Legal Crusade Over Cancer Alley Imperils Environmental Justice

“Pollution does not discriminate.”

At least according to Judge James D. Cain Jr. of the US District Court for the Western District of Louisiana, when he obliterated the use of a civil rights theory known as ‘disparate impacts’ in the state. (Communities of color and low-income neighborhoods who live in heavy-industry sacrifice zones would likely beg to differ.)

Cain’s injunction order, stemming from a novel reverse-racism case brought by then-Attorney General and now-Gov. Jeff Landry, only applies within Louisiana. He stopped short of handing Landry his ultimate goal: eliminating the use of disparate impacts nationwide.

Still, the slippery slope has been greased.

Even if the court denies to amend its judgment and freeze disparate impacts nationally, as Louisiana is currently seeking, the case threatens the potency of civil rights considerations across agencies—not just the Environmental Protection Agency.

In the near term, the case has already rocked the Biden administration’s environmental justice goals, chipping its enforcement teeth in some of the most environmentally degraded areas of the country.

Situated under Title VI, ‘disparate impacts’ regulations allow agencies to consider indirect factors of discrimination when issuing federal funding—like whether a new chemical plant permit would have the effect of discrimination if it’s placed in a predominately Latino neighborhood that’s been historically zoned for heavy industry, such as Chicago’s South Side, for example.

But Title VI doesn’t “plainly” mention disparate impacts, which Cain points to as proof that pollution from decades of zoning in marginalized neighborhoods isn’t discriminatory. In fact, he said it’s the opposite: “If a decision maker has to consider race, to decide, it has indeed participated in racism,” he wrote.

The Supreme Court has upheld disparate impact arguments before. In 2015, justices ruled that Texas discriminated by disparate impact when it disproportionately granted housing tax credits to communities of color, which advocates argued created outsize concentrations of low-income housing in Black and brown neighborhoods.

Beyond pointing to regulatory overreach, Louisiana successfully convinced its district court that EPA itself is being racist by dividing “racial groups into favored and disfavored groups.” It also claimed EPA was taking power away from sovereign states to special interests (meaning, advocates).

States have already signaled their willingness to use Louisiana’s legal theory. Florida Attorney General Ashley Moody and a crew of other Republican top attorneys urged the EPA in April to amend its disparate impacts regulations.

Challengers are leaning heavily on a 2001 Supreme Court brawl over drivers license exams, Alexander v. Sandoval, which shut the courtroom door permanently to private individuals looking to sue using disparate impacts. That doesn’t preclude federal plaintiffs, though.

Before Louisiana’s current legal crusade on civil rights regulations, residents of Cancer Alley—a heavily polluted industrial corridor along the Mississippi River—saw a glimmer of hope in 2022. That’s when EPA announced that it would be conducting a probe into how Louisiana state officials permitted the area, where predominately Black residents suffer from cancer rates close to 50% higher than the rest of the US.

But the EPA did an about-face in 2023, closing the investigation and concluding that it didn’t find any discrimination—weeks after Louisiana filed its disparate impacts battle.

States and advocates can still get creative in filling in gaps where the federal government can’t.

There’s been a heavy push for hyper-local air monitoring efforts in fenceline areas, which were given fresh steam thanks to Inflation Reduction Act funds allocated for community monitoring. Residents, too, continue to wage legal wars: Inclusive Louisiana and other Cancer Alley advocacy groups are still pushing to hold St. James Parish liable for what they claim are years of racist land use policies.

But for now, Caine’s weighing Louisiana’s request to quash disparate impact regulations nationwide. The ambient air of millions of marginalized Americans continues to remain in the hands of the court.