Beyond the Fenceline: Environmental Justice Updates – July 2023

The last few years have seen a significantly increased focus on environmental justice, from the federal government to certain state attorneys general to community organizations. Perhaps no state has seen more EJ-activity than Louisiana, particularly in the last several months. Below we discuss recent developments in Louisiana, which highlight trends in environmental justice that readers are likely to see throughout the country in the coming years.

Local Government Fights Back Against Environmental Justice Suit

On March 21, 2023, activists in St. James Parish brought claims in the Eastern District Court of Louisiana against the Parish under 28 U.S.C. Sections 1982 and 1983, the Thirteenth and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Louisiana Constitution relating to the Parish’s land use policies. The Parish responded to those claims on June 16, seeking to strike what it terms “scandalous” allegations and dismiss Plaintiffs’ claims with prejudice. The Parish first argues that the vast majority of Plaintiffs’ Complaint, which recounts the history of slavery and alleges the plight of Black residents of the Parish, improperly casts a derogatory light on the Parish by seeking to impute a discriminatory motive where none exists. The Parish then seeks to dismiss Plaintiffs’ Complaint on various grounds, including lack of standing (given the lack of injury, traceability, and redressability), prescription (based on the time that has passed since the 2014 Land Use Plan at issue), and failure to state a claim under any pleaded theory. In sum, the Parish argues, Plaintiffs are attempting to shift control over land use decisions from elected state officials to an unelected federal court, an improper invitation that the court should reject.    

This case is one to watch because environmental justice is at the forefront of the litigation vs. just one aspect of it, and thus the outcome of the Parish’s motion to dismiss could have far-ranging impacts on environmental justice litigation. Should Plaintiffs’ suit survive the motion to dismiss stage, environmental justice activists in other locales—particularly those where elected officials and state regulatory agencies are not perceived as adequately addressing environmental justice issues—will be emboldened to seek redress through the courts. 

Louisiana Sues the EPA over Environmental Justice Requirements

On May 24, 2023, the state of Louisiana sued the EPA in Western District Court, alleging that EPA is attempting to force the Louisiana Department of Environmental Quality (“LDEQ”) and 

Louisiana Department of Health (“LDH”) into adopting environmental justice policies that lack a basis in statute or regulation. Louisiana argues that EPA’s attempt to impose a disparate impact analysis requirement on the State’s environmental permitting decisions exceeds EPA’s authority under Title VI of the Civil Rights Act, which provides that no program or activity that receives federal funding can discriminate against a person on the ground of race, color or national origin. Louisiana also argues that the EPA’s policy misconstrues Title VI’s prohibition on intentional discrimination and, in practice, compels Louisiana to engage in the very intentional discrimination that the Civil Rights Act prohibits.  And the State argues that EPA’s requirement to evaluate a projects’ potential cumulative impacts on environmental justice communities has no basis in EPA’s Title VI regulations.

Interestingly, Louisiana also alleged that EPA’s coordination with citizen and environmental groups violates the private non-delegation doctrine. EPA’s Title VI regulations allow a person to file a complaint with EPA within 180 days after that person faces alleged discrimination. In this case, three citizen and environmental organizations filed discrimination complaints against the State relating to permitting of the Denka and Formosa facilities, which the State alleges were filed long after the 180 day deadline. EPA nevertheless accepted the complaints and began an investigation. In its lawsuit, the State alleged that these organizations improperly influenced the negotiations on these complaints between EPA and the State. On June 21, 2023, Louisiana filed a Motion for Preliminary Injunction and Motion to Expedite the resolution of its request for injunction, citing an impending July 11, 2023 deadline to resolve the citizen group complaints via negotiation.  

Less than a week later on June 27, EPA filed a notice that it closed its investigations into the complaints against LDEQ and LDH without any finding of discrimination or other Title VI violation. EPA also announced that it will not initiate any further action in response to the complaints.  As these complaints formed the basis of the State’s lawsuit and justification for its Motion for Preliminary Injunction, EPA suggested the State dismiss its lawsuit. Of note, EPA also said in its closure letters to the State that it intends to convene a community work group and undertake a cumulative impact assessment in the community near the Denka facility. EPA stated that the assessment was not being conducted under Title VI and would not impose any obligations on State agencies, and invited LDEQ and LDH to participate. It remains to be seen whether this leads other states to challenge the Biden Administration’s attempts to pursue environmental justice via Title VI of the Civil Rights Act.

Clean Air Act Section 303 and Environmental Justice Lawsuits

Clean Air Act Section 303 allows EPA to use “emergency powers” when environmental threats pose an “imminent and substantial endangerment” to public or environmental welfare. Under Section 303, EPA can find that endangerment exists without violation of any laws or regulations, and then issue a 60-day order to stop the polluting activity or file suit in federal district court. EPA has exercised authority through Section 303 only fourteen times in the last five decades, but has already used it four times since 2021. 

The recent lawsuit concerning Denka Performance Elastomer, LLC facility in St. John the Baptist Parish exemplifies this trend. In its action filed February 28, 2023, EPA alleged that Denka’s neoprene manufacturing facility presents a heightened risk of cancer to the communities surrounding the facility. Therefore, EPA sought injunctive relief “requiring that Denka immediately reduce its chloroprene emissions to levels that no longer cause or contribute to unacceptably high cancer risks” for the surrounding communities. In citing Section 303, the government asserted that the increased cancer risks create an “endangerment to public health and welfare” that is “imminent” because the conditions currently exist and “substantial” given the number of children in the surrounding communities and the heightened cancer risks involved.

The action against Denka remains pending, but other companies have settled or agreed to increase compliance spending after being hit with Section 303 actions. These successes make it likely EPA will continue to use Section 303 going forward.