In the latest example of state pushback to civil-rights enforcement by the U.S. Environmental Protection Agency, a Texas agency has pulled out of negotiations to resolve complaints alleging its decisions on pollution are racially discriminatory.
EPA, which disclosed the development on its online docket Thursday with a letter dated Wednesday, said it would continue investigating the matters.
That’s exactly what EPA’s case-resolution manual says it should do when negotiations fail. It’s the process required for the agency to decide whether to make a finding of noncompliance and seek to suspend federal funding.
But when negotiations faltered with two Louisiana agencies this spring and the state’s Republican attorney general filed a lawsuit against EPA, the federal agency closed the complaints instead. EPA said in those June closure letters that it would not take further action on the matters.
The Texas complaints were filed by Lone Star Legal Aid, Environmental Integrity Project and Texas’ largest county, asking EPA to intervene over decisions made by Texas’ environmental protection agency. One focused on permitting for a petrochemical plant in Port Arthur, a Gulf Coast community. The other two are about permits allowing concrete batch plants to proliferate in Houston-area communities of color.
“The issues here are so acutely egregious, I’m hopeful the EPA will step up,” said Harris County Attorney Christian D. Menefee, whose office filed one of the concrete batch plant complaints.
A Center for Public Integrity investigation published Wednesday found that EPA was failing to use its full authority under the Civil Rights Act of 1964 after meeting resistance. Title VI of that law bans discrimination based on race, color or national origin by recipients of federal funding. Never in its history has EPA pulled funding over Title VI violations.
The Texas Commission on Environmental Quality, which has a mission of protecting public health and natural resources “consistent with sustainable economic development,” notified EPA in an Oct. 20 letter that it was withdrawing from negotiations that had been intended to resolve the complaints with informal agreements.
TCEQ said it believed EPA’s office handling Title VI complaints has only “limited” authority under the law. It also argued that it complies with federal environmental regulations and therefore can’t be required under Title VI to address unequal pollution burdens by changing how it permits facilities, a common argument EPA disputes.
“EPA has yet to articulate specific expectations or the legal authority on which it bases its expectations,” TCEQ’s letter said.
Citing EPA’s handling of one of the Louisiana complaints, TCEQ contended that the only consistent action would be to close the Texas complaints, too.
One complaint focuses on permitting of a calcined coke facility in a majority Black community in Port Arthur that is choked by air pollution. The other two, about concrete batch plant permitting, say that TCEQ isn’t protecting people’s health. More than 100 such plants are concentrated in Harris County communities of color, one of the complaints said.
Harris County is home to Houston. Neither has zoning regulations, the mechanism that local communities often use to put some distance between homes and industrial facilities. Historically, white neighborhoods in the area protected themselves with deed restrictions on usage, Lone Star Legal Aid’s complainant noted — but those land-use documents were also banning non-white residency. Black residents and other people of color were forced into neighborhoods where industry concentrated.
A Supreme Court ruling and civil-rights law put a stop to racist deed restrictions, but the segregation and unequal pollution exposure they created continues today. That’s the critical context that TCEQ’s permitting doesn’t account for, the complainants argue.
Concrete batch plants, the Lone Star Legal Aid complaint states, are “incentivized by TCEQ to choose these communities over sites in White, more affluent neighborhoods, where restrictions historically insulated these communities from industry encroachment.”
TCEQ proposed changes to its concrete batch plant permitting in the wake of the Title VI complaints. But advocates think it won’t be enough to protect health, especially in places with multiple plants. Menefee, the chief civil lawyer for Harris County, said he is “incredibly disappointed” TCEQ didn’t continue working through the issues with EPA.
“I hope that the EPA does everything in its power to hold TCEQ accountable,” he said.
EPA doesn’t comment on pending Title VI complaints. It pointed to details from its letter when asked about its decision.
A past and present clash on environmental justice
The ways that race, toxic air and historical discrimination intersect in Texas isn’t unusual. Multiple studies have shown that communities of color and low-income residents bear the brunt of health-harming pollution in the United States. Modern-day zoning and permitting by local and state agencies around the country reinforce historical patterns set during the era of legal discrimination.
That’s an example of “disparate impact” discrimination, where seemingly neutral decisions create discriminatory effects. Since 1973, EPA’s Title VI regulation has barred both disparate-impact and intentional discrimination.
The Louisiana lawsuit argues that EPA has no authority over disparate impacts. The Supreme Court has allowed such federal policies to stand in the past, but today’s super majority of more conservative justices might rule differently if the case reaches them.
Environmental justice experts think that’s why EPA closed the Louisiana complaints — in hopes that a federal court will dismiss the lawsuit as a result.
There’s a history of state and local efforts, in and out of the South, to evade civil-rights requirements. But the level of pushback on EPA’s handling of Title VI complaints is new — because for decades, EPA did little under the law.
In a 2015 investigation, Public Integrity found that the agency tossed the lion’s share of complaints without investigating and left communities waiting years for help that rarely came. Few complaints ended with agreements committing funding recipients to changes. And EPA never showed its funding recipients that it was serious about noncompliance by yanking that funding.
After President Joe Biden took office in 2021 with promises to make environmental justice a priority, EPA began accepting more complaints for investigation and reduced delays. But so far, the resolution agreements the Biden-era EPA has struck with state and local agencies to resolve allegations of discrimination don’t require substantive changes to how polluting facilities get approved.
And it still hasn’t withdrawn funding. Whether EPA ultimately seeks to do so in the Texas case will depend on whether it completes the investigation, finds violations and still can’t convince the state agency to voluntarily make changes.
Even if that comes to pass, EPA would have to choose to act. In the waning hours of the Obama administration, EPA closed a 24-year-old complaint against Michigan’s environmental protection agency with a finding of discrimination, a list of recommendations and nothing further.