Louisiana Civil Rights Case Threatens EPA’s Enforcement Plans

The Environmental Protection Agency’s civil rights enforcement effort was dealt a blow when a Louisiana federal judge ruled that certain cumulative impacts were off-limits in consideration of Title VI cases.

Judge James D. Cain Jr. of the US District Court for the Western District of Louisiana ruled on Tuesday that the EPA and Justice Department can’t impose “any disparate-impact-based requirements against the State or any State agency” in civil rights cases under Title VI of the Civil Rights Act. Disparate impact refers to unintentional discrimination.

Environmentalists lambasted the ruling, which blocks the EPA from using metrics that advocates have long said are essential in measuring harm in areas with disproportionate pollution burdens, key to environmental justice (EJ) efforts.

“Judge Cain’s ruling and issuance of the Preliminary Injunction is a direct legal challenge to EPA’s ability to inject EJ broadly into the environmental permitting process,” King & Spalding partner Doug Henderson said in an email.

“The court’s decision to issue this injunction is bad enough, but what’s worse is that instead of fixing the discriminatory permitting programs that have created sacrifice zones like Cancer Alley, Louisiana is fighting tooth and nail to keep them in place,” Sam Sankar, Earthjustice’s senior vice president of programs, said in a statement.

Disappointing Outcome

The Louisiana Department of Environmental Quality (LDEQ) and the Louisiana Department of Health (LDH) had been previously under investigation by the EPA and DOJ over claims that their management of a heavily polluted area known as “Cancer Alley” placed disproportionate pollution burdens on Black residents.

In the face of the ensuing lawsuit from Louisiana, EPA dropped the probe, insisting that they didn’t find evidence of intentional discrimination—a claim brought by local advocacy groups including Inclusive Louisiana, RISE St. James, and the Louisiana Bucket Brigade.

Manann Donoghoe, a Brookings Institution senior research associate, said in an interview the dropped complaints brought a lot of hope for enforcement and change in Cancer Alley.

“Having the EPA finally take up the mantle and the obligation to investigate some of these disparities was such a potential win for those communities,” he said.

Intentional discrimination is the high bar that must be proven to prevail in the backlog of Title VI cases pending in the EPA’s civil rights branch. Allowing disparate impacts such as issuing permits for facilities with surrounding pollution centers in Title VI cases could have lowered that bar in certain cases.

Donoghoe was “disappointed” by the decision, and especially for “the people that now are going to face an even greater uphill battle, to getting recognition for the health impacts that they’ve been dealing with for decades.”

But Louisiana hailed the ruling. “When the EPA refused to explain its reasoning for threatening millions in federal funding in Louisiana and other states, we sued to require EPA explain itself to a federal judge,” Louisiana Attorney General Liz Murrill said in a statement following Tuesday’s ruling. “That judge agreed the EPA is wrong.”

Sidney Shapiro, an administrative law professor at Wake Forest University who focuses on human rights, said the decision could influence other courts and thereby hamstring the Biden administration’s efforts to use disparate impacts to enforce civil rights.

“When litigants go to argue, they look for similar cases in similar situations,” Shapiro said. “No doubt this will be cited by other litigants in defending themselves against civil rights charges.”

For that reason, John Knox, a former attorney-adviser at the US State Department, said environmental justice advocates on the ground should “think beyond litigation” to advance their goals.

“In a lot of ways the courts are really not very friendly right now,” said Knox, now a Wake Forest law professor who specializes in human rights. The current US Supreme Court, in particular, is likely to reject any arguments based on human rights, he said.

Strategy at Risk

The decision is a blow to the Biden administration’s enforcement goals, which include a significant step up of its scrutiny of environmental justice cases. The Justice Department opened a new Office of Environmental Justice in May 2022, which was paired with a comprehensive environmental justice enforcement strategy that prioritizes cases in overburdened and underserved communities.

The EPA declined to comment, referring instead to the Justice Department. DOJ declined to comment on the Louisiana decision.

The EPA recently said 55% of the cases it concluded in fiscal 2023 addressed facilities in communities with potential environmental justice concerns, the highest rate since 2014.

“We need to be doing everything we can to make sure that overburdened communities, which have borne far more than their share of the pollution problems in the United States, get relief,” David Uhlmann, head of the EPA’s enforcement group, recently said in an interview. “But until this administration, it was not made a priority, the way it has been by this president and by this EPA administrator.”

In an election year, the decision to stem disparate impacts in civil rights complaints could be an early advantage for enforcement rollbacks should a Republican take office.

In late 2020, as the Trump administration was winding down, DOJ readied a final rule that would have wiped out its disparate impact standard in discrimination cases. The rule never took effect before President Donald Trump left office, but Harvard University’s Environmental and Energy Law Program said it likely would have “meant a dead end” for the federal government’s ability to prosecute a wide range of civil rights cases.

Shapiro said he believes a future Trump administration will again try to strike down the disparate impacts doctrine, because conservative groups have repeatedly shown a strong preference toward race neutrality in public policy.

The case is Louisiana v. EPA, W.D. La., No 2:23-cv-00692, Decision 1/23/24.