October 2003 U.S. Commission on Civil Rights Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice U.S. Commission on Civil Rights The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. It is directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. Submit reports, findings, and recommendations to the President and Congress. Issue public service announcements to discourage discrimination or denial of equal protection of the laws. Members of the Commission Mary Frances Berry, Chairperson Cruz Reynoso, Vice Chairperson Jennifer C. Braceras Christopher Edley, Jr. Peter N. Kirsanow Elsie M. Meeks Russell G. Redenbaugh Abigail Thernstrom Les Jin, Staff Director U.S. Commission on Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 voice (202) 376-8116 TTY www.usccr.gov This report is available on disk in ASCII and WordPerfect 5.1 for persons with visual impairments. Please call (202) 376-8110. iii Letter of Transmittal The President The President of the Senate The Speaker of the House of Representatives Sirs: The United States Commission on Civil Rights transmits this report, Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice, pursuant to Public Law 103- 419. This report examines how well four federal agencies—the Environmental Protection Agency, the U.S. Department of the Interior, the U.S. Department of Housing and Urban Development, and the U.S. Department of Transportation—have implemented Executive Order 12,898 and Title VI. Execu- tive Order 12,898 requires federal agencies to collect data on the health and environmental impact of their activities on communities of color and low-income populations, and develop policies incorpo- rating the principles of environmental justice into their programs and activities. In this report the Commission assesses the efforts of these agencies to adopt, promote, and execute policies ensuring that environmental justice is incorporated into their core missions, whether affected communities are provided meaningful participation in environmental decision-making processes, and to what extent these communities have access to scientific data and effective Title VI enforcement procedures. This report, based on Commission hearings, interviews, research, and a review of relevant literature, reveals that while there has been some limited success in implementing Executive Order 12,898 and the principles of environmental justice, significant problems and shortcomings remain. Federal agencies still have neither fully incorporated environmental justice into their core missions nor established ac- countability and performance outcomes for programs and activities. Moreover, a commitment to envi- ronmental justice is often lacking in agency leadership, communities are not yet full participants in environmental decision-making, and there is still inadequate scientific and technical literature on the relationship between environmental pollutants and human health status. Although poor communities and communities of color are becoming more skilled at using Title VI administrative processes to seek recourse and remedies, agencies seldom, if ever, revoke a permit or withhold money from the recipients of federal funding for violating Title VI. Strong administrative enforcement of Title VI is required in light of court decisions limiting access to judicial recourse and remedies under Title VI. Uncertainty about the use and effectiveness of Title VI in protecting the poor and communities of color is created by the absence of final investigative and recipient guidance by EPA. The agency was moving toward finalizing its Title VI guidance at the time the Commission report was drafted, and we look forward to its release. The other agencies, unlike EPA, lacked any comprehensive Title VI investigation and recipient guidance. As a result, the Commission report makes many recommendations; some of the recommendations are directed toward federal agencies while others require congressional action. The report recommends, for example, that federal agencies coordinate and promulgate clear regulations, guidelines, and pro- cedures for investigating, reviewing, and deciding without unnecessary delay Title VI claims, and that federal agencies implement formal Title VI compliance review programs to ensure nondiscrimi- nation in programs and activities receiving federal funding. In addition, Congress should pass a Civil Rights Restoration Act to provide for a private right of action for disparate impact claims under Title VI, as well as § 1983. iv Although Executive Order 12,898 realizes the importance of gathering scientific and technical data, there is inadequate literature on the relationship between environmental pollutants and human health. The Commission report recommends that federal agencies conduct and fund more research on human health and the environment and make data more readily available to affected communities. Addition- ally, federal agencies conducting or funding research on human health and the environment should consider race, ethnicity, national origin, age, gender, and income when examining the environmental and human health effects of environmental decisions. The report finds that the input of communities of color and low-income communities is integral to decision-making, planning, monitoring, problem-solving, and implementation and evaluation of envi- ronmental policies and practices. Low-income and minority communities, however, still do not fully participate in the process because of language and cultural barriers and lack of access to information. Federal agencies must make early and meaningful public participation in siting and permitting deci- sions a reality for overburdened communities of color and poor communities. This may be facilitated by making resources available to communities for outreach workers and translation services when English is not the primary language in the affected communities, and by federal agencies and their funding recipients conducting assessments to determine to what extent their programs and initiatives result in increased public participation. Stringent enforcement of public participation should be guar- anteed in legislation with requirements ensuring that all affected parties are at the table with adequate public support. Federal agencies must more fully integrate environmental justice into their core missions and put in place evaluation criteria and accountability measures to assess policies and programs. Without more concerted effort on the part of federal agencies to promote and ensure environmental justice, and ap- propriate congressional action, minority and low-income communities all across this nation will con- tinue to bear the unfair risk of exposure to environmental hazards. For the Commissioners, Mary Frances Berry Chairperson v Acknowledgements The Commission hearings were organized and the report written under the supervision of Deputy Gen- eral Counsel Debra A. Carr. Pre-hearing research, planning, and investigation were conducted by attor- ney-advisors Peter Reilly,* Jenny Park, Deborah Reid, and Kim Norris,* with assistance from Emma Monroig. Office of General Counsel secretary Pam Moye provided clerical support for the hearings. The report was written by attorney-advisors Jenny Park and Deborah Reid, and senior attorney-advisor Deborah Vagins. Former Office of General Counsel law interns Hillary E. Browne, Gregory Francisco Gillett, Gilbert Gonzales, Elaine Orosco-Hammond, Kristopher Kirkwood, Tracy Lashley, and Erika Thomas provided editing and research assistance. Editorial Review Board members for the report were Latrice Foshee, Farella Robinson, and Constance M. Davis. Dawn Sweet, editor, prepared the report for publication. The Commission acknowledges with gratitude the tremendous contributions of the hearing panelists and others who provided their expertise to this important project. * No longer with the Commission [blank page] vii Contents Chapter 1: Introduction................................................................................................................................ 1 Chapter 2: What Is Environmental Justice? ........................................................................................... 13 Communities Affected by Environmental Decision-Making ...................................................................... 17 Adverse Health Impact.................................................................................................................................. 20 Environmental Justice and Economic Opportunity.....................................................................................