Legal Challenges Threaten United States Environmental Protection Agency (U.S. EPA) Environmental Justice Agenda

The U.S. EPA has been facing increasing pushback in the courts, threatening to derail their environmental justice (EJ) wins, and putting the administration’s ability to enforce its EJ agenda at risk.

First, on January 19^th, the Louisiana Court of Appeal First Circuit reversed a September 2022 decision of the 19^th Judicial District Court Parish of East Baton Rouge and reinstated 15 Louisiana Department of Environmental Quality (LDEQ) air permits for Formosa Plastics that had been blocked by that court, opening the door for the construction of the controversial petrochemical complex to be built in St. James Parish. The ruling found that “LDEQ’s decision to grant Formosa the 15 permits was not in violation of any constitutional or statutory law, was not arbitrary or capricious, or characterized by abuse of discretion or unwarranted exercise of discretion. In granting the permits, DEQ complied with the Clean Air Act.”

The decision in this matter, which is also related to the Title VI investigations that have been ongoing in the state until recently, immediately drew backlash from environmentalists, including Earthjustice and RISE St. James, organizations that raised the initial challenges to the issuance of the permits for Formosa. According to Earthjustice, the permits “add an extraordinary burden to the predominantly Black communities in the area who already suffer from exposure to some of the worst toxic air from industrial sources in the nation — exacerbating environmental racism in this region known as ‘Cancer Alley.’”

Should this decision hold, it is another major blow to U.S. EPA’s EJ agenda, as the decision to block those permits had been hailed as a major win for EJ advocacy across the United States.

In even bigger news, in a major ruling on January 23^rd, Judge James Cain of the U.S. District Court for the Western District of Louisiana ruled in favor of the state of Louisiana in the ongoing court case between Louisiana and U.S. EPA regarding U.S. EPA’s authority to use Title VI of the Civil Rights Act to enforce its EJ agenda. This ruling blocks U.S. EPA and the Department of Justice (DOJ) from using Title VI of the Civil Rights Act, which bars states and other government agencies from actions that cause “disparate impacts,” to advance EJ, at least temporarily.

Judge Cain had been deliberating on whether to let the lawsuit continue given U.S. EPA’s withdrawal from two Title VI investigations it had launched against the state after it had filed a lawsuit claiming the agency was overstepping its authority. U.S EPA’s position is that the case is now moot and should be dropped since the investigations are over, while the state wants to continue the case, arguing that the state “suffered injury from the civil rights policies regardless of any active enforcement” and called EPA’s withdrawals “gamesmanship” designed to avoid an adverse court ruling.

Ultimately the judge’s ruling went further than just allowing the case to continue but also agreed with the state’s request for the injunction “against the U.S. EPA and DOJ to enjoin these federal governmental agencies from imposing or enforcing any disparate impact-based requirements against the State or any State agency under Title VI.”

As part of Cain’s ruling to allow the case to continue, he seems to suggest that he already supports most of the state’s arguments, including its claim that U.S. EPA and DOJ’s investigations violate the major questions doctrine because they impose “disparate impact” mandates when Congress did not explicitly provide them. “The Court agrees with the State that the major questions doctrine is applicable here as to the imposition of disparate impact mandates under Title VI and as such, demands clear congressional authorization,” he wrote. “Defendants have constructed Title VI to allow it to regulate beyond the Statute’s plain text and by doing so, invade the purview of the State’s domain.”

Judge Cain’s ruling immediately drew fire from environmentalists, who have repeatedly petitioned U.S. EPA to undertake Title VI investigations against the permitting programs and other elements of several state agencies. Sam Sankar, Earthjustice senior vice president of programs, said in a statement: “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,” and “The public health crisis in St. John the Baptist Parish shows us why we need Title VI: EPA needs to be able to use our civil rights laws to stop states from running permitting programs that perpetuate environmental injustice.”

Regardless of Judge Cain’s decision, the case is expected to be appealed and may go all the way to the Supreme Court. Meanwhile, the decision seems likely to embolden other states to oppose U.S. EPA, which should make it increasingly difficult for U.S. EPA to advance EJ via Title VI in those states not actively pursuing an EJ agenda on their own.

What Do these Challenges Mean?

These are just the latest setbacks U.S. EPA has faced in enforcing their EJ agenda. It remains to be seen if U.S. EPA will accept these decisions, especially the Title VI case, or appeal and risk a more permanent negative decision. With the head EJ position in U.S. EPA still vacant since the departure of former deputy assistant administrator of the U.S. EPA Office of Environmental Justice & External Civil Rights Matt Tejada, and the presidential election coming up in November, the future of the U.S. EPA agenda around enforcing EJ is a bit cloudy. However, the funneling of money by U.S. EPA into EJ projects, the ramping up of EJ Technical Assistance Centers to aid organizations in navigating the grant process, and the funding of community-level monitoring programs continues.

Regardless of events at the federal level, many states are continuing full speed ahead in developing their EJ rules and policies, with no reason to believe that will change. New Jersey, Illinois, Colorado, California, Pennsylvania, Massachusetts, Texas, and several other states are now adding additional requirements, primarily in the form of additional analysis and public outreach requirements, to their permitting process, whether it is formally part of their permitting rules or not.

If you have concerns about the potential implications of these developments or need help parsing through them, feel free to contact your ALL4 Project Manager or Rich Hamel. ALL4 will continue to monitor EJ guidance from the administration and states and the tools available to evaluate EJ concerns as they develop. We can also help you evaluate permitting risks, from EJ concerns to regulatory issues, and assist in developing a strategy to make the permitting of your project as efficient as possible, including how to communicate project information to the public and what you might include in a cumulative impacts analysis.