Midway residents filed their Title VI complaint with the EPA in 1998. It was rejected in July 1999, because it was not filed on time, but residents have appealed that decision and are awaiting word on whether the complaint will move forward.
If it does, the claim will face some tough hurdles. Even if the EPA were to ultimately decide that the project did produce a discriminatory effect, the drainage pipe would still be legal if the EPA concludes that there were no other alternatives to its construction, or that adequate steps were taken during the digging to reduce residents' exposure to toxins.
Paul Trapani
Residents of Midway Village believe toxic soil still threatens their health.
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RELATED LINKS
Office of Civil Rights
The EPA's official site for information on Title VI and Title VII of the Civil Rights Act of 1964
Greenaction
The official home page of the health and environmental justice nonprofit
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Other Title VI claims filed from the Bay Area have produced varying results.
In a 1997 Oakland case, residents protested that the cleanup of toxic soil during reconstruction of the Cypress Freeway was insufficient. After months of protests and meetings with government agencies, an Oakland neighborhood association filed a civil rights claim, and the EPA ordered mediation between the residents and the agencies. The mediation has yet to take place, but EPA spokesperson Carla Moore says her agency will continue to push for a resolution.
"Title VI and environmental justice is so new," Moore says. "We're still trying to decide whether alternate methods are a good way to resolve Title VI complaints."
Technically, the Oakland neighborhood's Title VI complaint is still pending, but community organizer Bradley Angel of Greenaction says that simply filing it helped attract attention, and prodded the EPA to become involved.
In contrast, a 1998 civil rights complaint filed by West Oakland residents had little legal impact. When the Port of Oakland wanted to expand terminals, deepen harbors, and add new wharves, neighbors filed a Title VI complaint, along with a federal lawsuit based on the Federal Clean Air Act. The West Oakland community felt the construction and port expansion would add to air pollution in the already industrial area.
In what the community heralded as a great victory, the port sponsored a $9 million air quality mitigation package earlier this year. But port attorney Tom Clark says it was the federal lawsuit that ultimately led to the mitigation plan, and he saw the Title VI administrative complaint as an "add-on."
Most often, Title VI cases simply languish at the EPA, which activists say has been notoriously slow at processing the complaints.
Luke Cole, an attorney and director of the San Francisco-based Center for Race, Poverty, and the Environment, says he remembers calling up the EPA in 1994 to inquire about a complaint he had filed. "A guy picked up the phone and told me that he would get to it after he finished making some photocopies," Cole recalls. "There was one guy in there doing everything."
Later that year, the EPA hired four full-time lawyers to deal with Title VI and environmental justice complaints. But it was not until 1998 that the EPA defined the official procedure and deadlines for filing a Title VI complaint. Prior to that, it had been a messy free-for-all, without any kind of policy or timetable for dealing with the complaints.
Although the EPA has given itself a 180-day deadline to investigate and rule on Title VI cases, it has never met that deadline. Of the 90 complaints that have been filed, about half have been rejected and more than 40 are still pending. Only one case has actually produced a ruling. In that case, the EPA ruled in favor of a state agency that had granted a permit for a steel company in Flint, Mich. The surrounding community had attempted to block the plant.
The EPA's slowness in dealing with complaints is partly political, Cole argues.
"There has been an onslaught on Title VI and environmental justice applications," Cole says. "There has been a congressional push by the Republican Party to spike Title VI and environmental justice. Right-wing Republicans have demonstrated an antipathy toward civil rights, and they are also beholden to corporations who make campaign contributions."
In 1998 and 1999, Republicans in Congress, led by Rep. Thomas J. Bliley of Virginia, attached riders to appropriation bills that prevented the use of federal funds to investigate Title VI cases, crippling the EPA's ability to process the complaints.
Cole says he and other environmental lawyers realize that the usefulness of discrimination complaints is limited, and advises residents to file Title VI cases only after weighing other options.
"We advise communities that Title VI is limited in its effectiveness because the federal government is unfortunately so far unwilling to uphold civil rights laws," says community organizer Bradley Angel of Greenaction. "But it's an important tool. It is powerful in raising the very real issues of environmental racism."
