NY Times: Appeals Court Finds Widespread Failure by EPA to Investigate Civil Rights Complaints

September 18, 2009
Appeals Court Finds Widespread Failure by EPA to Investigate Civil Rights Complaints
By JENNIFER KOONS of Greenwire

U.S. EPA's Office of Civil Rights has shown a systemic refusal to address allegations of discrimination in the use of agency funds, according to a unanimous three-judge panel on the 9th U.S. Circuit Court of Appeals.

"What the district court initially classified as an 'isolated instance of untimeliness' has since bloomed into a consistent pattern of delay by the EPA," Judge A. Wallace Tashima wrote for the court. "[Rosemere Neighborhood Association] has twice encountered that pattern whereby it files a complaint, hears nothing for months, and then only after filing a lawsuit does the EPA respond.

The decision stems from a 2003 Title VI environmental justice complaint filed with EPA's OCR by Rosemere, a nonprofit community organization. The complaint was filed against the city of Vancouver, Wash.

OCR is charged with enforcing Title VI of the Civil Rights Act, which prohibits recipients of federal funding from using that money in a way that has a discriminatory impact based on race, color or national origin. EPA has established an administrative process whereby local communities can file complaints to address discrimination in the use of federal funds.

Rosemere alleged that the city had discriminated against low-income and minority neighborhoods by refusing to address failing septic systems, the lack of a comprehensive sewer network, contaminated ground and surface waters, poor air quality and industrial pollutants.

"The city used EPA funding to improve affluent areas and neglected the disadvantaged neighborhoods," said Christopher Winter, an attorney with the Portland-based nonprofit Crag Law Center, which eventually represented Rosemere in its lawsuit against the agency.

A short time after Rosemere filed its initial administrative complaint, the city opened an inquiry into the group, which resulted in the revocation of its status as a formal neighborhood association. Rosemere filed a second complaint with OCR, contending that the city had retaliated against it for the initial complaint, according to the opinion.

OCR failed to respond to the second complaint within the required 20 days due to "severely limited office resources and a substantial volume of competing programmatic demands," the opinion said.

After 18 months passed without a response, Rosemere filed a lawsuit against EPA in the U.S. District Court for the Western District of Washington to compel action.

Less than two months later, OCR informed Rosemere that it had accepted the complaint for investigation and moved to dismiss the lawsuit as moot.

In granting the motion to dismiss, the district court said the delay was "nothing 'more than an isolated instance of untimeliness and oversight,' and there was no evidence that the EPA's failure to act was a 'practice' the EPA might resume in the future," the opinion said.

Rosemere sued again in February 2007 after OCR had failed to issue a preliminary finding on the action.

Ten weeks later, OCR concluded its investigation, finding that the city's actions did not amount to "impermissible retaliation."

EPA then filed a motion to dismiss Rosemere's action as moot, and in December 2007, Judge Benjamin Settle agreed. Rosemere appealed to the San Francisco-based 9th Circuit.

"Rosemere's experience before the EPA appears, sadly and unfortunately, typical of those who appeal to OCR to remedy civil rights violations," Tashima wrote.

She cited declarations provided by Crag Law from other community groups that experienced the same problems and a friend-of-the-court brief filed by the California-based Center on Race, Poverty and the Environment.

"As indicated earlier, discovery has shown that the EPA failed to process a single complaint from 2006 or 2007 in accordance with its regulatory deadlines," Tashima noted. "Amicus the Center on Race, Poverty & the Environment has helpfully provided further examples of such delay."

Winter said he hoped the decision would compel OCR to make changes.

"Rosemere was pleased with the result. In this case, EPA had inflicted years of hardship on a small community group. We've heard the same dozens if not hundreds of times in recent memory," Winter said. "This is a strong statement that the Office of Civil Rights is in desperate need of reform, and we hope to see that kind of reform soon."

EPA's OCR did not respond to requests for comment by deadline.

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