Environmental Justice and the Racial Divide: Lack of Oversight of Toxic Sites Located In Communities of Color

Just Economy Conference – May 10, 2021


Minorities are regularly impacted by environmental disasters because toxic sites have been purposefully and repeatedly placed in or near their communities for decades. It is often a clear case of systemic racism in America. The panel discussed examples of how these communities are impacted, historical inequalities in state and federal oversight and efforts to clean up toxic sites and provide redress to those impacted.


  • Bradley Blower, General Counsel, NCRC
  • Marianne Engelman-Lado, Deputy General Counsel for Environmental Initiatives, Environmental Protection Agency (EPA)
  • Max Lapertosa, Trial Attorney, U.S. Department of Justice
  • Wilma Subra, President, Subra Company/Technical Advisor, Louisiana Environmental Action Network
  • Carletta Davis, Organizer, We Matter 8 Mile


NCRC video transcripts are produced by a third-party transcription service and may contain errors. They are lightly edited for style and clarity.

Blower 00:09

Well thank you everybody for joining the NCRC’s panel on environmental justice and the racial divide the lack of oversight of toxic sites in minority communities. We have a great panel today. And we’re going to be focusing on the impact on minority communities of toxic sites, particularly in the southeast with a bit of a focus on the Eight Mile community, which is an African American community, near Mobile, Alabama, that’s been particularly impacted by a toxic chemical spill from a utility company. And I wanted to introduce our panelists, such as sense of who will be speaking before we kick things off with the presentations, you’ll first tear from Wilma Subra, who is the head of super company, which is a scientific research company, based in Lee, Louisiana, which does a lot of work, working with communities of color across the southeast, in identifying the scope of toxic issues, and trying to work with those communities to see what can be done to remediate the impacts of toxic spills and other environmental issues in those communities. And Ms. Subra is also working with our second speaker, Carla Davis, who’s the head of the We Matter at Eight Mile resident community in mobile, near Mobile, Alabama, that’s been impacted by a toxic spill. And she’ll speak about the efforts that her community has made to get attention from federal and state authorities and what that community is doing and what their impacts are of the toxic spill on Eight Mile. Miss Davis is also the NAACP, environmental chair for environmental issues with the NAACP, as well as being the head of the Eight Mile we matter group. Our third speaker will be Marianne Engelman-Lado, who is Deputy General Counsel of the Environmental Protection Agency. And prior to joining EPA, she was a law school environmental clinic law professor who most recently worked at Vermont law school on environmental issues and is quite familiar in her work as an advocate before joining the EPA, on issues that affect communities of color related to these kinds of toxic spills that we’re going to be talking about in toxic sites. And last but not least, is Max Lapertosa who’s a long time trial attorney with the Department of Justice. Max has also done details with the pellet section, the disability section at the Justice Department. And before coming to justice, he was an attorney with Access Living based in Chicago that worked on disability rights issues. And Max like Marianne at EPA works on environmental issues, and was newly announced that he’s going to be the coordinator for the Department of Justice civil rights housing section on environmental justice issues. And we’ll be talking a little bit about what the department justice the Department of Justice is looking at when it’s focusing on these issues. So with that, I’ll turn it over to our first speaker, Wilma Subra, who will kind of set the table on what the issues are, which he’s seeing on the ground in these communities, and will get us going for our panel today. So Wilma, thank you.

