Fifth Circuit Weighs Standing, Harm in ‘Cancer Alley’ Appeal

Environmental and health advocates in Louisiana met St. James Parish in oral arguments on Monday in what Judge Carl E. Stewart called a “hefty” case challenging a lower court decision to dismiss chunks of an environmental justice lawsuit.

The three-judge panel at the US Court of Appeals for the Fifth Circuit probed attorneys on issues of standing, and whether officials of St. James Parish, La., executed yearslong discriminatory land use policies in majority Black districts.

Advocates argue that St. James Parish’s industry-friendly zoning practices and a 2014 land use plan has inundated nearby communities with pollution from a corridor of petrochemical plants and manufacturing facilities known as “Cancer Alley.”

The arguments come amid crucial federal civil rights losses in other southeastern courts, notably a recent decision that bars the US government from using indirect discrimination impacts in civil rights cases in Louisiana.

Tulane Environmental Law Clinic student attorney Jack Dean insisted that advocates had adequately established standing with claims that St. James Parish, and not third parties, had directly harmed property and religious sites of unmarked graves.

“These are examples of the decades long policy, practice, and custom of treating plaintiffs as unequal and unworthy of the same protections of white residents,” argued Dean, representing RISE St. James.

Judge Catharina Haynes asked how the Parish could be responsible if they were just permitting to private parties, such as if a government issues a driver’s license and is then sued for a car accident. Dean said that example is more attenuated than the local government permitting specifically for heavy industry to build in a marginalized communities and not in majority white areas.

“Parish continues to intentionally steer heavy industry into these districts, it just disputes the steering warrants stigma,” Dean said.

Stopping the Traffic

Whether plaintiffs can cull from alleged past harms when the focal point of their arguments rests on a 2014 Parish land use plan was also a sticking point for the panel, in addition to what remedy would be sufficient if existing plants are not being asked to shut down.

Part of the remedy involves stakeholder engagement and air monitoring, said Pamela Spees—Center For Constitutional Rights attorney and counsel for Mount Triumph Baptist Church and Inclusive Louisiana. But “stopping oncoming traffic into the Parish, into the fourth and fifth district” of the Parish, is key, Spees told the panel.

Appellants still don’t meet the stringent requirements to bring the case since they have no property rights that support their allegations, according to Parish counsel Danielle L. Borel of Breazeale, Sachse & Wilson LLP.

Destruction caused by private companies after the Parish issues permits isn’t then the fault of the Parish, Borel said, adding that, even with all defendant arguments in hand and an amended complaint, advocate appellants can’t establish standing.

The timing of the allegations and the 2014 plan also defeat plaintiffs’ ability to “claw back” decades and use those alleged actions, according to Carroll Devillier Jr. of Breazeale, Sachse & Wilson LLP.

Haynes questioned both attorneys’ approaches, asking why the Parish can’t be held liable for directly green-lighting projects that would harm purported gravesites.

“What do you have within the last year? They have nothing,” Devillier said. “Because they don’t have a claim within the last year that asserts both an act and harm.”

Judge Patrick E. Higginbotham also sat on the panel.

The case is Inclusive La. v. St. James Parish, 5th Cir., No. 23-30908, 10/7/24.