This post was originally published in Word In Black.
By: Willy Blackmore
While President Biden’s lone term in office will run through January 19, the resignation of Environmental Protection Agency administrator Michael S. Regan, who left his post at the end of December, in many ways marks the end of a too-short — and ultimately failed — experiment in seeking environmental justice through regulation.
As the first Black man to head the EPA, Regan often put the agency’s focus on the Americans who have for generations been shouldered with wildly disproportionate exposures to toxic chemicals — and, somewhat more recently, to the most dramatic effects of climate change. More often than not, that meant listening to and fighting for Black and Brown people, who are so often living the closest to our biggest environmental threats.
Regan acknowledged this in the resignation letter he sent to agency employees, noting that the agency took environmental justice and “placed it at the center of our decision-making.’’
But if that is both true and historic, the way that doing so played out shows the limits of using regulation to push the long arc of history. Because while there were successes in bringing new protections to at-risk communities through changes in emissions standards, the more systemic change that Regan’s EPA tried to bring about was stonewalled by legal challenges that threatened to undermine the agency’s strongest tool for righting environmental injustices.
That tool is Title XI of the Civil Rights Act, which says, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
In practice, that means that no state or local agency that receives federal funding — which is, in essence, all state and local agencies — can engage in discrimination. More specifically and very importantly, under the so-called disparate impact standard, the federal government can withhold funds over discrimination even if that discrimination is not intentional or cannot be proved as such.
So, in theory, the EPA could use Title XI and the disparate impact standard to investigate instances of environmental injustice and withhold federal funds in cases where it found that local agencies that, say, issue pollution permits or approve plans for power plants or other factories, discriminated against Black and Brown residents by either intentionally or unintentionally putting their health at risk.
But before the Regan era at the agency, the EPA was notorious for taking ages with Title XI investigations, and almost never, ever withheld federal funds. The EPA has only twice said that local agencies were being discriminatory, even with the broad definition available under disparate impact — and after the most recent finding in 2017, which took 24 years for the agency to reach (rather than the required 180 days), EPA still didn’t withhold any actual funding.
That was all supposed to change under Regan, who the Biden Administration empowered to use the full force of Title XI to investigate environmental injustices in a way that the EPA never has before. The agency started with what is arguably the most dramatic case of environmental injustice anywhere in the country, the River Parishes in Louisiana, where the high concentration of chemical plants and refineries has made it so the predominantly Black communities that live with their emissions have a 95% greater chance of developing cancer than the average American.
Cases were widely dropped in states run by Republicans.
There was real potential for change: a draft agreement that the EPA and state regulators in Louisiana reached as a result of the Title XI investigation into the area known as Cancer Alley included a provision that would have required regulators to consider how emissions would affect people of different socio-economic backgrounds living nearby before approving new pollution permits. That agreement was never finalized after the investigation was dropped — and the EPA backed off of Title XI investigations altogether — after then-Louisiana Attorney General Jeff Landry (who is now Governor of the state) sued the EPA early in 2023 over the disparate impact standard.
The suit argues that the federal government should only be able to withhold funds only if it can prove that there was an intent to discriminate; in August, a district court judge nominated by President Donald Trump sided with Louisiana in the case. Earlier in 2024, 23 Republican state attorney generals wrote a letter to the EPA calling for the end of Title XI investigations, which they referred to as “racial engineering.”
The legal challenge to Title XI and the risk that the Louisiana case could potentially go before a decidedly unfriendly Supreme Court all but ended investigations into discrimination by Regan’s EPA. Reporting by The Intercept showed that Title XI cases were widely dropped in states run by Republicans.
Now, with Trump heading back to the White House, the EPA is one of the agencies on the chopping block. Former New York congressman Lee Zeldin, a Long Island Republican, is Trump’s pick to lead the EPA. If confirmed by Congress, Zeldin will be empowered to “ensure fair and swift deregulatory decisions that will be enacted in a way to unleash the power of American businesses,’’ the president-elect said in a statement.
Trump also said that Zeldin’s EPA would maintain “the highest environmental standards, including the cleanest air and water on the planet.” Somehow.
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