Subra 03:32

Thank you. The health and quality of life, of communities of color are being negatively impacted by living on the fence line and in the areas of current and legacy industrial facilities, such as chemical production facilities, petroleum refineries, plastics manufacturing, rubber manufacturing, primary metals processing, pulp and paper mills, wood products, fertilizer manufacturing and electrical utilities. Also, communities live near oil and gas drilling, production distribution, export facilities and orphaned and abandoned wells. They also live near areas of surface and subsurface mines, landfills, Superfund sites, and a host of other types of facilities, all of which are associated with the release of very toxic chemicals into the environment in which they live. The toxic chemicals from these sources contaminate the air, surface and groundwater, drinking water, soil, sediment, aquatic and terrestrial plants and animals, and, most importantly, the bodies of the members of communities of color with the toxic chemicals bioaccumulating in their bodies and causing a large number of negative, debilitating and fatal health conditions. The regulations administered by federal, state and local agencies are frequently not adequate to protect the health of communities of color. These regulations are usually not enforced in a timely manner. And the negatively impacted communities of color are not engaged nor allowed to participate in the enforcement process that they need to reduce their exposure and to improve their health and quality of life. Could we have the first slide please? So we’re going to talk a little bit about eight miles. In 2008 6000 gallons of tert butyl mercaptan, oxidizing agent added to natural gas was released into the ground and groundwater from a tank supply line at the mobile gas with the function facility in the African American community of Eight Mile. And you heard about that in the introductions and eight miles in Alabama. The release was supposedly due to lightning strikes. So is it possible to have the slide up please. There may mcap can migrated from the shallow aquifer under whistlers Junction into a deeper aquifer and flowed down dip. Three years later, in 2011, the mercaptan began bubbling to the surface and the natural springs in groundwater in the beaver pond area. The mcap cam was released into the air from the bubbling springs and resulted in residents of Eight Mile experiencing strong odors and severe health impacts such as nausea, weakness, dizziness, vomiting, diarrhea, difficulty breathing, headaches, lung congestion, confusion, respiratory irritation, kidney damage, and cyanosis. And many many other debilitating symptoms that degraded their quality of life in the African American community of Eight Mile on a continuous and ongoing basis. The issue of community members risk was dismissed by the health agencies and they were left to continue to suffer in their homes. In 2012, the mercaptans still being released into the air of Eight Mile and communities members continuing to be ill, Alabama Department of Environmental Management ordered mobio gas to clean up the okorafor. But you have to understand it does not happen overnight. And October of 12 treatment system one was installed with dress the mercaptan that was bubbling to the surface in those springs in the beaver pond. And you will see that one towards the left bottom of the screen was where the treatment you know, what? Three years later, in November of 1524, groundwater recovery wells depicted in blue all along are right away in the center of the figure had been installed and operating. And the years four years later, in July of 12 of I’m sorry, in July of 19 additional recovery wells were added and that one has its own recovery system and you’ll see towards the top in the middle of the screen. mercaptan odors complaints continued to be submitted by Eight Mile community members throughout 2018 and are currently still being reported as occurring in their community. The Porter Ranch neighborhood a white middle upper-class community in California, was located near the Alonzo Canyon natural gas storage facility. A well-serving the storage facility experience amazing leak and release 100,000 tons of methane with some mercaptan into the atmosphere. The community members experience headaches, bloody noses, nausea, rashes and brain fog. 1000 families were relocated out of the area, and the risk was due to the potential for the methane in the air to explode. Thus residents were relocated. Could we have the next slide please? The dresser facility in Pineville Louisiana, manufactured industrial valves and components and their process included decreasing metal components using pry chloride ethylene are as most people know it as TC in 2016, dresser was performing investigations to determine groundwater contamination, the chemicals contaminated the groundwater and extended off site. Based on continuing ongoing investigations. It was revealed that dresser had both groundwater contamination and soil gas contamination with TCP with also PC II and breakdown products, daughter compounds that extended from their facility into the residential area. On January the eighth of 2020, just before the pandemic hit, Louisiana Department of Environmental Quality hand-delivered notice letters to the residents of the middle and low-income Aurora Park, which you see in the major part of the screen with the industrial facility at the top laughs and as a result of that the notice letter stated that environmental contamination had been detected in the vicinity of your property or your residents historical salt groundwater soil gas contamination from industrial solvent with the south and discovered at the dresser facility the main contaminants TC PC were present as well as the breakdown products. The notice stated sampling of indoor air will be conducted in some future time period. Can you imagine receiving a letter hand-delivered to your door that makes those statements the Agency for Toxic Substances and Disease Registry establish health-based guidelines for ambient air concentrations of Tc 2.1 micrograms per meter cube MPC 3.8 when the indoor air results exceeded either one of those guidelines, granular carbon air purifiers were installed in the homes. In this situation, there was a risk but the risk was addressed when the air purifiers to reduce the concentrations of TC MPC and their breakdown products not eliminate but only reduce therefore no evaluation were even performed to determine how long in the past history had they been exposed. And then communities and rural Park were provided with health impacts TCP headaches dizziness sleeping his immune system it attacks increased risk of health problems in the developing fetus like heart defects problems with the immune system, which make babies are prone to infections. tishie causes kidney cancer in workers and induces liver cancer and malignant lymphoma. While PCP causes headaches dizziness, sleeping its horn two Nervous System reproductive system, liver, kidney and unborn children causes memory attention and vision loss changes in the mood and reaction time. Next slide please. And can you imagine what those people living in rural Park felt? So then in November of 2020, the results of groundwater and soil gas contamination at five additional subdivisions and housing developments around the facility were released by dresser the groundwater contamination plume had been identified as having migrated into more upscale areas north northwest southeast southwest of the dresser facility. In March of this year, notice letters were handled everybody EQ to property owners and residents in the grace stone road area. The lattice notified that the individuals of the groundwater contamination disallow gas contamination and said we’ll be coming to sample the air in your homes. graesser is only performing incertitude chemical oxidation and soil extraction on source areas on their property, not within the community. And from all the plumes that you see there. It’s under huge, huge number of individual homes. There are just these are just a couple of the types of negative exposure and associated health impacts due to toxic chemical exposure in communities of color. Frequently, regulatory agencies tend to dismiss the situation occurring in communities of color and lacked efforts to provide oversight and audit to ensure the industrial facilities are complying with the environmental regulations. industrial facility sources that negatively impact communities of color tend to overlook the negative impacts caused by the facility operation and assume the communities of color will never ever speak out. Going forward, there’s a need to engage, educate, and empower communities of color, so they can participate in the process of reducing their own exposure to toxic chemicals and address the unacceptable situations that are occurring in their communities. There is an absolute need to empower community members so they can represent their situations to local state, and federal environmental health. Regulatory agents represent the situation and negotiate changes with the industrial facilities, causing the negative impacts to their community, and their community members. And most of all provide mechanisms so community members can help other communities with similar exposure situations. Thank you.

Blower 15:16

Thank you, Wilma. And before we turn to our next speaker, Carla Davis, I would just mentioned that the NCRC is working with the Eight Mile community, including Carla Davis, on, we filed the complaint on their behalf along with the South Alabama center for fair housing. For the companies that were involved the utility companies that were involved failure to redress or deal with the impacts on the minority community there. As opposed to as Wilma mentioned, there’s the white community at Porter Ranch in California, which was relocated because of a toxic spill there. So with that, I’m going to turn it over to Carla Davis, who’s going to talk about AML in particular, and the impacts on her and her fellow residents of that community. Thank you, Carla.

