Earlier this week, in a culmination of a decade-long fight, James Cain, a federal judge in Louisiana who was appointed by president Trump, decided to block the Environmental Protection Agency and the Department of Justice from pursuing enforcement actions based on “disparate impacts” — or the idea that a regulation might disproportionately harm one group of people over another.
A provision of the landmark Civil Rights Act of 1964 known as Title VI allows federal agencies to take action against state policies and programs that discriminate on the basis of race, color, or national origin. Since the EPA’s founding in 1970, however, the agency allowed most of the Title VI complaints that it received to languish without resolution. In 2015, a coalition of community groups in Louisiana, with the assistance of the public-interest environmental law organization Earthjustice, sued the agency for this practice and won. Five years later, after president Biden took office, federal regulators finally began addressing the civil rights complaints they received and the EPA announced a civil-rights probe into Cancer Alley — a stretch of land on the lower Mississippi River between Baton Rouge and New Orleans where over 150 chemical plants pump cancer-causing chemicals into the air of predominantly Black communities — marking a new phase of the agency’s use of Title VI.
Documents obtained by Grist last year indicated that the federal government was making significant progress with Louisiana officials in their Title VI negotiations. Cancer Alley residents’ principle demand — that state regulators assess whether a community is already exposed to disproportionately high levels of pollution before permitting a new project there — had made it into a draft resolution document. But at a certain point in the process, sources told Grist, the talks broke down.
Then in May 2023, Jeff Landry, then the attorney general (and now the governor) of Louisiana, filed a lawsuit against the EPA. On the basis that the agency was overstepping its authority, Landry’s suit challenged not only the EPA’s use of Title VI to regulate pollution in Louisiana, but also the very legal justification of disparate-impacts regulation, which reaches thousands of programs across the country and iscan be used to adjudicate decisions as varied as where a new highway can go or whether a housing practice is discriminatory. Advocates worried that the lawsuit had the potential to unravel decades of civil rights law. This week’s decision puts those concerns to rest, for now.
Judge Cain’s final judgment concurs with Landry’s argument. In effect, the ruling will make it impossible for the EPA to pursue enforcement actions based on disparate impacts — but only in Louisiana. Cain’s judgment comes in the same week as the EPA’s new Title VI guidance, which urges state and local regulators to establish safeguards that protect their constituents against discrimination.
Louisiana’s lawsuit was just one instance in a spate of right-wing attacks against the EPA’s use of civil rights law to regulate pollution in neighborhoods of color. In April, Republican attorneys general from 23 states filed a petition with the Biden administration’s EPA asking the agency to stop using Title VI of the Civil Rights Act to regulate pollution. The effort was led by Florida’s Ashley Moody, and compared the EPA’s efforts at tacking environmental justice through civil rights law to “racial engineering.” The EPA has not yet responded to the petition.
Debbie Chizewer, an attorney at Earthjustice, told Grist that the EPA and the Department of Justice could choose to appeal the case. In his ruling, Cain argued that disparate-impact regulations “are illegal anywhere in the United States.” Whether they appeal or not, Judge Cain’s decision is not binding on any other district courts. However, Chizewer cautioned, “if another state filed a case using the same theories, they will point to this case as persuasive authority for another court to consider.” It will be up to other courts whether they are persuaded by Cain’s analysis, she said.
In Louisiana, the decision means that communities have one less tool at their disposal to fight a slate of new oil and gas facilities soon to break ground.
“Louisiana has given industrial polluters open license to poison Black and brown communities for generations, only to now have one court give it a permanent free pass to abandon its responsibilities,” said Earthjustice Vice President for Healthy Communities Patrice Simms in a statement. “Louisiana’s residents, its environmental justice communities, deserve the same Title VI protections as the rest of the nation.”
Editor’s note: Earthjustice is an advertiser with Grist. Advertisers have no role in Grist’s editorial decisions.
This story was originally published by Grist with the headline Federal judge rolls back key civil rights protections in Louisiana’s ‘sacrifice zones’ on Aug 23, 2024.
