Civil rights enforcement can help end environmental racism

COVID-19 laid bare the bleak truth that environmental racism kills. Gross inequalities in Americans’ exposure to deadly pollution, often falling along racial lines, has made 2020 most likely the deadliest year for Black Americans and other minorities who have struggled for environmental justice for decades. 

But in order to address it we must see it for what it is — a civil rights issue that cannot be ignored or confined to the whims of local officials who see community complaints of cumulative pollution impacts as mere nuisances. Strong federal action is overdue, and laws that can combat environmental injustice must be used to their fullest extent, including the Civil Rights Act of 1964. The incoming Biden administration’s plans to combat environmental racism must breathe life into civil rights enforcement. 

Pollution is by definition harmful, and the biggest polluters are overwhelmingly located in poor, non-white areas. This is not a new phenomenon. In 1982, North Carolina put 60,000 tons of polychlorinated biphenyl (PCB) laden soils into a landfill in Warren County because its residents were “few, black, and poor,” launching protests that broadly started the movement for environmental justice. A landmark study a few years later on toxic waste and race in the United States found that communities with the largest number of hazardous waste facilities also had the highest composition of racial and ethnic minorities. Three decades later, little has changed and disadvantaged minority and low-income communities remain persistently and disproportionately exposed to higher levels of air pollution.    

The COVID-19 pandemic has magnified the deadly effects of environmental racism. According to a recent Harvard study, people with COVID-19 who live in regions with high levels of air pollution are more likely to die from the virus than people who live in less polluted areas. Even small increases of long-term exposure to soot, often from the burning of fossil fuels, is associated with an 8 percent increase in the COVID-19 death rate. More than one million African Americans live within one mile of an oil and gas operation and according to the NAACP, race is the top factor in determining the location of toxic facilities in the U.S. 

The Civil Rights Act of 1964 can address these disparities, yet it has been grossly underutilized. In the summer of 1963, President Kennedy sent a message to Congress addressing moral crises gripping the country around race relations. He stated, “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidies or results in racial discrimination.” These words were enshrined in Title VI of the Civil Rights Act of 1964, but we have failed to apply them to the environmental injustices in our country. Every year, billions of federal tax dollars support programs that entrench environmental racism through siting and permitting decisions for our most polluting industries, in addition to lax enforcement that disproportionately sickens and kills racial minorities. The recent Trump administration rollbacks of nearly 100 protective environmental regulations has only increased the pollution burdens that sicken our communities. If Congress and the White House ever agree on a much-needed recovery package, billions more dollars will flow to states, making Title VI even more relevant.  

In July, Vice President-elect and Sen. Kamala Harris (D-Calif.) introduced the Environmental Justice for All Act. The legislation confronts systemic environmental racism and addresses disparate impacts of pollution through much-needed proposals to reform the Clean Air Act and the Clean Water Act. While this is a clear step in the right direction, communities are suffering and people are dying today while money could be flowing from Congress tomorrow, providing the predicate for civil rights enforcement. 

Federal Agencies, like the Environment Protection Agency (EPA), are to ensure that recipients of federal funds do not administer programs or policies that result in discrimination, yet that is exactly what is happening. While the Civil Rights Act may limit the ability of victims of these environmental injustices to only sue for intentional discrimination — an admittedly high bar that the Environmental Justice for All Act is meant to address — agencies themselves have a responsibility to address practices that have a disparate impact on people of color. The EPA first established its Office of Civil Rights in 1993, and since then has not made a single finding of discrimination based on cumulative impacts of pollution. Recently, the EPA’s Office of Inspector General found that the office responsible for enforcing Title VI of the Civil Rights Act fails to even proactively review funding recipients’ compliance with the law. Now more than ever, we must have the political will and integrity to use all of our resources including new environmental justice legislation alongside the full force of existing laws.

We are in the midst of an environmental racism perfect storm, where COVID-19 and gross disparities in exposure to pollution and the constant impact of climate change combine to ravage minority and low-income communities. If we are to build back better, justice demands that we fully enforce our civil rights laws to stem the tide of environmental racism. The consequences of our inaction have been deadly and our people require environmental justice leadership at the federal level to end taxpayer subsidies of crippling discriminatory environmental actions. 

Avi S. Garbow is Patagonia’s Environmental advocate and a former Environmental Protection Agency general counsel under the Obama administration.