Davis 16:04

Thank you, Brad. And I appreciate being a part of this very important discussion. In going forward, I hope that we have more discussions such as this, as Wilma was saying, oftentimes, communities such as Eight Mile or voices are not heard, or they are ignored when companies come in to our communities, to do their business. And what we find often is, and I know I can speak for myself, having lived through this, I live about a quarter of a mile away from the actual spill site. And my family was heavily impacted by the odors and the chemical that in inundated our community and has inundated our community for years. My children have suffered health conditions, I have suffered health conditions, we’ve had the nosebleeds, we’ve had the headaches, the nausea, the high blood pressure, and all those things that were described as, I guess conditions or as effects of the chemical. So we’ve been through all of that. But prior to this happening to us, as with most community members, like myself, we were just going along our daily lives, you know, we, we were not focused so much on the environment. We were not focused so much on who our corporate neighbors were and what they were doing. And so because of that, I feel that communities like ours are targeted, because we are so busy with the rat race of life, if you will, and just trying to economically survive, socially survive. And so environmentally, we’re not paying attention. And so, when people ask me about eight mile, I always tell them, tell them that I became an environmentalist by force and not by choice. And the reason why is because this spill just was imposed upon our lives in the way that it was. And so someone had to do something about it. It was it became very clear and apparent to us, after the quote unquote, lawsuits that that were File, that there would be no true remedy or redress to what happened to us, and what the company had done, there would be no real punishment given to the company for doing it. And so therefore, we had to take matters into our own hands, which is what we did. And so about 2016, we begin to organize as a community, that was something that we had never done before. And we came together and started to say, Okay, we’ve got to, we’ve got to make some noise. And particularly, because we heard about what happened in Porter Ranch, and the fact that this was the same company, and that they had gone out and literally remove those residents from the spill location, in order to keep them safe. And so we were like, well, what is the difference between our community and their community? Why? Why is it that they get to be safe? Why is it that their children’s health is important, and our children’s health is not. And so it really emboldened us to, to again, organize and just started really, really literally got into the street and started petitioning the health department, we started petitioning the environmental department, Alabama, Department of Environmental Management, and our governor, we marched on on Montgomery, we went to the Capitol, we marched on the federal building downtown, because we knew that we had to bring attention to what was going on, or else it was just going to continue to get swept under the rug. And, and so, you know, we’ve continued that fight, our hope is that the federal government now will take a deeper look at what has gone on and the in justices that we have suffered because of this field, if Eight Mile has about, I would say, six land fields, just in this area. And it’s not a big area, you know, so we have really environmentally taken the brunt of all things negative when it comes to environmental. I call it environmental injustice in mobiele. County, um, this area has the most landfills, we have the most area for, um, industry as far as like, the gas pipes and things of that nature. And, and so you know, now we’re just really, um, we’re really super focused on one, what’s going on with the, with the companies that are here, too, to, you know, who’s wanting to move here? And why and what are they going to do, because we don’t want to be caught in a situation. Like we’ve been caught in with the gas company. This is our homestead we’ve been here 30 years. And we don’t want to go anywhere, it’s a beautiful area, actually used to be the bit rock area of mobiel. County, had beautiful springs, where people went fishing and swimming. And you know, and now, again, you know, these environmental disasters is it’s just destroying our community. And so these types of things, as I understand it now, or are happening all over the country. And, you know, our our hope is that communities such as ours, get a voice, they get an opportunity to go directly to the federal government, and have the federal government to actually impose and to oversee what is going on in these communities, because oftentimes, our state and local officials are just checked out. They’re not involved. Either that or these companies are paying the politics for political favors, which sets the policy for our communities. And so because of that, they don’t they don’t set the policies in favor of the community. They set the policies in favor of their donors, which are these companies. And so, you know, we need to actually have a voice where we can go directly to the federal government and say, Look, this is what’s going on in our community and and we really need you to come in and and oversee what’s going on and to make things right. And, you know, oftentimes I feel like there’s no, there’s no face to what’s going on. And so therefore, I felt it was very important for me to be a part of this panel, so that people can actually see that we are real people, you know, we have hopes and dreams, we want to live the American dream, just like everyone else, you know, we want to be in good health like everyone else. And it is unfair, that our communities have to suffer the brunt of these companies coming in, and just polluting our communities, for no reason, and, and for us to have to suffer because of it. And so, you know, we are there, these, these are real situations and are real people. And, you know, the more that by me becoming the president of the associate, the Community Association, of course, I got the opportunity to hear firsthand, from my community members, all of the horror stories of children that were having seizures, and, you know, having to have, you know, surgery, brain surgery and things of that nature, because they were being exposed to this chemical. And so it just breaks your heart to know that, you know, these kids are their lives are going to forever be changed. Because someone made the decision to come into our community with the chemical and spill it and not tell us and so, you know, there’s just got to be more humanity put behind what’s going on with these companies. So that so that this doesn’t continue to happen, their pay for business and community to live together and be together. We’re not anti, anti-economic, we’re not anti revenue growth, we’re not anti-job growth, that that’s what all of us want. But we also cannot enjoy those things if we’re not here to enjoy them. Or if we’re in bad health, or if we’re always having to take off for work because our kids are in bed, bad health. So there’s got to be a medium where community and corporation can live together and be together and not hurt one another. And so I’m hopeful that with these types of discussions, that that pass becomes a reality.

Blower 26:41

Thank you very much Carletta. Appreciate that. I’m now turning it over to Marianne Engelman-Lado, who was deputy Deputy General Counsel at the EPA, and just joined the agency within the last six to eight weeks.

