A Title VI Environmental Justice (EJ) Complaint is a formal complaint to the Environmental Protection Agency (EPA), under Title VI of the Civil Rights Act of 1964, alleging that a recipient of EPA funding is illegally discriminating.
Filing a Title VI EJ Complaint is not the same as filing a lawsuit. Instead, filing a Title VI EJ Complaint compels the EPA to investigate your claim and decide if the program is discriminatory. Depending on its findings, EPA could force the program at issue to substantially change or shut down altogether.
The Title VI EJ Complaint historically has not been as successful as some of the other tools in this toolkit. However, it is a tool you should be aware of, because it can lead to good results, and may become a more potent tool in the future as EPA increases its commitment to environmental justice.
In recent years, beginning in 2017, EPA has taken steps to improve the procedures of the External Civil Rights Compliance Office, and has indicated that the office will continue to be improved. The current EPA Administrator Michael Regan has made strengthening EPA’s use of Title VI a priority, and under his administration EPA has begun several investigations into alleged discrimination.
This chapter introduces the Complaint and gives its legal framework. Then, it explains the process of filing a Title VI Environmental Justice Complaint with EPA and attempts to help you set your expectations for the EPA’s response.
Though you do not need a lawyer to file a Title VI EJ Complaint, we recommend consulting with a lawyer to help you draft a strong complaint and make sure your complaint meets EPA’s requirements to be considered.
Any person who believes that they individually, or a specific group of people, have been discriminated against by a recipient of EPA assistance may file a Title VI Environmental Justice Complaint.
The person files an Environmental Justice Complaint against a recipient — “a program or activity receiving EPA assistance.” Recipients may be state or local governments or private parties. EPA assistance includes any grants, loans, cooperative agreements, donations of Federal property or use of Federal property, services of EPA personnel, or any other arrangement providing financial value to a recipient.
The Title VI Legal Framework and Environmental Justice Complaints
In legalese, the word “title” sometimes refers to a section or chapter of a law. Title VI of the Civil Rights Act of 1964 seeks to ensure equal treatment under the law and consistent and effective enforcement of the law regardless of race, color, national origin, sex, disability, and age.
The notion of equal treatment comes from the Fourteenth Amendment of the U.S. Constitution, which states that no person shall be denied the equal protection of the law. Sections 601 and 602 of Title VI incorporate these Fourteenth Amendment ideals into legal requirements by prohibiting agencies like the EPA from intentionallyor unintentionally discriminating.
Section 601: Intentional Discrimination
Section 601 of Title VI says “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
To establish a case of discrimination under Section 601, complainants challenging an agency decision must demonstrate that the agency’s decision was motivated by a desire to intentionally discriminate. This requirement has proved to be a difficult burden for environmental justice complainants to satisfy.
Section 602: Unintentional Discrimination
Section 602 of Title VI directs agencies distributing federal funds to issue regulations implementing Section 601, and mandates that these agencies create a mechanism for processing complaints of racial discrimination.
Like other agencies, EPA issued regulations implementing Section 601. Under Section 602, proof of unintentional discrimination or “disparate impact” can establish a violation.
A program has a disparate impact if it disproportionately excludes people from benefits or services or inflicts a disproportionate share of harm based on race, color, or national origin (including disparate impacts upon people who have limited English-language skills), even though the agency did not intend to discriminate.
If an agency makes a finding of disparate impact, Title VI allows for it to revoke, amend, or suspend funds or permits issued to a state or local government agencies or private parties.
The EPA External Civil Rights Compliance Office (ECRCO)
The EPA External Civil Rights Compliance Office (ECRCO) is responsible for ensuring that recipients of EPA financial assistance comply with EPA’s non-discrimination policies pursuant to EPA’s regulations implementing Title VI of the Civil Rights Act of 1964 and is responsible for investigating and responding to Title VI Complaints.
What to Expect from the EPA
EPA’s Response Record is Poor
The EPA can use Title VI as a powerful tool to address environmental justice and remediate discrimination, but ECRCO has historically been unable to meet regulatory deadlines, has delayed responding to and addressing Title VI complaints, and has never denied or withdrawn financial assistance from a program due to a Title VI complaint. It has only made one finding of discrimination, in 2017, and that finding came 25 years after the St. Francis Prayer Center of Flint, Michigan filed its Title VI Complaint in 1992.
In 2016, the U.S. Commission on Civil Rights published a report entitled “Environmental Justice: Examining the Environmental Protection Agency’s Compliance and Enforcement of Title VI and Executive Order 12,898” where it documented two disheartening themes.
First, EPA has struggled to provide procedural and substantive relief to communities of color impacted by pollution and failed to provide substantive results that would improve the lives of people living in already overly-burdened communities.
Second, EPA has not acted when faced with environmental justice concerns until forced to do so — and when it has acted, it has done the minimum possible.
