Corp. against Green, 411 US 792 (1973) explained “Last Shifting Analytic Framework”. In this context, the complainant has to bear the initial burden of establishing a prima facie case of racial discrimination. According to the EPO, this can be done by demonstrating that: the appellant is a member of a protected class; The complainant was entitled to the recipient’s program, activity or service. The complainant was excluded from, or otherwise negatively treated, this program, activity or service. and a person who was similar in qualifications but did not belong to the complainant’s protected group was treated better. When this is shown, the burden shifts to the recipient in order to identify a legitimate, non-discriminatory reason for the policy or decision being complained about and the difference in treatment.

The EPA defines different effects (or discriminatory effects) as those that occur when a recipient engages in a face-neutral process or practice that has a materially adverse (harmful) and disproportionate effect because of their race, color, or national origin. In a mixed-impact case, the focus is more on the consequences of the recipient’s policies or decisions, including failure to take action, than on the recipient’s intent.

The EPA offers only a cursory discussion of a different impact analysis. It states that the EPA must produce prima facie evidence by identifying the specific policy or practice involved. Identify adversity or harm; Identify inequality; and establishing causality.

Adversity exists when “a factual investigation determines that the nature, magnitude or probability of the impact is sufficient to cause actionable damage”. The toolkit does not define what is harmful to many to be implementable. In order to analyze the disparity, the EPA analyzes whether a disproportionate share of the adversity / harm is borne by people because of their race, skin color or national origin. A general measure of inequality compares the proportion of persons in the protected class who are affected by the policy or decision being challenged and the proportion of persons in the protected class who are adversely affected. When using statistics to demonstrate disparity, the disparity must be statistically significant.

When prima facie, the EPA needs to determine whether the recipient can provide “substantial legitimate justification” for the policy or practice being complained about and whether there are comparatively effective alternative practices that would result in less adverse effects (i.e., are there less discriminatory alternatives?).

The toolkit also makes two important points. First, it is made clear that compliance with an NAAQS “would not be sufficient to determine that no adverse effects would occur for the purposes of Title VI”. This removed the rebuttable presumption by Select Steel and the draft revised investigation guidelines from 2000. Second, it is not up to the complainants to prove adversity. The EPA takes responsibility for conducting an investigation into the allegations to determine if there are any adverse effects.

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