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By Rachel Leven
The Environmental Protection Agency program that is supposed to punish environmental racism has been moved out of the agency’s Office of Civil Rights to the Office of the General Counsel, a step that partially satisfies long-time calls from advocates, Bloomberg BNA has learned.
Proponents said it could end up protecting civil rights and certain other non-discrimination enforcement from administrations that don’t prioritize these activities.
“A lot of people say that sometimes offices [in the EPA] are kind of off the radar, and so you can still try to do the work,” Lisa Garcia, former senior adviser to the administrator on environmental justice, told Bloomberg BNA. “I may be speculating, but I am expecting that the next administrator is not going to make civil rights a priority.”
The move is intended to strengthen the agency’s ability to execute its enforcement responsibilities in these areas, the EPA told Bloomberg BNA in a Jan. 4 e-mailed statement.
The EPA’s has been widely criticized by the U.S. Commission on Civil Rights, advocates and others for not aggressively enforcing Title VI of the Civil Rights Act. That section bars federal funding recipients from discriminating based on race, color or national origin. The EPA has never issued a formal finding of discrimination under the law.
Many advocates are wary of what the incoming Trump administration will mean for civil rights and environmental justice. They are ready to give the administration a chance to follow the law, and they are ready to fight, especially if the new administration doesn’t exert itself in this area, advocates say.
In December 2016, the EPA moved its existing external compliance program, which is charged with enforcing laws that prohibit racial and other kinds of discrimination, from the civil rights office to the agency’s Office of General Counsel. The new External Civil Rights Compliance Office within the general counsel’s office will be charged with enforcing the same laws as it did before. These include laws barring discrimination based on race, sex or disability, the EPA said.
No public announcement was made on the change. The EPA civil rights office will focus on issues such as equal employment opportunity.
The move makes the EPA unique among federal agencies. Garcia, who now serves as the vice president of litigation for communities at Earthjustice, said other agencies generally house their Title VI programs in their Offices of Civil Rights.
This has been a long time coming—at least seven years, according to advocates. Vernice Miller-Travis, a longtime civil rights advocate, told Bloomberg BNA that the move could help give the program new teeth. That’s a similar thought to the EPA’s own stated goal of strengthening its program through a reorganization.
In the past, Title VI-focused advocates had argued for the program to be housed with the agency’s enforcement office. However, Garcia said as long as staff acknowledge the differences between environmental and civil rights law, the Office of General Counsel could also prove beneficial as an umbrella for Title VI since its staff is skilled at legal assessments.
Garcia said that to a certain extent, the office where these tasks are executed is irrelevant. “You can keep shifting the office but if you don’t give it the resources and right procedures in place, it’s not going to get done,” she said.
Garcia and Miller-Travis agreed that whether intentional or not, the move could help shield civil rights activities in an administration that is less focused on this area of enforcement.
Miller-Travis said there was a lack of progress on environmental civil rights until President Barack Obama took office, and that there is still a lot of work remaining. She said this move by the agency could offer protection from being “shut off in a box as they have been up until this administration.”
Miller-Travis said this protection comes from the general counsel’s responsibility to do what’s legal, as opposed to other offices such as enforcement that could be more affected by the administrator’s or White House’s policy priorities and preferences.
But Garcia suggested that the new-found anonymity of the office may cut both ways. The Office of Civil Rights is under the Office of Administrator’s umbrella, meaning the administrator is relatively looped into decision-making. However, the move to the Office of General Counsel is one additional step away from the administrator. This may mean its activities will not be reported as closely to the administrator, given the rest of the general counsel’s docket such as court case updates and coordination.
At the end of the day, Miller-Travis praised the administration’s effort. Through this and other steps the EPA has taken, there will be a clearer path and clearer responsibilities for future administrations on civil rights, she said, even if “it remains to be seen whether or not this [step] will have an effect.”
Still, she added, “Why they waited until the final three weeks? I don’t know.”
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