At first glance, the construction along the Brooklyn streets appeared routine. “You wouldn’t think anything of it,” said Fabian Rogers, a community organizer in Brownsville, a majority Black neighborhood where construction began in 2017.

It wasn’t until years later, in 2020, that he learned that the overturned streets were making way for a fracked gas pipeline. “It just felt like a big slap in the face – to have [a pipeline] in my backyard that I didn’t know about,” he said.

Rogers and other residents have spent the last two years protesting National Grid’s 7-mile pipeline, which zigzags through predominantly Black and Latino neighborhoods, bypassing Whiter, wealthier parts of Brooklyn. Formally known as the Metropolitan Reliability Project, the pipeline is often referred to as the north Brooklyn pipeline. They have blocked the pipeline’s construction at demonstrations and some have stopped paying part of their utility bills, in an effort to divert funding from the project.

Last summer, they went a step further filing a complaint against the utility and state that argues the pipeline has resulted in racial discrimination, violating Title VI of the 1964 Civil Rights Act. (Title VI prohibits federally-funded entities from discriminating on the basis of race, gender, and other protected identities).

Historically, the Environmental Protection Agency (EPA) has been slow to act on these types of complaints, rarely finding evidence of discrimination. But under the Biden administration, the agency has committed to change this. How the EPA responds to this challenge – in which Black, Indigenous, and brown-led community groups say a fracked gas pipeline represents a violation of their civil rights – will be a test of the agency’s ability to execute on that promise.

Not long after the complaint was filed, two federal investigations were launched into New York state agencies. The lawyers behind the complaint hope that it will result in a full environmental review of the pipeline and connected facility for storing and refining the methane gas, which awaits an air permit. Ultimately, they hope that the gas in the pipeline – which began operating in 2020 – is permanently shut off.

“It would be a real mistake if the state doesn’t listen to the communities that it is designed to protect – that already have a history of dealing with environmental harm and pollution,” says Britney Wilson, a co-counsel to the complaint and an associate law professor and director of the Civil Rights and Disability Justice Clinic at New York Law School.

In October, the agency released a strategic plan draft that aims to revamp its civil rights enforcement program. The plan states the EPA will “vigorously enforce” federal civil rights law to “address the legacy of pollution in overburdened communities that results from discriminatory actions, whether direct or indirect, intentional, or unintentional”. This reflects a sharp departure from both the Obama and Trump administration’s strategic plans, which didn’t mention civil rights – let alone make it a central objective.

“This could possibly be a turning point with how the EPA approaches environmental racism,” said Anjana Malhotra, a senior attorney at the National Center for Law and Economic Justice and a co-counsel to the complaint. “It’s a landmark acknowledgement of how [the EPA] hasn’t addressed environmental injustice.”

In 2017, the agency reached the conclusion that the permitting process for a power plant in Flint, Michigan, was effectively discriminating against African American residents. But it took the EPA more than 20 years to reach that point; the complaint against the Genesee Power Station was first submitted in 1992.

The Center for Public Integrity found that the EPA rejected or dismissed over 90% of the civil rights abuse allegations, from 1996 to 2013, while only 5% of complaints were resolved with voluntary or informal agreements. To date, the agency has not once restricted federal funding for a civil rights violation.

But under the Biden administration, there have been signs that the EPA wants to put environmental justice at the forefront of its policies.

The pipeline cuts through the designated environmental justice areas of Brownsville, Ocean-Hill, Bushwick and East Williamsburg, neighborhoods long overburdened with toxic hazards from a history of racist policies. Large swaths of these neighborhoods were historically redlined, ineligible for federally backed loans. All neighborhoods have some of the highest rates of adult and child asthma in New York City, a legacy of its history of polluting industries and lack of public benefits. The pipeline has a terminal in Greenpoint, where one the largest oil spills in the country is still being remediated.

“National Grid treated Brownsville like a backyard, but there’s a whole community back here,” said Rogers. “Folks have been supporting each other. Folks have been making it happen.”

Responding to a request for comment, a National Grid spokesperson maintains that the utility company complied with all laws.
The EPA was established just over 50 years ago. In that time, the agency has only made one final finding of discrimination.

After community groups filed their complaint against the north Brooklyn pipeline, the EPA launched an investigation into New York’s department of environmental conservation, while the department of transportation began investigating New York’s public service commission. Those investigations are currently paused while the federal agencies meet with the state to seek an informal resolution.

In a recent development, Malhotra and Wilson were invited to meet with federal agencies in January. There, the co-counsels presented a letter reiterating why it is “unequivocally clear” the environmental conservation department violated the law and to push for greater inclusion of their clients in the informal resolution. Typically, the process doesn’t include the complainants, but the EPA and transportation department are developing a new model to better include the impacted communities, according to Malhotra and Wilson.

It’s an important development, given that Brooklyn residents claim they never had the opportunity to consent to the pipeline – a frequent complaint shared by environmental justice communities.

“[National Grid] never reached out to me, never reached out to my fellow neighbors, none of us,” said Rogers, a member of Brownsville Green Justice, one of the groups behind the complaint.

If no agreement can be reached, the investigations will resume – with a timeline of 180 days in total to potentially arrive at preliminary findings of discrimination.

A DPS spokesperson claims the agency’s decision to approve the pipeline was based on “a robust factual record”, while a environmental conservation department spokesperson similarly claims that the agency “subjects every application to rigorous review of all applicable federal and state standards”.

With regard to the EPA’s record on environmental justice, there are some promising changes. Marianne Engelman-Lado, a lawyer who has previously described the agency as “spectacularly unsuccessful at ensuring that recipients of EPA funding comply with the non-discrimination provisions of Title VI”, was appointed to the agency last year.

The EPA has also issued two letters with preliminary findings of civil rights violations in 2021, for separate complaints in California and Missouri. And in September, the agency responded to an audit from the office of inspector general with measures and deadlines for improving civil rights oversight – from more guidance for permitting decisions to initiating investigations even before a complaint is lodged.

These moves could mean good news for organizers like the ones challenging the north Brooklyn pipeline.

“Our neighborhoods in Brooklyn have always been dumping zones,” said Pati Rodriguez, a community organizer with Mi Casa Resiste, a Bushwick-based group resisting gentrification and displacement, and one of the complainants. “[But] these are our neighborhoods that we’ve stewarded.”