Public Lab Research note

A Quick Note on Title VI

by caitlion | April 21, 2022 18:34 21 Apr 18:34 | #30548 | #30548

This is a transcript of a conversation between myself and the Game Over Formosa team. The transcript has been edited for clarity.

SLK= Stevie Lewis Klass CKON= Caitlion Kenney O’Neill

SLK: Okay. Let's start with the Title VI stuff. Caitlion?

CKON: Sounds great. Alright, so let's have a quick intro to what Title VI is. Title VI is part of the Civil Rights Act. Title VII is the Equal Rights Act, which prohibits private discrimination on the basis of sex. and race, and color, and some other metrics. Title VI prohibits discrimination on the basis of race, color, or national origin for any facility or agency that receives federal funding. Generally, this refers to states and specifically here, it refers to the LDEQ, since the way that the program works is EPA gives money to Louisiana to fund their own environmental programs. So therefore, LDEQ receives federal funds, and they are subject to Title VI regulations.

So while this is this on paper, in practice, it just hasn't been happening for nearly the whole time that Title VI has existed. It just hasn't been enforced correctly. There's been a [judicial] decision that you have to show discriminatory intent. Basically, like as a smoking gun, you'd have to get LDEQ saying like, “Yeah, we're not taking the calls in this area, because people are black.” That's discriminatory intent, it's very hard to prove; it's a very high burden. And you couldn't say to the EPA, “They're violating my civil rights-investigate!” They just weren't doing it. This has changed in this EPA administration.

So a few things that have changed, the biggest one is that instead of just discriminatory intent, they are allowing you to show discriminatory effect, which is huge! That's much easier to do; there are a lot of ways to do that. And this is where you can point to numbers and be like, “Look, this 1000 person standard that you're requiring***, it has a discriminatory effect.” Because it's St James Parish, you know, a lot of the pollution is out there in rural areas, we just don't have enough population density. And because these are environmental justice communities, and because the EPA recently identified these communities as a priority, we have a very strong pathway to make a Title VI complaint, if we wanted to, about the 1000 person calls.

So Title VI starts a pathway where you don't have to be an attorney to make the complaint. And it's not a court process. It's an agency process. So currently, it's fairly easy. You'd have to put the complaint in writing, say what's happening, it's really simple process to make the complaint. And then EPA will start investigating on the state level, they'll ask the state for their response, they'll start doing investigations. And then if it's a permit, for example, then they can start requiring you need to show some mitigation plans, and you need to show you need to show a justification of why you're doing this. So they have a very robust system in place to do this now. It's happening with a couple permits one of them in St. John. It's a huge, huge update. And it's not very procedurally or administratively hard to make one of these complaints. EPA is doing the heavy lifting. If you provide them with enough information, they'll go from there. So when I learned about Title VI in my environmental law class last year, the feeling was “Title VI, it's not going to happen. It just doesn't do anything.” But now it does. So- wow! Huge reversal..

***From the best estimate of Scott Eustis, LDEQ will not meaningfully respond to a complaint unless they get about 1000 reports. More than 5% of the population of St. James Parish would need to report on any given incident to meet LDEQ’s implied requirement.


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