According to the U.S. Commission on Civil Rights’ report: EPA is known for administrative delay in processing complaints, having an inadequate system for resolving complaints, referring the majority of the complaints to other agencies, not engaging complaints in alternative dispute resolution, and for timid (if not entirely lacking) enforcement . . . EPA’s inability to timely process or resolve Title VI complaints has resulted in recipients of EPA funding not being held accountable for alleged discrimination.
The EPA Rejects the Majority of Title VI Complaints
ECRCO has historically rejected or dismissed a majority of the Title VI Environmental Justice Complaints that it received. A Center for Public Integrity study also indicated that ECRCO has neglected to conduct investigations even when it had reason to believe that an EPA recipient has a discriminatory policy.
ECRCO rejects complaints for three main legal reasons.
You should be aware of these reasons and ensure that any complaint you file with EPA does not fall into one of these three traps.
1. Failure to target a recipient of EPA financial assistance.
The EPA will reject your complaint if the target of the complaint is not a recipient of EPA financial assistance, because the EPA only has jurisdiction over complaints if the target is a recipient of EPA financial assistance. The Center for Public integrity found that ECRCO rejected 95 complaints (out of a study of 265) because the target of the complaint was not a recipient of EPA financial assistance.
2. The Complaint falls outside of the 180-day time limit to file a complaint with EPA.
A Title VI Complaint must be filed within 180 calendar days of the last act of alleged discrimination. ECRCO has the authority to waive the 180-day time limit for good cause, but the Center for Public Integrity noted that of the complaints where the target of the complaint did receive EPA financial assistance, ECRCO rejected 62 complaints because the complaints fell outside of the 180-day time limit to file a complaint with EPA.
3. Failure to properly allege a forbidden discriminatory act pursuant to Title VI.
Additionally, the Center for Public Integrity found that ECRCO rejected 52 complaints for failing to properly allege a forbidden discriminatory act pursuant to Title VI.
ECRCO Fails to Include Community Stakeholders
When Settling Complaints
When ECRCO accepts a complaint for investigation, it will often attempt to resolve the complaint through informal methods such as alternative dispute resolution – meaning that EPA will seek to negotiate a resolution with the alleged discriminating party. In this process ECRCO has often excluded the affected communities from the settlement process.
ERCO and the Angelita C. Case
ECRCO’s handling of the Angelita C. case exemplifies the practices that can exclude the impacted communities.
On June 20, 1999, residents of California filed a Title VI complaintwith ECRCO alleging that the California Department of Pesticide Regulation was discriminating against Latino school children by permitting the use of methyl bromide, a highly toxic fumigant agricultural chemical, near schools.
The complaint stated that school children of color in California suffer a much greater risk of exposure to methyl bromide than their white counterparts. ECRCO accepted the complaint for investigation on December 11, 2001 — more than two years after the plaintiffs filed their complaint.
ECRCO did not issue its preliminary findings until April 22, 2011, when it concluded there was sufficient evidence to make a preliminary finding of a violation of Title VI because the application of methyl bromide between 1995 and 2001 had caused an adverse disparate impact upon Latino schoolchildren in California. ECRCO did not notify the complainants or their attorneys about its findings. EPA entered negotiations with the California Department of Pesticide Regulations to settle the complaint.
The EPA entered into a settlement agreement that changed little because it knew methyl bromide use would be discontinued before entering it. The settlement agreement specified that the agreement did not constitute a determination that the party using methyl bromide was noncompliant with either Title VI or EPA’s regulations. The settlement required additional monitoring of the soon-to-be-discontinued methyl bromide near schools and public outreach by the California Department of Pesticide Regulation.
So, what the plaintiffs got — after 12 years of waiting — was exclusion from the settlement process, no formal recognition of the environmental injustice they faced, and a promise to monitor the methyl bromide that was already slated to be discontinued.
The history of EPA’s management of Title VI complaints does not inspire confidence.
On the other hand, there is no state environmental justice law in Georgia as of the time of publication, and EPA’s Title VI program does exist specifically to remediate discriminatory and disparate impacts of EPA actions.
With public scrutiny and pressure, and EPA’s growing institutional commitment to environmental justice, Title VI complaints could become much more powerful. EPA has also taken steps to improve ECRCO’s procedures, beginning in 2017, has indicated that the office will continue to be improved, and has made Title VI enforcement a priority of Administrator Regan’s tenure.
While success (especially quick success) is unlikely to result from filing a Title VI complaint with EPA, the program remains a tool that you should be aware of, and one we can all hope will deliver better results in the future.
How to File a Title VI Complaint with the EPA
What follows is a three-step procedure for filing a Title VI Environmental Justice Complaint and a timeline of how EPA should respond. If you believe you have been discriminated against, either intentionally or unintentionally through a disparate impact, and therefore wish to file a Title VI Environmental Justice Complaint, you must follow EPA’s requirements. If you fail to follow these procedures, EPA will likely not consider your complaint.
