The Systematic Exclusion of Complainants and Impacted Communities in EPA External Civil Rights Compliance Office's Title VI Resolution Process: Recommendations for ECRCO and States

• Author: Maxine Walters
• Position: Georgetown University Law Center, J.D. 2021; University of Alabama, B.A. 2018
• Pages: 527-542

The Systematic Exclusion of Complainants and

Impacted Communities in EPA External Civil

Rights Compliance Office’s Title VI Resolution

Process: Recommendations for ECRCO and States

MAXINE WALTERS*

ABSTRACT

The Environmental Protection Agency’s (“EPA”) Office of External Civil

Rights Compliance’s (“ECRCO”) history of failure to adequately enforce Title

VI of the Civil Rights Act of 1964 (“Title VI”) has been the subject of publica-

tions and lawsuits. Those who file a Title VI complaint with ECRCO are often

excluded from any significant role beyond reporting in the complaint resolution

process. Complainants’ inclusion is often discretionary (if at all). Resolutions

are primarily undertaken between those in violation of the law and EPA. Such

resolutions are usually voluntary and inadequately enforced. This Note advo-

cates for a greater degree of formal inclusion of complainants and impacted

communities in Title VI cases, with a specific focus on environmental racism

cases where an EPA funding recipient has violated Title VI against a commu-

nity. To accomplish this goal, this Note advocates for an adoption of elements

of EPA’s Superfund Portland Harbor Community Involvement Plan and

Connecticut’s recently revised environmental justice statute as a framework for

increased, structured complainant involvement in ECRCO’s complaint resolu-

tion process. This Note references the Title VI lawsuit filed by residents of

Uniontown, Alabama as a case study for application of this argument and

acknowledges the barrier of the current gaps in Title VI enforcement by EPA

and individual states.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528

I. External Civil Rights Compliance Office’s Role in Enforcing Title VI. . . 528

II. ECRCO’s Failure to Adequately Enforce Title VI . . . . . . . . . . . . . . . . . 530

III. Current Role of Complainants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532

IV. Community Involvement Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535

A. Superfund CIP Framework and Key Differences . . . . . . . . . . . . . . 535

* Georgetown University Law Center, J.D. 2021; University of Alabama, B.A. 2018. © 2023,

Maxine Walters.

527

B. Proposed Adoptions and Objective Analyses . . . . . . . . . . . . . . . . . 536

C. Uniontown, Alabama Case Study . . . . . . . . . . . . . . . . . . . . . . . . . 537

V. State Enforcement of Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542

INTRODUCTION

When an individual files a complaint under Title VI of the Civil Rights Act of

1964 (“Title VI”) with the Environmental Protection Agency (“EPA”) alleging

that a recipient of EPA funds has discriminated based on a protected trait, they do

not receive the same rights and opportunities we think of when someone files a

lawsuit. Instead, they submit their complaint to the Office of External Civil

Rights Compliance (“ECRCO”). Thereafter, the complainant’s job is essentially

done. Whether the discrimination is remedied –– and what that remedy consists

of –– is largely determined by ECRCO and the actor accused of discrimination.

ECRCO provides little formal opportunity for the involvement of complainants

and others impacted by the alleged discrimination. Part I of this Note provides

background information regarding how ECRCO fits into the Title VI framework.

This includes the legal theories and rights of action that litigants may pursue. Part

II discusses past failures and criticisms of ECRCO, including: EPA’s failure to

resolve cases in a timely manner and the lack of complainant and community

involvement in the resolution process. Part III situates the current role of complai-

nants within the recent developments announced by ECRCO in response to wide-

spread criticism. Part IV proposes some improvements, and Part V addresses the

topic of enforcement on the state level. Specifically, Part IV advocates for the

implementation of community involvement plans by reference to EPA’s

Superfund Portland Harbor Community Involvement Plan. Part V points to

Connecticut’s environmental justice statute as a prototype. Both Parts IV and V

reference the Title VI environmental racism lawsuit filed by residents of

Uniontown, Alabama in 2013 as an illustration of the issues caused by ECRCO’s

current procedures and as a sample application of this Note’s recommendations.

I. EXTERNAL CIVIL RIGHTS COMPLIANCE OFFICE’S ROLE IN ENFORCING TITLE VI

Title VI prohibits recipients of federal funds from discriminating on the basis

of race, color, or national origin.

1

42 U.S.C. § 2000d; U.S. ENV’T PROT. AGENCY, EXTERNAL C.R. COMPLIANCE OFF. (TITLE VI),

https://perma.cc/7TM7-24M5 (last visited Feb. 26, 2022).

ECRCO is responsible for enforcing Title VI

compliance from applicants and recipients of EPA funds.

2

ECRCO was originally

part of EPA’s Office of Civil Rights (“OCR”) but became a separate office in

December 2016.

3

EPA claims this was done to “strengthen the agency’s ability to

1.

2. EXTERNAL C.R. COMPLIANCE OFF., supra note 1.

3. Id.

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