EPA: Judge Lacks Power to Order Faster Bias Probes

SAN FRANCISCO (CN) – The U.S. Environmental Protection Agency told a federal judge Wednesday she can’t make the agency investigative racial bias claims more quickly, even though some complaints languish for decades without action.

The EPA said to its knowledge, no court has ever “enjoined a federal agency to take a certain agency action in the future” when the potential future misconduct has yet to, and may never, occur in a case alleging violations of the Administrative Procedure Act.

Five groups sued the EPA in 2015, claiming the agency ignored its duty to investigate a decade’s worth of complaints about pollution spewing dumps, power plants and refineries that disproportionately impact minority communities.

In March, Senior U.S. District Judge Saundra Brown Armstrong found the EPA repeatedly failed to investigate racial bias complaints as required under Title VI of the Civil Rights Act. She found an injunction requiring the EPA to respond more quickly to the plaintiffs’ future complaints is an appropriate remedy.

“A federal court has broad authority to grant injunctive relief to prevent future misconduct where the ‘defendant’s past and present misconduct indicates a strong likelihood of future violations,'” Brown wrote in her March 30 ruling, citing the 1990 Ninth Circuit opinion, Orantes-Hernandez v. Thornburgh.

But the EPA says a higher authority, the Supreme Court, has “forbidden this form of prospective injunction in an APA case.”

The agency claims an injunction requiring it to act on future environmental racism complaints is both premature and unnecessary. The appropriate remedy, it argues, is for plaintiffs to file a new lawsuit only if the EPA fails to process complaints within the required 180 days.

In their lawsuit, the plaintiffs claimed the EPA failed to issue preliminary findings on five complaints submitted between 1994 and 2005 about landfills, power plants and oil refineries that spew air pollution and cause health problems in low-income and minority areas in Michigan, California, Texas, New Mexico and Alabama.

The plaintiffs had filed complaints over a wood-burning power plant in Flint, Michigan, in 1994; two power plants in Pittsburg, California, in 2000; an oil refinery in Beaumont, Texas, in 2000; a hazardous waste dump in Chavez County, New Mexico, in 2002; and solid-waste landfill in Tallassee, Alabama, in 2003.

Despite finding the EPA improperly held up those investigations, Brown dismissed claims that the EPA had a “pattern and practice” of delaying racial bias probes because the agency can only be sued for specific actions it took or failed to take under the Administrative Procedure Act.

Borrowing that reasoning, the EPA says plaintiffs should not be allowed to seek “sweeping relief” for violations of law that have not yet occurred. Such relief is not available under that section of the law, the agency contends.

“The prospective injunctive relief in the judgment is no more than a ‘follow-the-law’ injunction, which are disfavored,” the EPA states in its motion to alter judgment.

The EPA has requested a hearing on its motion be scheduled for Sept. 12 in San Francisco.

Plaintiffs in the case include Californians for Renewable Energy , Sierra Club, Ashurst Bar/Smith Community Organization, Citizens for Alternatives to Radioactive Dumping and Saint Francis Prayer Center. Maurice and Jane Sugar Law Center for Economic and Social Justice was terminated as a plaintiff in 2016.

Plaintiffs’ attorneys Heather Lewis, Jonathan Smith, and Suzanne Novak, of Earthjustice, did not immediately return emails and phone calls seeking comment Wednesday.

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