Three-step Procedure for Filing and Pursuing a Title VI Environmental Justice Complaint
Step 1: Determine Whether the Party Discriminating Against You is a Recipient of EPA Funding or Assistance
EPA sometimes directly issues permits, and frequently funds programs or activities administered by state level agencies or other organizations, including private parties.
Organizations receiving EPA financial assistance are called “recipients.” You can view recipients of EPA grants in the USA Spending online database. Enter “Environmental Protection Agency” under “Awarding Agency” and/or “Funding Agency,” and set the location to Georgia.
However, even if the organization does not appear in this database it could still be a recipient of EPA support or funding, so be sure to research where the project in question obtained its funding or permit. Many local governments and utilities receive EPA assistance for activities such as maintaining sewage treatment plants.
Step 2: Make Sure Your Complaint Meets All Four of EPA’s Title VI Requirements
Your complaint must comply with four requirements for the EPA to act upon your claim.If all four requirements are not met, EPA will not accept your allegations for investigation. If you fail, for example, to file the complaint within 180 days or clearly allege how the act was discriminatory, EPA can deny your claim without investigating your allegations.
If you realize after the complaint has been sent that it does not meet all the requirements, you can amend it before EPA renders a decision. To avoid complications and possible denial, the amended complaint should also be filed within the 180-day deadline. Giving yourself time to fix a potential mistake is one reason to file a complaint as soon as possible after the discriminatory act.
EPA’s Four Title VI Requirements
1. The Complaint must be made in writing.
Complaints must be made in writing. You can submit the Complaint by:
U.S. EPA External Civil Rights
Compliance Office, 2310A
1200 Pennsylvania Ave., NW
Washington, D.C. 30460
2. The Complaint must describe a discriminatory act that violates EPA’s Title VI regulations.
In other words, the complaint must give a detailed description of discrimination that is based on race, color, or national origin.
The alleged discriminatory act is the foundation of your complaint. A discriminatory act may be a town hall meeting where the affected community was not represented, the passing of a discriminatory zoning ordinance, the approval of a landfill site, or many more. See below for more detail on discriminatory acts.
Be as specific and detailed as possible when describing the discrimination and consult with a lawyer if possible. State everything you know about:
Each discriminatory act (like dates and locations)
Who or what organization or individuals were involved
Who was affected
The discriminatory effects the program has had on you, your group, or your community
Any other information that may be pertinent
If you believe the recipient had a discriminatory intent, you should also:
Describe the actions or statements that show discriminatory intent.
Explain how they show discriminatory intent.
State how you gained knowledge of these actions or statements.
Include copies of any source material you have to provide more information or back up your statements.
Determining Whether You Have Been Discriminated Against Within the Meaning of the Regulations
Discriminatory intent requires that the recipient intended to affect a person or group based on race, color, national origin, age, or sex. Discriminatory intent (also called disparate treatment) is harder to prove than unintentional discrimination through a discriminatory effect (also called disparate impact).
You can make a claim alleging intentional discrimination by showing a recipient intentionally treated individuals differently or otherwise knowingly caused them harm because of their race, color, national origin, disability, age or sex. To do this, you must show that “a challenged action was motivated by an intent to discriminate.” To show intent to discriminate, you must show that the recipient was aware of the complainant’s protected status, and that the recipient acted, at least in part, because of the complainant’s protected status.
The clearest way to demonstrate intentional discrimination is through direct evidence like a policy, statement, or decision that clearly and explicitly discriminates.
You can also demonstrate intentional discrimination through circumstantial evidence of discriminatory intent. Below is a non-exhaustive list of the types of evidence may be considered.
The sequence of events leading to the decision at issue.
A departure from standard procedure (such as a hastily-called agency meeting or the failure to consider factors that would ordinarily be considered).
Legislative or administrative history (like the minutes of official meetings).
The foreseeability of the effects of the action.
A history of discriminatory or segregation-promoting conduct.
Determining a decisionmaker’s intent will be easier if you have been involved in the decision-making process throughout, using the other tools covered in this toolkit. If you have been in contact with a decisionmaker, or submitted comments on a proposed action, or attended public meetings, you will be in a stronger position to show the sequence of events, statements made by the decisionmakers, or whether your concerns were treated with seriousness and respect.
You can also make a claim alleging unintentional discrimination through a discriminatory effect, often called a disparate impact.
A program has a disparate impact if it disparately excludes people from benefits or services or inflicts a disproportionate share of harm based on race, color, or national origin. The decisionmaker’s intent is not at issue here, only the consequences of the policy or decision.
You can show disparate impact if you can show that a policy or decision does not explicitly differentiate between groups on the basis of race, for example, but the policy is administered in a discriminatory manner.