Engelman-Lado 26:58

Thanks so much. It’s an honor to be on this panel. And I’m to both lamassu Brad and Carla Davis. It’s it’s familiar all too familiar, but also still heartbreaking to hear about your experience. So environmental justice is such an important topic. And it was at the core of my practice as a lawyer before joining the EPA, but it’s also the motivator, and why I’m excited to share why I have joined the administration. So what I wanted to do with my few minutes, is to tell you a little bit about my background. And through doing so talk a little bit about environmental justice, and then talk about why I have some reasons for hope. As I hear Miss Davis’s story, it is a classic story of civil rights, unfortunately, but a story and experience of local and state government. The feeling is of not being responsive to the community. And this is really what drove the civil rights movement, the need to for the federal government to come in, because rights were not protected. So my starting point is that environmental laws have absolutely made a difference. And an enforcement of environmental laws is critical. But having said that, as as Wilma Subra suggested, there are significant gaps. Given the history of racial segregation, and the footprint of how land is used across the country. And the fact that our patterns of living are still marked by race. It’s not surprising that race would be a salient factor in predicting how polluting facilities are located where they are located across the country, within states within counties within towns who has access to fresh air, who has access to clean soil, who has access to clean water to go back and take our lenses. Little bit broad for a moment. In 1987, the United Church of Christ Commission on racial justice released what is now considered to be a seminal report called toxic waste and race, which examined the relationship between the location of hazardous sites, including income other factors and race, and found that race was the most salient factor in explaining the location of hazardous facilities. Again, not surprising, given how the footprint of the legacy of segregation and discrimination in this country. Since that time, the literature on this issue is substantial. I would commend two articles from about 2014 or 15, by Robin Sahab and Paul Mohai, called which came first one is a literature review on the relationship between race income and other factors and exposure to hazardous substances. And the other is itself a longitudinal study or reports on a longitudinal study, which asks the question, do people move to toxic sites or do toxic sites move to people of color? And while there’s a little bit of both, it also turns out that as Miss Davis was saying, unfortunately, it’s the case that if you look across time that toxic facilities move to people of color. This research and the experiences of communities across the country tell us that racial disparities in exposure to pollution continue today. Once formal racial segregation was declared illegal. We as a society failed to re-examine access to environmental benefits and burdens. And we failed to address those inequalities get just because we’ve taken off the line saying this area is black, this area is wider this area’s Latinx. This area is white, doesn’t mean we’ve uprooted the zoning the location of pre-existing facilities. They’re still there, unless we take conscious decisions to say, Oh, no, no more, are we going to put another facility in this already overburdened community. In fact, we live with some communities overburdened by the cumulative impacts of many sources of pollution. I think of Newark, New Jersey, Richmond, California, Gary, Indiana. And even we even exacerbate those inequalities by allowing more facilities to be located or to expand in already overburdened communities, a community I worked with and had the real honor of working with in Alabama, Union town, Alabama, in Perry County. I see Miss Davis is nodding her head. She’s familiar with it. Union town has catfish plant cheese plan an antiquated sewage system, then there was a permit for a very large landfill. And then there was a decision to allow coal ash to come to this very large landfill right across from where people are living. That’s the cumulative impact of an already overburdened community, a community that has a per capita income of about $10,000. And that is about 90% African American. So we can apply principles of environmental justice and civil rights to these situations. And it is it is on all of us in the private sector in the public sector, at the county commission at the state level and the federal government to do that. So what do I mean when I’m when I’m talking about environmental justice, I look to the first people of color National Environmental summit, that that gave rise to a set of environmental justice principles which I commend people that affirm values such as the sacredness of Mother Earth, and they demand justice and the distribution of environmental benefits and burdens. polluting facilities, as I said, are more likely to be located in BIPOC, and low-income communities. And those communities are more likely to be exposed to pollution, whether it’s a particular chemical or particulate matter that gets in the lungs. And now we know also that BIPOC communities, low-income communities and people with disabilities also face higher risks associated with climate change even more urgently, more recently, we know from COVID-19, hospitalization and death rates, that people of color, particularly black, or African American, non-Hispanic persons, Latin x folks and American Indian or Alaskan natives are something depending on which community we’re talking about, just multiple times more likely to be hospitalized and to die from COVID. And we know also that one of the contributing factors This is from a Harvard study is the relationship between being exposed to particulate matter which given similan And hospitalization and death rates from COVID. And we know from an EPA study in 2017, that there’s a very strong relationship between race and exposure to that particulate matter. So we need to do something about that distribution of environmental benefits and burdens. And the environmental justice principles, also called for procedural justice, respect, a say for communities in effecting their own future. So my work before coming to EPA was to work with communities and provide legal assistance, technical assistance, to support the kind of organizing that Miss Davis is talking about where that was occurring in Union town, we worked with community groups to assert their rights all across the country. And I had the great opportunity to work and be honored by trying to support the community organizing that communities we’re doing actually was not an environmental clinic, I was an environmental justice clinic, and I would a lot of good environmental work is done in environmental clinics. But we were training students to work with and support communities. And the theory of change was that it is communities that will take control over their own future. So why did I make the switch to the government and maybe in q&a, we’ll talk a little bit more about what opportunities that presents? Well, um, you know, President Biden, during his campaign was the only candidate that I know in the history of candidates, United States that actually had a really elaborate environmental justice platform that included enforcing civil rights in the environmental justice sector. civil rights enforcement is not where it needs to be across, across employment, discrimination in housing, but it is somewhere whereas in the environmental context, report, after report, experience, after experience has shown that people simply do not expect the regulated community does not expect to have their up to be held accountable for discrimination in decision making in the environmental sector. So we’re going to change that. And we’ve got the administrator of EPA, Michael Regan, we’ve got the President of the United States, Joe Biden, who are behind that. And in Executive Order after executive order, there’s executive order 13985, advancing racial equity, Executive Order 1408, tackling the climate crisis, they reiterated the need for civil rights enforcement, they’re calling on us to audit ourselves to ensure we’re advancing equity. And they’re taking concrete action to advance equity. And again, I hope we can talk more about the specifics, and what you all can do to, in short, to hold our feet to the fire to let us know what your positions are. And our doors are open. Thank you very much.

