By Robert García, Brent Newell*, and Madeline Stano**on August 29, 2013 10:30 AM
David Garcia was 14 years old and a student in high school in 1999 when his mother Maria first filed an administrative complaint with the United States Environmental Protection Agency (EPA) to stop toxic pesticides that disproportionately harmed David and other Latino students in California. Fourteen years later, EPA has yet to right that wrong. David is now an adult with two children of his own who will attend the same schools he did. David, his mother Maria, and his sister Angelica have filed a lawsuit against EPA for its failure to properly investigate their 1999 complaint, include them in the process, and protect them from continuing toxic harms.
Based on its own investigation and the 1999 complaint, EPA in 2011 issued a preliminary finding of discrimination against the California Department of Pesticide Regulation (CDPR). EPA made a preliminary finding of a violation of discrimination under Title VI of the Civil Rights Act of 1964, as a result of the adverse disparate impact upon Latino schoolchildren in California from the application of methyl bromide between 1995 and 2001. This was the first time in its 43 year history that EPA had ever issued such a finding. Incredibly, EPA then secretly settled the matter and dismissed the administrative complaint -- without providing harmed students any remedy; without including Maria, David, and others in the process; and without even telling them EPA had secretly dismissed their complaint.
Plaintiffs Maria Garcia, her son David Garcia, and her daughter Angelica Guzman, for themselves and their children and grandchildren, filed the lawsuit against EPA in federal district court in San Francisco on August 23, 2013. Plaintiffs are represented by the Center on Race, Poverty & the Environment (CRPE), California Rural Legal Assistance, Inc., Farmworker Justice, and The City Project. Plaintiffs allege that EPA violated their rights under the federal Administrative Procedures Act, which prohibits arbitrary and capricious actions by EPA. Plaintiffs also allege EPA violated their rights to a remedy and to attend schools without harmful exposures under the Due Process Clause of the Fifth Amendment of the United States Constitution.
David suffered exposure to disparate and adverse levels of methyl bromide while attending Rio Mesa High School in Oxnard, California, according to the suit. Human exposure to high concentrations of methyl bromide can result in complete central nervous system and respiratory system failure in addition to causing severe harm to the lungs, eyes and skin.
EPA specifically found as follows in its investigation regarding methyl bromide:
- exceedances, to a limited extent, for short-term exposure (1 days to 30 days) above EPA's threshold of concern (34 ppb) [parts per billion];
- exceedances, to a wider extent, for chronic exposure (more than 6 months) above EPA's threshold of concern (1.3 ppb) and;
- an adverse disparate impact upon Latino schoolchildren with respect to the application of methyl bromide between 1995 and 2001.
The overall use of soil fumigants has changed over time, but overall use has not declined substantially, according to the plaintiffs. Thus CDPR has published the following data on fumigants from 1988 to 2010.
Data Source: CDPR Pesticide Use Reporting data
In EPA's investigation, Rio Mesa High School exceeded all twelve exposure scenarios that EPA used to measure exceedances beyond federal health-based standards.
Rio Mesa High School is in a zip code that falls within the top 10% of areas with the highest environmental pollution, according to the state of California.
Harmful contaminants in their schools are part of a broader pattern of environmental inequities for Maria Garcia and her children and grandchildren. There are ten incorporated cities in Ventura County. Oxnard, where the Garcias live, is one of the three cities where over two thirds of the residents are Latinos. More than 18% of the children in Oxnard live in poverty, compared to a county average of 8.7%. Cities such as Oxnard with the highest proportion of Latino children have the highest rates of overweight in the county. Only 37.1% of 9th grade children in Oxnard schools are physically fit, compared to 61.9% in disproportionately white and wealthy Ojai nearby.
Racially restrictive housing covenants were used in Ventura County through the 1960s. Latino, black, and Asian residents were allowed to live only in certain parts of town known as "set asides," leading to the creation of barrios such as "La Colonia" in Oxnard. Non-white farmers were not allowed to own the land they farmed, according to The City Project.
EPA has a longstanding history of failing to process Title VI complaints in a timely manner. Indeed, a federal court of appeals criticized EPA in 2009 for its "sad" and "unfortunate" failure to process a single complaint from 2006 or 2007 in accordance with its regulatory deadlines. Deloitte Consulting published a report in 2009 finding that EPA has not adequately adjudicated Title VI complaints, Evaluation of the EPA Office of Civil Rights. In response, EPA issued its own report on Developing a Model Civil Rights Program for the Environmental Protection Agency. Title VI and its regulations prohibit discrimination based on race, color, or national origin by recipients of federal financial assistance, such as CDPR.
Maria and David Garcia tried to persuade EPA to reopen the investigation and settlement agreement to include them, but EPA refused. EPA's refusal led to the present lawsuit.
It doesn't have to be that way. EPA can engage in transparent and democratic negotiations with plaintiffs and CPDR. EPA has done so before. For example, EPA, The City Project, and others sued the City of Los Angeles for environmental justice and environmental quality violations under the Clean Water Act in 1999, resulting in a $2 billion settlement that improves the sewer system city wide. The parties settled the case in 2005. The parties including EPA reopened that settlement because it failed to adequately protect environmental justice communities, and entered into a new court-approved settlement in 2009. This is a best practice example for EPA to work with people of color and low income communities to achieve environmental justice.
Plaintiffs hope EPA will agree to work with them and CDPR to protect the health of Latino and other schoolchildren throughout California, with or without a court order.
*Brent Newell is the Legal Director at the Center on Race, Poverty & the Environment. "I do this work because all people deserve to live, work, play, and attend school in a healthy community. As a father of two boys, I am especially motivated to 'take EPA to school' because every child deserves a clean and safe educational environment."
**Madeline Stano is the Luke Cole Memorial Fellow and Staff Attorney at the Center on Race, Poverty & the Environment. She works at the intersection of civil rights and the environment to guarantee clean air and water are rights enjoyed by all. "Growing up in the Detroit area allowed me to see how vast and tragic environmental inequalities exist along race and class lines. I want to change that because I believe a safe home and a safe community are basic elements of human dignity.
Click on the text to download the following documents:
- The administrative complaint Maria Garcia and others filed in 1999 in Angelita C. v. California Department of Pesticide Regulation, EPA File No. 16R-99-R9
- The letter from EPA to CDPR finding a preliminary violation of discrimination under Title VI dated April 22, 2011
- The secret settlement agreement between EPA and CDPR dated August 24, 2011
- The complaint against EPA filed by Maria Garcia, David Garcia, and Angela Guzman on August 23, 2013
Top: Rio Mesa High School in Oxnard. Google Maps.