Earlier this week, in a culmination of a decade-long battle, James Cain, a federal judge in Louisiana appointed by President Trump, ruled to block the Environmental Protection Agency and the Department of Justice from pursuing enforcement actions based on “ different impacts ” — or the idea that a regulation may 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. However, since the establishment of the EPA in 1970, the agency has allowed most of the Title VI complaints it has received to languish without resolution. In 2015, a coalition of Louisiana community groups, with the help of the public interest environmental law organization Earthjustice, sued the agency for this exercise and won. Five years later, after President Biden took office, federal regulators finally began to address the civil rights complaints they had received and the EPA announced a civil rights investigation into Cancer Alley — a stretch of land on the lower Mississippi River between Baton Rouge and New Orleans where more than 150 chemical plants pump cancer-causing chemicals into the air of predominantly black communities — marking a new phase in the agency’s use of Title VI.
Documents obtained by Grist last year indicated that the federal government has made significant progress with Louisiana officials in their Title VI negotiations. Cancer Alley residents’ principle demand — that state regulators must determine whether a community is already exposed to excessively high levels of pollution before allowing a new project there — made it into a draft resolution document. But at some point in the process, sources told Grist, the talks broke down.
In May 2023, Jeff Landry, then the attorney general (and now governor) of Louisiana, filed a lawsuit against the EPA. On the grounds that the agency exceeded its authority, Landry’s case 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 has thousands of programs across the country reach is used to judge decisions as diverse as where a new highway can go and 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 ruling echoes Landry’s argument. In effect, the ruling would 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 guidanceurging state and local regulators to put in place safeguards that protect their constituents from discrimination.
Louisiana’s lawsuit was just one case in a wave 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 of 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 likened the EPA’s efforts to tackle environmental justice through civil rights legislation to “racial engineering.” The EPA has not yet responded to the petition.
Debbie Chizewer, an attorney with Earthjustice, told Grist that the EPA and the DOJ may choose to appeal the case. In his ruling, Cain argued that disparate impact regulations are “unlawful anywhere in the United States.” Whether they do or not, Judge Cain’s decision is not binding on any other district courts. However, Chizewer cautioned, “if another state brought a case using the same theories, they would point to this case as persuasive authority for another court to consider.” It will be up to other courts whether they are convinced by Cain’s analysis, she said.
In Louisiana, the decision means communities have one less tool at their disposal to fight back new oil and gas facilities to break ground soon.
“Louisiana has given industrial polluters an 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 play no role in Grist’s editorial decisions.