Blower 37:02

Thank you. Our last speaker is Max Lapertosa. And given the importance of the Department of Justice in the Civil Rights history of this country. In working on these issues. We wanted to make sure that we included max in the discussion, particularly because the civil rights housing section at the Justice Department is focusing on environmental justice issues, and Max is the point person on that issue for the civil rights housing section. So with that, I’ll I’ll turn it over to max for his remarks.

Lapertosa 37:33

Thank you, Brad. So Marianne’s? Comments are a perfect segue into what I’m here to talk about, which is the civil rights divisions new Environmental Justice Initiative under the Fair Housing Act. As Brad said, I’m a trial attorney in the civil rights to what’s called the housing and civil enforcement section, we enforce five federal civil rights statutes, but the bulk of our work is under the Fair Housing Act. We have both our section on I think the Civil Rights Division generally, historically comes to this with the waste experience of anyone on this panel, certainly in environmental, civil rights cases and environmental cases Generally, we are hoping to change that, as Marian said, because it is a practice as a priority of the current administration. So as litigators under the Fair Housing Act, we litigate a variety of cases, race discrimination, gender discrimination, sexual harassment, disability discrimination, religious discrimination, but we have not historically focused on environmental cases or environmental justice cases. And so there’s a deficit of experience and knowledge that we’re hoping to fill this new initiative. The initiative came about, because of the executive orders that Maryann just described on January 20. President Biden’s first day in office, he issued an Executive Order, calling on the federal government to advance environmental justice and hold polluters accountable, including those who disproportionately harmed communities of color and low-income communities. And a week later, President issued another executive order that directed federal agencies to develop programs, policies and activities to address the disproportion of health, environmental, economic, and climate impacts on disadvantaged communities. in furtherance of those directives. The housing and civil enforcement section where I work created an initiative in which we will use article rate to enforce the Fair Housing Act to advance environmental and public health policies and practices that discriminate in housing, primarily on the basis of race, color, and national origin. Some potential examples of those are what marine has already talked about the site the saving What are currently or historically, of industrial or pollution causing land uses in neighborhoods that are majority persons of color. decisions concerning municipal services that are traditionally tied to housing such as water, sewer, or electricity that have negative environmental, environmental impacts on people of color. And again, this because this is a new area for us, I don’t want to make the examples exclusive, we’re open to looking at a number of different examples. So for example, many years ago, we felt an amicus brief in a case where a highway was being widened, it was going to negatively impact a low-income housing development that was majority-minority in Georgia. So, you know, we want to hear about cases like that as well. I want to talk a little bit about what the Fair Housing Act prohibits and what our authority is under that statute. The Fair Housing Act prohibits the discriminatory refusal to sell or rent housing, or to otherwise make housing unavailable or otherwise deny housing, on the basis of race, color, or national origin of the otherwise make unavailable or otherwise deny language is very important. Because what that means is you don’t have to be a landlord, or a provider of housing or condo association or saralee. To be liable in the past, you are liable if you do something that ends up making housing available. The Fair Housing Act also provides that discrimination in the terms conditions or privileges of sale or rental housing, or the provision of services or facilities in connection with housing. On the basis of race, color, national origin, is also and that gets us to some of the services that may not be tied directly to the sale of rental housing, but are certainly part of what we expect when we have housing like clean water, electricity, and so forth. One barrier that has come up that is not specific to environmental justice cases, but certainly impacts them is the question of whether the Fair Housing Act applies to what is called post acquisition discrimination, meaning discrimination that occurs after a person buys a unit or rents a unit or otherwise takes possession. And there has been a split in the circuits. And there’s an unfortunate decision in the Fifth Circuit from 2005. That was actually in an environmental justice case, the hell that those claims with a few exceptions are largely not actionable. under the Fair Housing Act. One thing I can say that the civil rights division has done, and it spanned administrations was fighting that very narrow definition of the Fair Housing Act, and making sure that discrimination that occurs post-acquisition is still actionable under the textbook. And even if even where that theory applies, where environmental conditions basically make housing uninhabitable, the courts have said that we can pursue a constructive eviction, meaning that it may not be an actual eviction that in the way we think of that but if the housing is basically unusable because of surrounding environmental impacts, that is a violation of the Fair Housing Act if it’s based on race or national origin. The Fair Housing Act recognizes two theories of discrimination in the context of race. One is intentional discrimination. The other is disprin. Intentional discrimination in my experience is largely misunderstood. It is a tougher theory than disparate impact, because you have to prove that the discrimination occurred but for would not have occurred. But for the race color national origin, the residents of the housing. Fat, of course does not mean that that has to be the only cause of discrimination, there can be multiple independent motives that can currently lead to the discrimination. But we nevertheless would have to prove that the defendant would not have acted, but for the race or color of the residence of the housing. It can be shown through either direct or circumstantial evidence, so there doesn’t have to be a smoking gun. And then the final thing I would know, which is often misunderstood by defendants is that intentional discrimination is not the same thing as animus or hatred of specific groups. So, it is intentional discrimination. For example, if we made us tality, allowed for industrial land uses to be sited in a minority neighborhood, not because they didn’t like the residents, but simply because that’s just politically easy. because of their race, that would be intentional discrimination based on race, even though it may be that none of the decision-makers are themselves personal questions. Just for the impact is a theory that does not require a showing of intentional discrimination. So for example, if we can advance that theory, even if there isn’t evidence to show that the discriminatory impacts of a decision occurred before race, and it was recognized that it was recognized as a viable theory by the Supreme Court, under the Fair Housing Act in the case from 2015, called Texas Department of Housing and Community Affairs versus inclusive communities. So that’s the second benefit of the Fair Housing Act, because as some of you may know, under Title six of the 1964 Civil Rights Act, which is a law under which other environmental justice spaces have been brought. private citizens cannot sue under a disparate impact theory. In 2001, the court Supreme Court decided in Alexandra sandable, that a title six regulation prohibiting disparate impact discrimination for federally funded entities, while the regulation is still valid if it cannot be enforced by private citizens in a lawsuit, so that is no longer To be fair, that is not true under the Fair Housing. However, inclusive communities put some caveats on disparate impact cases. The main, the main one being that statistical disparities alone, between groups of different races cannot, in and of itself, prove a disparate impact. The disparities have to be tied to a specific policy or practice ordinance that caused the disappearance. And if that’s the case, then there is a prima facie case for disparate impact discrimination. The second caveat is the supreme court imported from other civil rights laws, namely employment discrimination laws, a defense call that’s commonly known as business necessity, in the context of a Fair Housing Act case, even if there is a disparity, it will pass muster under the Fair Housing Act, if a defendant can prove that it’s necessary to achieve a valid interest. And finally, I want to talk about our authority to sue under the Fair Housing Act, because that while it’s broad, there are certain limitations on it. And that affects the type of cases that we can accept. So except where HUD refers a case to us, where we’re looking at an affirmative civil rights lawsuit under the Fair Housing Act, the Department of Justice generally has to show one of two things either that there has been a pattern of practice of discrimination, or two, and this one’s a little more complicated, a denial of rights that affects a group of persons. That raises an issue of general public importance, and I’ll unpack that in a moment. But what’s important to understand is that either of those two theories can support a lawsuit by the government under the grounds. We don’t have to show off. So a pattern or practice, which is a term that’s common among civil rights laws, means that the discrimination that’s being challenged as the defendants regular policy or procedure is not merely an isolated, sporadic, or unusual act. A discriminatory war policy that applies generally, is almost always going to be a pattern or practice. So most disparate impact claims that are viable are probably going to be pattern or practice cases. And that is regardless of the number of times the law has been enforced. So oftentimes we’ve had defendants argue that they may have a discriminatory policy on the books or policy those does predict has a discriminatory impact. But they haven’t used it that often. But that’s not how the courts have interpreted pattern of practice, General.

