Contributed by Trey Hess P.E., Brownfield Director, PPM Consultants
On January 23rd, Federal Judge James D. Cain, Jr. of the Western District of Louisiana issued a ruling in the case of Louisiana v. EPA, a notable environmental justice case. The State of Louisiana had filed suit against the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ). The ruling temporarily halted EPA and DOJ efforts to enforce regulations based on disparate impact under Title VI of the Civil Rights Act against Louisiana state agencies. This ruling has significant implications for the Biden administration’s environmental justice initiatives.
Environmental justice emerged from the civil rights movement of the 1960s, addressing the siting of industrial facilities in or near marginalized communities. President Clinton’s Executive Order No. 12898 directed federal agencies to address the disproportionate environmental and health effects on minority and low-income populations. Title VI of the Civil Rights Act was a legal tool to combat environmental injustice. However, proving intentional discrimination hindered its effectiveness. Additionally, the Supreme Court’s 2001 decision in Alexander v. Sandoval limited private enforcement of disparate impact regulations under Title VI.
The current administration seeks to refine the application of Title VI for environmental justice, central to Louisiana v. EPA. In May 2023, Louisiana sued EPA and DOJ in response to EPA’s investigation of Title VI complaints against the Louisiana Department of Environmental Quality (LDEQ) and Louisiana Department of Health (LDH). The complaints alleged civil rights violations regarding air permits issued to Denka Chemical and Formosa Plastics plants in Louisiana.
Louisiana argued that EPA and DOJ’s disparate impact regulations under Title VI exceed statutory authority and are illegal. These regulations, enforcing Title VI and prohibiting discrimination by recipients of federal funds, impose additional requirements on Louisiana agencies, which Louisiana deemed unlawful.
In June 2023, Louisiana sought a preliminary injunction to stop EPA and DOJ from enforcing disparate impact regulations and extra-regulatory requirements during the lawsuit. Subsequently, EPA resolved the Title VI complaints without finding discrimination by LDEQ and LDH.
Following oral arguments, on January 24, the court granted Louisiana’s preliminary injunction, allowing most of its claims to proceed. The court found EPA and DOJ’s disparate impact regulations likely unlawful as they lacked explicit authorization from the Civil Rights Act and invoked the major questions doctrine, requiring congressional authorization for significant regulatory issues. Additionally, the court deemed the requirements likely unconstitutional and unauthorized.
Though not a final decision, this ruling has significant implications. The Biden administration’s efforts to address environmental justice through Title VI face skepticism from the court. If upheld, EPA’s reliance on Title VI for environmental justice efforts may be compromised. The immediate impact prevents EPA and DOJ from enforcing Title VI regulations or imposing extra-regulatory requirements in Louisiana. Despite the setback, EPA and DOJ are evaluating potential risks of further legal action, including potential appeals to higher courts. With 2024 being an election year, having a corporate environmental strategy that addresses the continued push by the current administration’s “Comprehensive Environmental Justice Enforcement Strategy” or pivots towards a regulatory rollback, PPM is poised to assist you with simplifying this complex issue. Feel free to reach out to me at trey.hess@ppmco.com if you want to talk about environmental justice or other brownfield redevelopment matters.