Biden Environmental Justice Goals Face Headwinds in Courtrooms

As the Biden administration makes strides toward more robust environmental justice guidance, courtroom battles over air toxics and civil rights are tightening the bounds of legal recourse for communities overburdened with air pollution.

President Joe Biden’s executive goals have culminated in an environmental justice screening tool, a legal toolkit, and strategic plan all focused on pursuing equity within environmental decision-making and enforcement. As of February, the administration also issued updates to a whole-of-government Equity Action Plan, re-upping commitments to reduce cumulative impacts and health disparities, and civil rights violations.

But recent courtroom decisions out of Louisiana’s heavily polluted corridor known as “Cancer Alley” have put legal checks on civil rights and environmental justice that some say could have far-reaching consequences and inspire similar cases down the line.

The Louisiana First Circuit Court of Appeal in January overturned a revocation of air permits for a Formosa Plastics Group manufacturing plant, ruling that the state environmental department completed an adequate enough environmental justice analysis when it issued the permits in the first place.

In a separate civil rights-related case, the US District Court for the Western District of Louisiana temporarily halted the ability of the Environmental Protection Agency and Department of Justice to look at disparate impacts in Louisiana Title VI cases.

The pair of decisions is a “stark example of how states like Louisiana failed Black residents, and how even courts fail those residents,” according to Earthjustice attorney Deena Tumeh. “Now Louisiana is going to continue to subject these communities to toxic air pollution with the support of a court order.”

Evaluating Environmental Justice

Brought by environmental organizations and citizen groups, Rise St. James v. Louisiana Department of Environmental Quality targeted the Louisiana Department of Environmental Quality (LEDQ) for its decision to grant air permits to a Formosa plastics facility in Cancer Alley.

The groups claimed the department violated the Clean Air Act and the state’s Public Trust Doctrine in granting the permits without sufficient concern for their environmental justice implications.

The court disagreed.

“DEQ thoroughly considered all of the information presented to it on the issue of environmental justice and concluded that the communities closest to the proposed Formosa complex would not bear a disproportionate share of the negative environmental consequences,” according to the Jan. 19 opinion.

“Thus, we cannot say that DEQ’s decision to issue the permits was in violation of its public trust duty or that its analysis of environmental justice was arbitrary and capricious,” Louisiana appellate judges said.

That decision makes Rise St. James one of the few cases on record to flesh out what environmental justice means in the air permit context, according to Doug Henderson, partner at King & Spalding LLP’s Atlanta office

“There’s not that many cases that really kind of interpret what environmental justice means,” Henderson said.

‘Sentinel Case’

Environmental justice is not a new concept for courts, particularly when looking at other forms of permitting such as the National Environmental Policy Act. But Henderson said Rise St. James and other state-level battles are more untested.

“You can look at this as a sentinel case, and I do believe it is because it is one of the more detailed analyses by courts of both EJscreen and the emission of hazardous air pollutants in the same case,” Henderson said.

Environmental justice litigation is most commonly seen in the civil rights context, as Title VI is more well-trod legal ground for litigants looking to file complaints of environmental racism.

And Biden’s EPA has made this type of enforcement action a priority in its external civil rights office, which continues to tick away at a backlog of Title VI complaints. The Justice Department also created its first-ever Office of Environmental Justice in 2022.

The DOJ declined to comment for this story.

But the February Title VI decision bars the EPA from adopting a more expansive view of what is considered a civil rights violation—namely, identifying ‘disparate impacts’ in enforcement probes. That takes more legal avenues out of play.

“Louisiana turned the anti-discrimination law inside out and upside down, and the court bought it,” said Tumeh, of Earthjustice.

Civil Rights Rollback

The EPA was in the middle of investigating civil rights complaints in Cancer Alley against LEDQ, but dropped the probe in June 2023 after the Title VI case was filed, insisting that no intentional discrimination had been found.

The complaint proceeded even after the investigation was officially closed, resulting in an injunction that environmental legal advocates are afraid will have far-reaching consequences for civil rights enforcement priorities.

“Courts are hostile to civil rights right now,” Tumeh said. The Title VI decision “sets a bad precedent for other states that want to challenge implementation of disparate impact regulations by any federal agency, not just EPA.”

Chandra Taylor-Sawyer, senior attorney in the Southern Environmental Law Center’s Chapel Hill office, believes that looking into the future where avenues like Title VI or EJ tools have lost their teeth is a glimpse at “a travesty.”

“But that is not where we are,” Taylor-Sawyer insisted. “We’re in a position to continue to protect the environment and public health by noting where we see environmental injustice is, and vigorously pursuing enforcement of environmental laws and civil rights laws.”