Blower 49:30

So Max, I think we might have to leave it there for now. So the question is, but appreciate all the comments, I would only add to this portion of program that the previous administration basically sat on the Eight Mile complaint that we filed on behalf of the residents there for more than two and a half years. And then only in the last six months of the Trump administration. Did the agency did HUD begin to look at the issue and then, in literally the last month of the administration, had no caused or found that there was no substantiation for claim that there was just pretreatment or disparate impact in the AML community and the way that utility companies handled the complaint or handled the leak. So we have moved the Biden administration, we have moved for reconsideration and ask the administration to take a deeper look at the Eight Mile situation. So with that, I’m gonna close out this portion of the panel. And we’ll open it up to questions from those in the audience. And from the panel. So I wanted to thank you all for this fascinating portion of the event. Thank you.

Subra 50:47

Okay, my name is up. But my picture is not I can deal with

Blower 50:50

on the screen, grabbing some technical difficulties, getting a little more connected. So sorry about that. But we’ll go ahead and get started. And we taped this panel about three weeks ago, was night was interesting to see it again, three weeks later, and I think it covered a lot of good ground. I wanted to start with you, Carla. And looking at the questions from the audience that came in during the playing of the tape. There are several people asked what recommendations you would have given the experiences that you’ve had with a model, your personal experience, on, like, what worked in organizing the community to get the attention of state and federal authorities, what didn’t work? What would what’s your advice to other groups in this situation? And you’re on mute? You’ll have to unmute sorry.

Davis 51:43

Okay, can you hear me?

Blower 51:44


Davis 51:45

Great. Well, thank you for that question. And that’s a very loaded question. In that I think that most of these corporations bank on the fact that the communities are not as well organized, and they don’t have as much political clout as other communities do. So, you know, what we found is that, you know, number one, you just got to get started, right? You just got to organize a team that will be dedicated to making sure that the community is notified of all meeting times notified of what’s going on to the community. Um, one of the things that we didn’t do well, I think, early on, was we didn’t get enough people involved in the planning process. Because it became quickly overwhelming. Like when we had to do our health assessments and things of that nature. You know, we would have 2000 people show up, and we didn’t have enough people taking the information. So I just think from the very beginning, you know, you just need to get a good group of people that are that will be dedicated to keeping the community informed. Definitely leverage political, your, your local political leadership, you know, and making sure that they’re informed as to your meetings and making sure that they’re buying into what you want to do. And start early on start before you have a problem. We didn’t we, we, you know, we came in after the fact I do believe that one of the things that Alicia Canyon had to their advantage was that they already had their community organization established before the spill happened. So I would say organized prior to having an event.

