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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.
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