Flint Crisis Warrants EPA Civil Rights Review: Attorneys

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By Rachel Leven

July 11 — The water crisis that wreaked havoc on Flint, Mich., this past year has raised questions about how decisions that resulted in high concentrations of lead fouling residential tap water may have had a race-based discriminatory impact.

The lead contamination, which can cause numerous health impacts, affected a city of mostly African American residents.

A number of former federal officials told Bloomberg BNA they think the Environmental Protection Agency should investigate potential civil rights violations in the Flint water situation.

“There should always be accountability. [The Civil Rights Act of 1964] was a big ask of the civil rights movement in reaction to the Jim Crow laws,” Albert Huang, director of environmental justice and a senior attorney for the Natural Resources Defense Council, told Bloomberg BNA. “It was the promise of how we were going to equally treat people of color …When you fail to enforce those laws, you can see history repeat itself, so there has to be accountability.”

The agency hasn't ruled it out.

Investigations Mount

The EPA is reviewing complaints and gathering information to determine whether it can initiate a formal civil rights investigation. The Michigan Department of Civil Rights has begun its own investigation into the water crisis and will hold its second public hearing July 14.

A federal civil rights investigation could be launched by the EPA under Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352), which prohibits programs that receive federal funding—like the state of Michigan, and some departments directly involved with Flint's water decisions such as the Michigan Department of Environmental Quality—from discrimination or actions that have a discriminatory impact based on race, color or national origin.

But the EPA’s Office of Civil Rights has never issued a formal finding of discrimination at any point in its history, the Center for Public Integrity found. The center is a nonprofit, nonpartisan organization that does investigations and analyses of public service, government accountability, and ethics, according to its website.

The Michigan Department of Environmental Quality that is charged with regulating Flint water didn't respond to Bloomberg BNA's request for comment on whether a civil rights investigation would be appropriate or whether it had taken any steps to ensure protection of civil rights following the water crisis. The city of Flint said it receives technical assistance from the EPA, but was unsure whether it received financial assistance.

The Complaint

Flint resident Rhonda or “Rho” Kelso said she e-mailed the EPA Office of Civil Rights over Flint water issues in February 2015, and Bloomberg BNA obtained a copy of that e-mail.

Kelso said she eventually got a letter from the EPA acknowledging receipt of the complaint, but not until March 9, 2016—nearly 13 months after she said she filed the complaint.

In its letter to Kelso, the EPA said it had received her complaint on March 8, 2016 (see related story).

The EPA said the Privacy Act of 1974 barred it from confirming or denying its receipt of Kelso's letter and so would not comment on the apparent timing discrepancy. But the agency did confirm in general that it has received e-mails related to the Flint water issue.

In her letter to the EPA, Kelso alleged that only residents of Flint were “singled out (segregated)” by the drinking water crisis caused when the city switched its water source to the Flint River in April 2014. The rest of Genesee County, she said, continued to get its water from Lake Huron, which is treated by Detroit's water utility, and has not experienced problems with its drinking water.

While the lead contamination wasn't widely known in February 2015, Kelso's e-mail focused on a city notice acknowledging other concerns: that the levels of total trihalomethanes, potential carcinogens, exceeded federal Safe Drinking Water Act standards for much of 2014.

Criteria for a Complaint

Several attorneys told Bloomberg BNA that Kelso's e-mail seemed to match the qualifications for the agency to accept it as a civil rights complaint:

  •  Kelso believes she has been discriminated against by at least one entity that has received federal financial assistance—the Michigan environment agency—and she uses the word “segregated” that could refer to race;
  •  She submitted the complaint in writing;
  •  Her e-mail describes water contamination, and refers to both the April 2014 water-source switch and the city's notification of the water contamination; and
  •  Her e-mail was sent within 180 days of notification by the city of the water problems, at least under Kelso's timeline.


U.S. Census figures show 57 percent of Flint's population is African-American.

Complaint Needed?

