Environmental Protection Agency Administrator Michael Regan talks about air pollution enforcement in Louisiana during a press conference in LaPlace on Thursday, April 6, 2023. On Thursday, August 22, federal Judge James Cain Jr. banned EPA from using "disparate impact" to implement more strict emissions rules in minority and low income communities in Louisiana than rules in other areas.
(Photo by Brett Duke, | The Times-Picayune) The cannot force Louisiana industries to reduce toxic pollutants in minority and low-income areas to lower levels than in majority White areas to make up for past pollution, a federal judge in Lake Charles has ruled. The rules are part of EPA’s efforts to apply portions of the federal Civil Rights Act to pollution since the law prohibits discrimination on the basis of race, color and national origin. In Louisiana, the rules were aimed at addressing long-standing allegations that state agencies meant to enforce EPA regulations were not adequately addressing pollution problems in low-income and minority communities.
Thursday's ruling by Judge of the Western District of Louisiana was in response to a challenge of EPA’s enforcement of the rules in May 2023 by when he was state attorney general. The ruling made permanent an earlier by Cain, who was appointed to the bench by President Donald Trump. Louisiana successfully argued the rules were unconstitutional because of their use of race to direct regulatory actions, and in violation of the federal Clean Air Act.
The state argued that EPA used the air pollution rules as “a tool for far-reaching social engineering in the name of ‘equity.’” Cain’s ruling followed months-long negotiations between the state and EPA over the terms of his earlier temporary injunction that included similar prohibitions. Cain adopted most of the state’s requests at limiting EPA’s enforcement of its rules implementing Title VI civil rights provisions, and rejected all of EPA’s attempts to broaden its enforcement authority in the state.
Also on Thursday, EPA published an updated version of its nationwide civil rights guidance for itself, state agencies and other organizations receiving EPA funds that include guidance on how to enforce the disparate impact rules. However, the guidance includes a footnote citing Cain’s earlier temporary restraining order that says EPA “will not impose or enforce any disparate-impact or cumulative-impact analysis requirements under Title VI against the state of Louisiana or its state agencies.” It will enforce other provisions of the Civil Rights Act in the state, however.
“The Justice Department and EPA remain committed to enforcing civil rights law, consistent with the court’s order,” the two federal agencies said in a joint statement. “In the coming weeks, we will determine next steps to ensure nondiscrimination in the programs and activities our agencies fund.” Landry’s office, the state attorney general’s office and the state Department of Environmental Quality did not respond to a request for comment on the ruling.
The ruling was criticized by Earthjustice, which represents environmental groups and local communities that have gone to court to attempt to reduce air emissions in Louisiana, including in the chemical corridor along the Mississippi River that activists label ." In January 2022, Earthjustice filed a complaint with EPA on behalf of St. John the Baptist Parish residents asking the agency to investigate whether Louisiana agencies had violated Title VI of the Civil Rights Act by failing to protect Black communities from disproportionate environmental harm.
That led the agency to begin civil rights investigations of DEQ and the state's Health Department that were dropped after the state lawsuit was filed. The EPA later followed up with new rules meant to reduce cancer risks for communities near industrial plants nationwide, with many of them in Louisiana. Deena Tumeh, a senior attorney with Earthjustice, said Cain's new ruling “is still based on an incorrect interpretation of our civil rights laws, and this decision creates a legally sanctioned sacrifice zone in Louisiana.
” “This flies in the face of the history of how the petrochemical industry in Louisiana was developed and expanded, in terms of discrimination against Blacks and other people of color and the areas they live in,” she said. EPA Administrator Michael Regan has repeatedly cited the pollution issues faced by Louisiana’s majority-Black communities in speeches in which he promised to make environmental justice a cornerstone of his tenure. He has visited Louisiana’s Mississippi River chemical corridor twice since being appointed in 2021.
The agency's new rules on cancer risks reduce emissions of several chemicals nationwide that directly affect chemical plants along the river and elsewhere in Louisiana, without including disparate impact language. EPA officials said such actions were achieving desired results in the state's minority and low-income communities, despite their inability to reach an agreement on the civil rights investigations with DEQ. Cain’s new ruling does not affect EPA actions in minority areas in other states, but he did expand it to include local agencies and private organizations in Louisiana that receive federal grants, and for which the disparate impact rules may have applied.
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