Dive Brief:

• The U.S. Environmental Protection Agency has dismissed a complaint asserting the Alabama Department of Environmental Management (ADEM) lacks adequate policies for processing state civil rights and environmental justice violations, reports AL.com. The complaint was filed earlier this year after ADEM Director Lance LeFleur rescinded the department’s environmental discrimination procedures — a move that, according to the complaint, violated Title VI of the Civil Rights Act.
• ADEM's decision to remove its civil rights policy was prompted by a lawsuit arguing that the disproportionate proliferation of landfills and wastewater treatment plants around communities of color constituted an act of environmental racism. According to the plaintiffs, ADEM's since-revoked processes offered inadequate protections for low-income minority populations.
• EPA's Dec. 3 response holds that there is "insufficient evidence to conclude that ADEM violated Title VI and EPA's nondiscrimination regulation," as the department has since implemented "grievance procedures that meet the regulatory nondiscrimination requirements." According to environmental attorney David Ludder, who filed the complaint, the plaintiffs may choose to challenge these newly adopted processes.

Dive Insight:

ADEM's rescission of its complaint policy was precipitated by a January 2017 lawsuit filed by five Alabama residents living near landfills or wastewater treatment plants. The plaintiffs, who argued that ADEM's permitting of facilities in poor black communities amounted to racial discrimination, accused the department of having "invalid" procedures for investigating environmental justice issues.

According to Ludder, who previously worked at ADEM and has since filed multiple suits over the department's civil rights processes, the policy hadn't undergone any of the rulemaking procedures mandated by state law. Moreover, he told AL.com, the department's procedures were substantively inadequate as well as lacking statutory authority: "[T]hey were just a sham, a pretense, so ADEM could collect financial assistance from EPA without any real intention of providing protection for minorities."

In response to the suit, the Alabama Attorney General’s office informed the court this past June that ADEM's policy on accepting and investigating environmental discrimination issues had been rescinded, thus rendering the plaintiffs' accusations moot. For Ludder, the act served as unequivocal evidence that ADEM was in violation of Title VI — which requires entities receiving public funding to have discrimination grievance procedures in place — prompting him to petition EPA to withhold federal funding from ADEM or force the department to implement new processes.

However, EPA dismissed Ludder's complaint last Monday, maintaining that ADEM had updated and posted satisfactory grievance procedures on Nov. 5 following "several communications between August and October 2018" with EPA. Ludder says his clients are now considering filing a suit challenging the validity of ADEM's new policy.

This isn't the first time EPA has dismissed complaints against ADEM's civil rights processes. Last March, the agency claimed two complaints filed by Uniontown residents — which characterized ADEM's permitting of a landfill just outside the community as an act of environmental racism — contained "insufficient evidence" of discrimination.

The denials fall in line with EPA's broader environmental justice record: according to a 2015 investigation by the Center for Public Integrity, EPA rejects more than nine in 10 discrimination complaints. The agency has only twice sided with communities alleging civil rights violations since President Clinton's 1994 executive order directing EPA to consider environmental justice issues.