Blower 53:53

Okay, thank you. Marianne, Marianne. wanted to ask you, we talked about opportunity, we have opportunities here, given the new position, you’re in what can What are those opportunities? And what can groups like Gmail residents do to help you more effectively do your job to tee up the issue for agencies like that? Yeah.

Engelman-Lado 54:13

That’s a big question. So I’ll try to take it in turn. So first, I think this is an exciting time, not only in the federal government, but around the country. We have data like we’ve never had before, communities, all the all over the country are doing their own community-based science, which provides information that wasn’t available before about air quality and water quality. We have mapping tools in many states, not in Alabama, but in many states, often supported by state governments that help us identify where cumulative impacts are the greatest on communities that help us to really zero in on what’s going on. The prime example of that is callin virus strain. But there’s something like 20 states that now have these mapping tools that mobilize data for us. We have information about the connection between redlining historically and segregation historically, and where we are today. So I say all that because it’s an all the work is not happening at the federal government, that so much of the work is happening in communities, and in states to push to push all of us to recognize these connections between historic segregation. redlining what’s happening today, and what data we have available that can be used in decision making. I think it’s an exciting moment in the federal government, because the you know, the President has put some muscle behind this, the some of the initial executive orders are telling the whole government look, you got to look yourself in the mirror, and evaluate, do an audit of whether or not your programs or activities are advancing equity. And we’re all doing that we’re engaged in that process right now. And so what can community is, and one other thing I just want to say, given the nature of this conversation, is I am very excited to be working with people in the federal government right now who really want to make transformative change. And that’s not only my fellow colleagues who have just joined the government, but people within the government career, civil servants and others. And a good example of that is title six of the Civil Rights Act of 1964. And the failure over many decades, not just the Trump administration, but many decades to fully enforce title six and to, to implement the promise of title six of the Civil Rights Act in this area. And so we will be an are rolling up our sleeves and figuring out what we can do differently, how we exercise our affirmative authority to do investigations, what data we should be taken, how to hold people accountable. So there’s a lot going on, that’s really exciting. How can people get involved? First, I want to just acknowledge that people are already doing things that are extremely helpful. They’re already engaged in community monitoring, they’re already filing complaints. They’re already organizing as Carlota. Davis has described, that’s all very helpful, that raises the profile, the issues, that makes it known that change needs to happen. So that’s really important. I would also encourage people to participate. And I know people have many priorities. So I don’t want to put a burden on people. But we have public processes, both for rule-making and also right now the White House environmental justice advisory councils meeting their meeting this week on Thursday, those are public meetings, engage, submit comments, let your voices be heard. So you have will have an influence on what we do. And of course, contact us. Let us know what your opinions are. And that will also lift up the work that we need to do for transformative change. Those are only some of the things that popped to mind right now.

Blower 58:08

Thank you. Hey, Wilma, I’m sorry, you’re having technical problems. But can you hear me? I think you’re on mute right now. I wanted to ask you, Wilma, what? You’re on the ground in Louisiana. And you’ve worked with a lot of these communities, looking at the science looking at the impacts. What advice do you have in terms of gathering the data? And to make a case locally that Marianne talked about? Like what would you suggest to people like Carletta who are organizing their communities and trying to gather the facts.

Subra 58:42

So when the community has an issue, and they start organizing frequently, they know they’re sick, they want someone to come in and make them well, but the idea is you have to have enough other information to then go to your local, state and federal agencies environment. on health agencies. So that’s the kind of work I do on behalf of the communities is educating them and empowering them with the information they need to put together to then interact with not only other communities and other areas, but to interact with the agencies, and bring that information to the agencies. And over and over again, we’ve found, as soon as we start introducing that data to the agencies, they start positively responding to the issues associated with that community and where the exposures coming from. And then they do what they can to help identify further, whether it’s the chemicals, whether it’s the media, whether it’s air, the water, the groundwater, the soil. And so all of a sudden, you had the interaction between the agencies and the communities. And frequently the communities get frustrated, because they think it’s not happening fast enough. But as Marianne just talked about, this new administration has opened up a lot more doors. And we all have to work together to put that data together, and then work forward to address the issues that that data tells us about and reduce the emissions and reduce the exposure. So I can always say, I’ll help you identify the situation, then I will help you reduce your exposure.

Blower 1:00:34

Thanks, Max. Wilma talked about opening doors. How do we give given the limitations? under the Fair Housing Act? It’s a powerful act. There are judicial limitations have been imposed more recently, but some of the courts, how do we open doors with the Department of Justice to be able to take action? What kind of documentation substantiation can groups bring to you that it’s helpful to open those doors?

Lapertosa 1:01:03

We have a complaint portal through the civil rights divisions website where anyone can come in and file a complaint and it gets forwarded to the appropriate section, depending on what law is implicated. Of course, a lot of people, the advocacy community who know us better come directly to the section that they know enforces the law. So there’s there’s no requirement to go through the portal. It’s just designed to make it easier for the general public to record complaints to us. But you could always write to us directly. It’s it’s not a formal administrative procedure where, like the EEOC, for example, where you have to go through certain procedures, anyone can come to us email us any information they want. If you go on our website, you’ll you’ll find the email address our general email address, as well as the name of our section chief. And if anyone who has a fair housing environmental justice complaint that has information or evidence to back that up, they can email it to us they can FedEx it to us regular mails, probably not such a good idea, because that’s very slow. But I would just say reach out and provide us whatever you have.

