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The U.S. Environmental Protection Agency recently formed a task force to clear a backlog of administrative complaints filed under Title VI of the Civil Rights Act of 1964, but the agency’s effort is being watched with a combination of cynicism, hope and suspicion by many in the environmental and civil rights community. The EPA’s role in enforcing Title VI — which bans recipients of federal funds from taking actions that discriminate intentionally or have a discriminatory effect — took on increased importance after the U.S. Supreme Court’s recent decision eliminating private suits to enforce the disparate impact regulations. But the agency has a “terrible” track record, asserted Nathalie Walker of Earth Justice Legal Defense Fund in New Orleans, which has brought environmental racism claims in court and administrative actions. “I’m not optimistic about this task force, given EPA’s past record,” she said. “They don’t know what to do with these claims. And if they say they are going to move quickly now, I have even less confidence that it will be done right.” Since 1993, 121 complaints have been filed with the EPA: 55 have been dismissed, primarily for procedural reasons, such as insufficient allegations or lack of federal funding. Of the remaining 66, 45 are under review for possible investigation and 21 have been accepted for investigation, but none has been resolved and some have been pending for more than five years. ONE ON MERIT In its entire eight-year history of handling Title VI complaints, the agency has decided only one on the merits. That record, and similarly poor records of other federal agencies, are one reason that groups such as the Center on Race, Poverty and the Environment and the NAACP Legal Defense and Educational Fund Inc., argued in the U.S. Supreme Court that private causes of action were critical to Title VI enforcement. The EPA backlog is due in part to a lack of resources, but primarily stems from the 1998 Congressional restriction on the agency to working only on complaints filed before October 1998, said Gail Ginsberg, the task force leader and a regional counsel in EPA’s Region V office in Chicago. The congressional restriction is not in EPA’s pending budget bill, said Ginsberg, who is hopeful it will not appear again. “The task force has been commissioned for two years, and we’d like to get as far as we can recognizing new cases will continue to come in,” she said. “Hopefully, the new cases can be handled by the Office of Civil Rights outside the task force.” The backlog is symptomatic of the EPA’s inability to make civil rights decisions, says Michael Churchill of the Public Interest Law Center of Philadelphia. The EPA, he added, will not take a complaint before the time a permit is issued. And once a permit is issued, the complaint is directed against the recipient of the federal funds, while the permitted company is free to proceed, he said. “There are not many agencies that will have the strength or ability to say, “Sorry, you have to abandon that investment.” The EPA should dismiss all of the complaints, said Richard Samp of the Washington Legal Foundation, a longtime opponent of environmental justice claims. “The agency doesn’t have any workable standards for dealing with this,” he said. “And it is an inherently standardless area.” But not everyone is pessimistic about the task force. Environmental justice scholar Sheila Foster of Rutgers University School of Law said, “A lot of people who care about this issue are waiting to see what signal would come out of the administration about this. A lot of this comes down to whether, after the Supreme Court decision, the executive branch has political will to do something. This announcement means yes, there is some political will.”

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