A federal judge in Lake Charles has at least temporarily blocked the Environmental Protection Agency from enforcing so-called "disparate impact" rules in Louisiana that require industries to reduce toxic pollutants in minority and low-income areas, such as the so-called "Cancer Alley" region along the Mississippi River, to lower levels than in majority white areas.
U.S. District Judge James Cain issued a preliminary injunction and partial summary judgement orders on Tuesday in a lawsuit filed in May by Gov. Jeff Landry when he was attorney general. The lawsuit took aim at actions taken by the EPA, including civil rights investigations it had launched into the state Department of Environmental Quality and Department of Health over their roles in issuing permits for petrochemical plants near Black communities in St. John the Baptist and St. James parishes.
It's unclear when final rulings will be issued. Both the EPA and the U.S. Justice Department declined to comment.
EPA Administrator Michael Regan has spoken of making environmental justice concerns a cornerstone of his tenure, including the use of disparate impact rules to target emissions in communities of color and low-income areas. He has visited Louisiana's Mississippi River chemical corridor twice since 2021.
But in June, after the state lawsuit was filed, the EPA abruptly announced that it was ending the two civil rights investigations, saying that its own regulatory actions involving chemical plants in the state were already achieving desired results, despite an inability to reach an agreement with DEQ over the probe.
In the lawsuit, Landry asked Cain to declare that the EPA's attempts to enforce the disparate impact rules were both unconstitutional because of their use of race to direct regulatory actions and in violation of the federal Clean Air Act.
It said EPA disparate impact provisions “results in a transformation of the agency’s Clean Air Act authority, converting the statute from one regulating specific pollutants and environmental impacts into a tool for far-reaching social engineering in the name of 'equity.'"
In an opinion accompanying his rulings, Cain found that EPA's disparate impact rules went farther than authorized by Congress under the Clean Air Act and Title VI of the Civil Rights Act, and that EPA was imposing an improper financial burden on the state to respond to them.
"The public interest here is that governmental agencies abide by its laws, and treat all of its citizens equally, without considering race. To be sure, if a decision maker has to consider race, to decide, it has indeed participated in racism. Pollution does not discriminate," Cain said in his opinion.
“It is abundantly clear that defendants’ actions iterated herein have created great cause for concern, not only for the State of Louisiana, but also for our sister states who have also found themselves at the whim of the EPA and its overreaching mandates."
Louisiana Attorney General Liz Murrill, who was lead counsel for the state in the case, alleged "the EPA could not explain any legal basis for its attempts to force Louisiana to violate the federal constitution.”
“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," she said.
The preliminary injunction prohibits the federal government from imposing or enforcing disparate impact-based requirements under Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. The state's environmental regulatory programs are partially funded by the federal government.
It also prohibits the federal government from imposing or enforcing any other Title VI-based requirements on the state or state agencies, unless they are both ratified by the president and based on specific requirements included in the EPA's existing disparate impact regulations.
It's unclear whether those requirements will affect the regulations that the EPA said it put in place that made the civil rights investigation unnecessary. In June, it cited court actions it took against Denka Performance Elastomers in Reserve, and new regulations proposed to significantly reduce emissions of chloroprene at Denka and ethylene oxide at Formosa Plastics' proposed Sunshine Project in St. James. At the time, the EPA said emissions would be reduced from both plants by 96% in nearby Black neighborhoods.
The state lawsuit also charged that EPA Administrator Michael Regan had allowed his agency's actions to be directed by activist groups, including the Sierra Club, Concerned Citizens of St. John, Louisiana Bucket Brigade, Stop the Wallace Grain Terminal, Inclusive Louisiana and Rise St. James, all of which have focused their efforts on reducing emissions from plants along the chemical corridor along the Mississippi River between Baton Rouge and New Orleans.
Cain found that while the argument that non-governmental organizations were improperly directing EPA actions was moot in the case of the two civil rights complaints that EPA dismissed, EPA's potential use of similar practices in the future would be improper.
Earthjustice, a national legal services organization that represented several chemical corridor community organizations in filing Title VI complaints against the state with EPA, criticized the judge's ruling.
“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,” said Sam Sankar, Earthjustice senior vice president of Program.
This story was updated on Wednesday, Jan. 24, 2024, with information from Judge Cain's decision and comments from Louisiana Attorney General Liz Murrill and Earthjustice attorney Sam Sankar.