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: A mostly Black Alabama county has no municipal sewer service. Can the 1964 Civil Rights Act be used for environmental justice?

In one of the poorest counties in America, at the core of the Deep South’s rural “Black Belt” where sharecroppers worked cotton fields long after Emancipation, sanitation conditions sometimes seem to belong in the antebellum South.

With no municipal wastewater treatment for the predominantly Black communities, most residents devise their own septic systems, which may or may not work, and which can leave raw sewage accumulating in backyards. “Nineteenth-century” diseases like hookworm have been found in many residents.

Now, the Biden administration is making Alabama’s Lowndes County a test case in environmental justice, applying a never-before-used provision from the 1964 Civil Rights Act that advocates say could lay the groundwork for how the federal government addresses some of the worst problems plaguing communities of color around the country.

“This could set quite a significant precedent,” said Jon Greenbaum, chief counsel for the Lawyers’ Committee for Human Rights.

Under the law, known as Title VI, environmental justice concerns haven’t gotten much attention because the legal standards are higher than for other civil rights cases, Greenbaum said in an interview. “It seems the Department of Justice is looking to enforce this more aggressively than it has in the past. It’s sort of tragic that in 2021 in this country we have places that do not have adequate wastewater disposal.”

‘Cesspools of sewage’

Lowndes County, which sits smack in the middle of Alabama, had a median household income of $30,036 in 2019, according to Census data, less than half the national median. About 27% of its residents lived in poverty. There has never been an adequate wastewater system throughout the county, but this negligence impacts some residents more than others.

Credit: Alabama Center for Rural Enterprise CDC, Environmental Protection Agency

In 2017, a United Nations representative described the situation: “In Alabama, I saw various houses in rural areas that were surrounded by cesspools of sewage that flowed out of broken or non-existent septic systems. The State Health Department had no idea of how many households exist in these conditions, despite the grave health consequences. Nor did they have any plan to find out, or devise a plan to do something about it.” 

The racial gaps weren’t lost on the U.N.’s visitor. He continued: “Since the great majority of White folks live in the cities, which are well-served by government built and maintained sewerage systems, and most of the rural folks in areas like Lowndes County, are Black, the problem doesn’t appear on the political or governmental radar screen.”

“‘It’s sort of tragic that in 2021 in this country we have places that do not have adequate wastewater disposal.’”

— Jon Greenbaum

What Lowndes County does have is several committed local activists, including Perman Hardy, who came to national attention for driving many local residents to the polls to vote for Democrat Doug Jones in his race for a Senate seat. Hardy worked with Sherry Bradley, director of the state Bureau of Environmental Services, and together the two women raised $695,000 from local businesses and individuals — enough to secure a follow-on grant from the federal USDA.

In July, just after the grant was awarded, a dispute with the Lowndes County Commission over who actually sat on the sewer board resulted in Bradley having to return the $695,000 to donors and the grant to the USDA. In November, the Department of Justice announced it was opening an investigation into “water disposal program and infectious diseases and outbreaks program in a manner that discriminates against Black residents of Lowndes County.”

It is difficult to draw a straight line from the collapse of a local initiative to the federal government’s decision to take decisive legal action, and the Department of Justice did not immediately respond to a request for comment.

Hardy could not be reached for comment for this article. In response to a MarketWatch inquiry to Bradley, her employer, the Alabama Department of Public Health, sent a statement saying that it “is reviewing the information communicated to it by DOJ and HHS. ADPH will not publicly comment on the allegations made in complaint while investigation is pending. ADPH is committed to cooperating with the investigating agencies to have this matter resolved as quickly as possible.”

The Lowndes County Department of Health responded to a MarketWatch inquiry with the same statement. The USDA representative who managed the grant, Nivory Gordon Jr., did not immediately respond to a request for comment.

Title VI allows the federal government to withhold funds from an entity found to be discriminating on the basis of race, ethnicity, or national origin, and in that way, can be “a very powerful tool,” Greenbaum said.  

The discrimination alleged need not have anything to do with the federal funds that will be withheld, but typically the agency giving out the funds that may be withheld is the one that does the investigation. Since the Justice Department announced the investigation, it may be money for law enforcement, rather than environmental matters or public health, that Lowndes County stands to lose, depending on the outcome of the investigation.

Bottom up and top down

Broadly, environmental injustice is experienced through heightened exposure to pollution and corresponding health risks, limited access to adequate environmental services, lack of cleaner energy options, and loss of land and resource rights, explains the University of Michigan’s Center for Sustainable Systems.

Legal observers say the Biden administration has been vocal about its desire to bring environmental justice into the civil rights arena and has been methodically setting the stage for a case like this one.

Just days after taking office, the White House issued an executive order titled Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, and one week later followed with another, Tackling the Climate Crisis at Home and Abroad, noted Hannah Perls, a fellow at the Environmental & Energy Law Program at Harvard Law.

Read: VP Kamala Harris has a particular climate-change agenda: environmental justice

“There’s nothing different about the laws between Obama and Trump and now Biden, it’s just about having the political will to enforce them,” Perls told MarketWatch.

Perls thinks the Justice Department, through its investigation, is likely to issue guidelines for how the Alabama and Lowndes agencies may come into compliance with what it determines to be necessary. It may also require measures to mitigate the harm done by the lack of adequate sewer system. That will likely take time and energy, she said.

“‘There’s nothing different about the laws between Obama and Trump and now Biden, it’s just about having the political will to enforce them.’”

— Hannah Perls

“It’s important to note that that means ongoing harm in the community and an ongoing burden on these communities to continue to advocate,” Perls said. “We’re starting with a baseline of very low resources, very low capacity. Whatever happens, we will see an administrative burden on these communities.”

But Matt Fabian, a partner with public finance firm Municipal Market Analytics, calls the Justice Department’s move “only a positive.”

“Any kind of order, whether from the state or the federal government, that improves public infrastructure, whether voluntarily or involuntarily, is a positive for the long-term economic health of the area,” Fabian said. “Sometimes governments have to be compelled to invest in themselves and that seems to be happening here.”

Read next: Flint water crisis victims will receive $641 million. Just don’t call it ‘justice’

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