At the end of January, a federal judge issued a ruling in a high-profile environmental justice case, Louisiana v. EPA, brought by Louisiana against the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ). The ruling temporarily blocks EPA and DOJ attempts to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act against Louisiana state agencies. Beyond that, the decision has potentially significant ramifications for the Biden administration’s ongoing environmental justice initiatives.
The concept of environmental justice originated as an outgrowth of the civil rights movement of the 1960s when waste and industrial facilities were frequently located in or near low-income and minority communities. In response, President Clinton signed the landmark Executive Order No. 12898 and instructed federal agencies to identify and address the disproportionately high and adverse human health and environmental effects of their actions on minority and low-income populations. Among the legal tools federal agencies could employ to combat environmental injustice was Title VI of the Civil Rights Act. However, in practice it has been difficult to use Title VI to address environmental injustice because of the need to prove purposeful acts of discrimination. Additionally, in 2001, the Supreme Court’s decision in Alexander v. Sandoval found that there was no private cause of action to enforce disparate-impact regulations under Title VI.
The current administration is revising how Title VI can be applied to address environmental justice. This effort is at the heart of Louisiana v. EPA. In May 2023, Louisiana filed a complaint against the EPA and DOJ in response to EPA’s investigation of two Title VI complaints filed against the Louisiana Department of Environmental Quality (LDEQ) and Louisiana Department of Health (LDH) in 2022. These complaints were lodged by local environmental groups and allege that state agencies violated civil rights by issuing air permits to Denka chemical and Formosa plastics plants located in a heavily industrialized part of Louisiana.
In its challenge, Louisiana alleges that EPA’s and DOJ’s Title VI disparate-impact regulations exceed statutory authority and are illegal. Disparate-impact regulations implement Title VI and prohibit discrimination by recipients of federal financial assistance. Louisiana also focuses on EPA’s attempts to require Louisiana state agencies to take actions outside the scope of express regulatory requirements, including requirements not imposed by any regulations, such as to conduct a cumulative impact analysis during air permitting, prepare NEPA-like pre-decisional analyses of the potential for disparate impacts, and hold public meetings in a particular manner. Louisiana claims that these extra-regulatory demands by EPA are illegal.
In June 2023, Louisiana moved for a preliminary injunction to prevent EPA and DOJ, during the pendency of the lawsuit, from enforcing the disparate-impact regulations and requiring compliance with extra-regulatory requirements by any Louisiana agency. Shortly after that filing, EPA announced that it had resolved both Title VI complaints and closed its investigations. The EPA did not make a finding of discrimination by LDEQ and LDH.
After hearing oral arguments in the case, on January 24, the court granted Louisiana’s preliminary injunction request and allowed most of Louisiana’s claims to proceed. The court concluded that EPA and DOJ Title VI disparate-impact regulations are likely unlawful since they have not been explicitly authorized by the Civil Rights Act. The court also invoked the major questions doctrine, which requires explicit congressional authorization to regulate questions of major significance. Finally, the court concluded that these requirements likely violate the U.S. Constitution and are made without any authority or any colorable basis for authority (ultra vires).
While not a final decision on the merits, this ruling is significant for several reasons. Since 2021, the Biden administration has been trying to find a more effective vehicle for addressing environmental justice, including by resorting to Title VI. The district judge in Louisiana, however, made clear that he views these efforts with extreme skepticism. If the court’s ruling remains in place and/or other states and courts around the U.S. follow its lead, EPA’s renewed reliance on Title VI may not be a viable option going forward. And, regardless of the ultimate outcome, the court’s immediate impact is unmistakable: EPA and DOJ can no longer enforce Title VI disparate-impact regulations or impose extra-regulatory requirements to address environmental justice in the Pelican state. While the decision represents a major blow to EPA’s environmental justice efforts, EPA and DOJ officials are no doubt weighing the risks of further extending the damage by putting the issue before an unpredictable Fifth Circuit, with the Supreme Court lurking in the background. It is a close call for the agencies, and one that we will have to wait to see how it plays out.