To prove a program has a disparate impact you can use the same types of direct and circumstantial evidence referenced above to do the following four things:
Identify the specific policy or practice.
Show that the recipient’s policy or practices causes adversity or harm.
Show that there is a disparity in the policy or practice’s harm based on membership of a protected class.
Show that there is a causal connection between the recipient’s policy or practice and the impact, usually shown through statistical data.
3. The Complaint must be filed within 180 days of the alleged discriminatory action.
You must file your complaint within 180 days after the last discriminatory action occurred, not 180 days after you first noticed the effects of the discriminatory act. The safest way is to submit a complaint well before the deadline in case there is some complication concerning its receipt by the proper office.
If your community was not aware of the discriminatory act within 180 days after it occurred, you can request a waiver of the filing time requirement and you might be allowed to file a complaint anyway, depending on the discretion of ECRCO.
4. The Complaint must allege discriminatory acts committed by an organization that has received funding from the EPA.
Not every organization involved in a project may have received funding from the EPA. Under Title VI, the EPA is only responsible for its own actions and for those of organizations over which it has some financial control.
Regarding subcontractors, EPA-funded organizations may not be responsible for the actions of non-EPA funded organizations, even if they are working on the same project. Furthermore, EPA cannot be held responsible for the actions of other federal-level agencies, such as the Army Corps of Engineers or the Department of the Interior. Such agencies are directly and separately responsible under Title VI.
If your complaint regards a non-EPA agency funded project, your complaint will need to be filed with the agency in charge of the project. Based on what you have learned in this chapter, search for that agency’s Title VI complaint procedures.
Step 3: File the Complaint
File your complaint through mail to the EPA External Civil Rights Compliance Office (ECRCO):
U.S. EPA External Civil Rights
Compliance Office (2310A)
1200 Pennsylvania Ave., NW
Washington, D.C. 20460
You can also file your complaint through e-mail to Title_VI_Complaints@epa.gov. If you have questions, you can contact ECRCO at those addresses or by calling (202) 564-3316.
You filed your complaint! What happens next?
The Angelita C. case illustrates that the EPA does not always follow its own legally mandated procedure. However, below is a timeline of what EPA’s regulations say should happen once you file your complaint.
ECRCO must notify you it has received your complaint within 5 days of receiving it. ECRCO will also notify EPA that an Environmental Justice Complaint has been filed against the agency. After acknowledging receipt of the complaint, ECRCO will initiate complaint processing procedures.
Within 20 calendar days of acknowledging the complaint, ECRCO should review the complaint for acceptance, rejection, or, if EPA is not the appropriate recipient of the complaint, referral to the appropriate agency.
Please keep in mind that “accepting” a complaint does not mean that ECRCO has decided to grant any remedy you request in the complaint, it only means that your complaint has met the requirements for EPA to review it.
If the complaint is accepted, ECRCO will notify you. In addition, ECRCO will notify the recipient of the allegations and give the recipient the opportunity to make a written submission responding to, rebutting, or denying the allegations in your complaint.
The party complained against has 30 calendar days from receipt of ECRCO’s notification to respond to ECRCO acknowledging notice of the complaint.
If ECRCO’s investigation reveals no violation, it will dismiss the complaint. If this occurs, ECRCO will notify you and the recipient.
Once the EPA accepts the complaint, the resolution process begins. Whenever possible, complaints are resolved informally. When a complaint cannot be resolved informally, ECRCO will mail a post-review notice to those responsible for the discriminating program within 180 days of the start of the investigation. This notice will include preliminary findings, recommendations for achieving voluntary compliance, and an explanation of the recipient’s right to engage in voluntary compliance negotiations.
After receiving the post-review notice, the recipient may either agree to ECRCO’s recommendations or submit a written response demonstrating that the preliminary findings by ECRCO are incorrect or that compliance may be achieved in a way not suggested by ECRCO. The recipient has 50 days after receiving the preliminary notice to take either of these steps. If the recipient takes neither action in that period, then ECRCO has 14 days to write a formal determination of noncompliance and sends it to both the recipient, the EPA official responsible for funding the program, and the Assistant Attorney General.
Finally, the recipient has 10 days from receipt of the formal determination of noncompliance to come into voluntary compliance. If it does not, ECRCO must begin proceedings to deny, suspend, annul, or terminate EPA’s assistance to that program.
 See Alexander v. Sandoval, 532 U.S. 275 (2001).
 See Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673, 680 (S.D. Tex. 1979). The plaintiffs alleged the EPA intentionally discriminated against them based on the siting of a solid waste facility in a minority community. To show intentional discrimination, the plaintiff relied on statistical data. The court ruled against the plaintiffs because they were unable to provide sufficiently detailed facts to show that the decision was based on intentional discrimination.