Blower 1:02:21

Okay, thanks. And I note that Maryann had mentioned to me in our portal for that for the conference that there’s an EPA listserv as well, that you can join, which is www.epa.gov, backslash, environmental justice, to join. And we can post that separately as well. Carletta wanted to come back to you in the next couple of years, what are your hopes for your community? What do you realistically hope that you can achieve or that the government can do to help you both locally and globally? next couple of years?

Davis 1:02:55

My hope is, is that the community has really learned a lesson and that we don’t become complacent again, and that we are we remain vigilant. And that really, that the federal government will kind of come in and undergird us with the policies that Marianne was talking about and the efforts so that when we have incidences in our community that we have an avenue to go to, quite often through state politics. communities like ours, are not the ones that are deemed to be the most politically astute or have the most political capital. And so it’s because of that, that we need a direct Avenue directly to the federal government from the community. There needs to be a way that you know, we launched the complaint with the state and we do those things, but if we don’t get resolved Like it’s been Now, over 10 years that we’ve been dealing with this, you know, so if we don’t get results, we need to have an avenue to go directly to the federal government and say, Hey, this is what’s going on, we need you guys to come in and enforce and inspect as to what’s going on. So those are the kinds of things that I hope comes about from the federal government, just the undergirding of these communities, and, again, that our community, you know, factions are really deadly. When it comes to situations like this. And what we experienced early on was there was a lot of factions that happened because private warriors came in and got different groups of people within our communities, on different lawsuits. And so they were all told not to speak to each other. And so therefore, the community was not united. But as long as the community is united, then they can fight together. They’re strong together, their voices her. And so my hope is that, you know, we don’t become fragmented, that we are frightened minutes, and that we continue to stay united and stay on the journey of getting true justice for our community.

Blower 1:05:18

Here’s a question for you. Given that this concern about fragmented communities, and what what can What can one community do to learn from the lessons of another in working on environmental justice clinics? What can communities do to band together to stand on the shoulders of work that’s been done by the communities to not make those same mistakes or waste time?


Engelman-Lado 1:05:45

Perhaps one of the things that’s so exciting about working in the area of environmental justice, since the late 1980s, is that communities have been learning from one another. When the people who were at the first people of color National Environmental Leadership Summit in the late 19, in 1991, report that often, they felt very isolated as if this, this feeling of being dumped on the sense that state and local government is not responsive, felt like it was only their problem. Why, why in West Harlem, do we have the bus depot and the, you know, the multiple sources of pollution, and now the sewage treatment plant and something that felt very local, and then someone in Union town, but why do we have all this and then someone else, and what that did was bring people together into this formal environmental justice movement. So, one way of overcoming that isolation and learning from one another is to be in touch with other groups who are doing this work. And there are many ways in which that happens. There are groups of there used to be something called environmental justice centers, and that idea has a rebirth right now. And I think of Beverly right, and Bob Ballard, at the end, Beverly at the deep south center, working with other historically black colleges and universities to provide support to, to communities, particularly in the coast area, in the south, and southeast. So that they can learn from one another, I think of the clinic, the kind of clinic that I was at, at, at Vermont law school, the environmental justice clinic, and there are other environmental justice clinics at University of Miami. And at Golden Gate, the oldest one in the country at Golden Gate, and some others who provide support and technical assistance precisely as Miss Davis said, so communities can lift themselves up, but have that extra support. I think of other resources and you know, at the federal level, part of the reason that it’s helpful, I hope to share the ej listserv is there are things going on at the federal level, they’re not perfect. We’re reexamining the barriers. We’re trying to figure out what we can do better. But there are small grant programs. There are there is this, the National Environmental Justice Advisory Council, the NEA jack and now there’s a White House environmental justice, the we jack and those have open meetings. So there are opportunities not just to be talking to the federal government, but to be listening and learning from one another. And there are now conferences and other opportunities, which in paradoxically may be a little bit more accessible. Now that we’re online because you know, the cost of travel. So there are downsides and upsides. But I think there are a lot of ways to band together that just one more plug before I stop, which is there are regional and statewide environmental justice. They’re sometimes called networks, sometimes called alliances and like the North Carolina, NC ej North Carolina environmental justice network with the great nymo, Mohammad as the executive director and lead organizer, or the there’s a North Carolina, there’s a New Jersey, a New York Environmental Justice Network and they bring people together on a regional level to share information and strategize. So that’s a good and there’s one in California. That’s a good mechanism to consider. In Alabama, for example, where there are a number of different groups that are working on these issues to come together and to form a network and, and really try to learn from one another and strategize on ongoing basis. So that’s that’s sort of an exciting thing that’s been happening for the last few decades.

Blower 1:09:44

Well, thank you to our panelists. We’re out of time. But this was a great discussion that the dialogue will continue. NCRC is going to continue to be involved in the AML case. We’re continuing to work with our members if they have questions about environmental justice issues, to connect them with the right resources and just continue the kind of activity that we need to advance on this issue. And it’s great that we have people in the administration like Max and Marianne Marianne, who are working on these issues now. So hopefully onward and upward. And thank you again, panelists for your time today. Thank you, thank you.

All 1:10:17

Thank you.

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