But even if the complaint did not match up with legal requirements, the agency can still act, attorneys said. In circumstances when the EPA “has reason to believe that discrimination may be occurring” in programs or activities utilizing federal funds, the agency’s civil rights office can conduct compliance reviews of those entities, according to its regulations.

In the Flint water crisis, many attorneys pointed to evidence of discrimination and discriminatory impact in the handling of the city’s water.

Marianne Engelman Lado, a senior staff attorney with Earthjustice, told Bloomberg BNA that public reports, publicly released e-mails and news coverage—including news reports that some government information about the water contamination wasn’t even available in Spanish—showed discrimination.

Patrice Simms, a former EPA staff attorney and former deputy assistant attorney general in the Justice Department’s Environment and Natural Resources Division, told Bloomberg BNA that statements in a report released by the state-appointed Flint Water Advisory Task Force “are consistent with the kind of findings that would serve as the basis for a complaint.”

“Flint residents, who are majority Black or African-American and among the most impoverished of any metropolitan area in the United States, did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities,” the task force report said. “Moreover, by virtue of their being subject to emergency management, Flint residents were not provided equal access to, and meaningful involvement in, the government decision-making process.”

The EPA did not indicate that a compliance review would be the appropriate route for addressing the issue.

“A civil rights compliance review by EPA involves an investigative process that, by its nature, won’t address the immediate health concerns in Flint,” the agency told Bloomberg BNA in an e-mail.

Rarely Used Tool

Moreover, any EPA use of that enforcement tool authorized under the Civil Rights Act seems to be rare.

The agency said it completed one compliance review in 2011, which centered on the Louisiana Department of Agriculture and Forestry and found that the state agency didn’t have an active language access program that would provide “meaningful access” for migrant agriculture workers to its pesticide Worker Protection Standard program. This resulted in the state agency committing in a settlement to contract with Spanish translators for help in providing access to the program to the workers.

It declined to specify whether it had completed other reviews.

When entities involved in the water crisis were asked by Bloomberg BNA whether their offices violated the civil rights law, answers varied.

Actors in Crisis

Kristin Moore, public relations director for the city of Flint, told Bloomberg BNA in an e-mail, “we know there is plenty of blame to go around” and the city is leaving determinations of responsibility to investigators.

“What we do know is that those who are found responsible for this water crisis must be held accountable,” Moore said.

The county seemed to assert that it wouldn't be the appropriate target for this investigation. Mark Valacak, a health officer for the Genesee County Health Department, said in an e-mailed statement through the Genesee County Board spokeswoman that the county doesn't have jurisdiction to enforce the Safe Drinking Water Act. The Michigan environment department has oversight over drinking water, though, he said.

“The county was told repeatedly by the MDEQ [Michigan environment agency] that the Flint city water met EPA requirements,” Valacak said, adding that the county nonetheless issued a public health emergency declaration Oct. 1, 2015 that declared the water unsafe. “Most county facilities are in the city of Flint and use Flint water. We were exposed and mislead just like the residents of the city.”

Michigan's environment agency didn't respond to a request for comment.

Open and Shut Case?

If the EPA investigated, would there be a sure-fire civil rights violation?

A former EPA official, who requested anonymity, told Bloomberg BNA that these investigations are difficult. To make a finding of disparate impacts in Flint, the EPA would need to compare the approach in Flint to that taken in non-minority communities in the state, and then try to line up the facts as close as possible to show differences between actions in different communities, the former official said.

Ultimately, some still doubted the EPA would initiate an investigation in any form on the water crisis. Brent Newell, legal director for the Center on Race, Poverty and the Environment, said it would be unlikely for the EPA to even accept a complaint against state entities for investigation related to Flint water because the agency itself also has been criticized for delayed action in the case.

People also have raised Flint-like scenarios to the EPA in the past in complaints and the “EPA has found ways not to act,” Newell said.

But Earthjustice's Lado said asking the EPA to consider using its civil rights authority should not be viewed as an extraordinary step.

“We’re not asking EPA to make an example of anybody,” she said. “We’re just asking EPA to enforce the law and do its job.”

To contact the reporter on this story: Rachel Leven in Washington at rleven@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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