As the objectives gain traction, they are meeting state resistance in court.

The US Environmental Protection Agency’s (EPA’s) strategic plan for 2022–26, released in March 2022, added a new foundational principle to the agency’s mission: the advancement of environmental justice and equity. Since unveiling its strategic plan, EPA has taken a number of actions to make good on its mission, aggressively furthering its environmental justice goals and objectives. As recently as April 2023, EPA awarded $177 million to open 10 Environmental Justice Thriving Communities Technical Assistance Centers to improve accessibility to federal grant funding for communities with environmental justice concerns.

Most prominently, EPA has (1) increased its scrutiny of, and investigation into, claims under Title VI of the Civil Rights Act; (2) pushed for cumulative impact analyses for permits; and (3) initiated emergency actions under Section 303 of the Clean Air Act to restrain emissions. Numerous corporations and state agencies have been implicated in these efforts, and some are pushing back.

Title VI Scrutiny

EPA has been steadily increasing its scrutiny of state permit programs to promote compliance with the Civil Rights Act under its Title VI authority. Consistent with its strategic plan, EPA has explicitly acknowledged its intention to strengthen civil rights enforcement in communities with environmental justice concerns.

In the last two and a half years, EPA has accepted 16 Title VI complaints and opened investigations in at least nine states, including Georgia, Michigan, Arizona, Rhode Island, Louisiana, Massachusetts, Florida, Texas, and Mississippi. These investigations implicate a variety of industries, including concrete batch plants, waste incinerators and facilities, plastic and petrochemical plants, water utilities, sterilization facilities, asphalt plants, and automotive manufacturing. Among the complaints the agency has accepted for investigation were two complaints levied against the Louisiana Department of Environmental Quality (LDEQ) alleging racial discrimination in the agency’s administration of its air pollution control program.

The findings of EPA’s Title VI investigations have potentially sweeping implications, since the findings are not cabined by environmental compliance considerations, but instead extend to compliance with Title VI.

Cumulative Impact Analyses and Section 303 Emergency Actions

In January 2023, EPA released a 52-page addendum to its previously issued “EPA Legal Tools to Advance Environmental Justice” in which it reiterated its legal authority to address cumulative impacts in communities with environmental justice concerns. EPA identified numerous areas in which consideration of cumulative impacts could be potentially relevant, including standard-setting, permitting, cleanup, emergency response, funding, planning, state program oversight, and other decision-making — as well as its power to initiate administrative or judicial action to address actual or potential imminent and substantial endangerment.

With regard to judicial action, more recently the agency has been employing a little-used provision of the Clean Air Act to address situations with the “potential for imminent and substantial endangerment.” Section 303 of the CAA outlines the agency’s emergency powers to “immediately restrain” a source that is emitting pollutants that pose an “imminent and substantial endangerment” to the public health or welfare of the environment. EPA has used this power sparingly — only 14 times since 1971. And yet, since 2021, EPA has filed Section 303 emergency actions four times. One matter is currently pending in Louisiana federal court, and the other three were resolved via agreed settlements and penalties.[1]

In addition to these emergency actions, EPA has been pushing for state agencies to utilize cumulative impact analyses in order to address the disparate impact of certain activities in environmental justice areas. Most recently, EPA has promoted these types of analyses as part of its Title VI investigations.

For example, as a result of its investigation into LDEQ, EPA sent a Letter of Concern on October 12, 2022, recommending that LDEQ undertake a cumulative impact analysis for permits in specific areas it claimed implicated environmental justice concerns. More specifically, EPA strongly advised LDEQ to conduct a cumulative impact analysis before issuing specific permit renewals, Title V Clean Air Act permits, and the next significant Clean Air Act permitting in specific industrial areas.

The agency further instructed LDEQ that those analyses should “at a minimum”:

• consider input from stakeholders;
• examine current, baseline cumulative risk burdens and non-pollutant stressors such as income, race, employment, and other social determinants of health;
• consider impacts from any facility’s mutagenic carcinogen emissions on lifelong residents who have been exposed starting in early-life; and
• propose evidence-based recommendations for maximizing potential positive health impacts and minimizing or avoiding potential adverse impacts.

In addition to pursuing cumulative impact analyses as part of its Title VI investigations and findings, EPA has been working to bolster the use of such analyses at the local level. EPA had some initial success in supporting the City of Chicago’s denial of a permit to a recycling facility in an environmental justice area. Chicago’s denial of the permit was recently vacated by a Chicago Administrative Law judge, however, demonstrating that future court battles are on the horizon that will likely undermine the agency’s environmental justice agenda.

State Pushback and Allegations That EPA Is Overstepping

On May 24, 2023, the state of Louisiana filed a suit against EPA, alleging a number of illegalities tied to the agency’s Title VI investigation into LDEQ, including its Letter of Concern sent in October 2022 and its acceptance of three Title VI complaints filed against LDEQ related to its activities vis-à-vis manufacturing facilities in the Industrial Corridor.

Chiefly, Louisiana alleges that EPA overstepped its authority in assessing Title VI compliance based on disparate impacts. Louisiana claims that Title VI does not authorize enforcement on the basis of “disparate impacts” but instead only for intentional discrimination, and EPA cannot effectuate the Civil Rights Act’s prohibition on intentional discrimination by imposing mandates based on disparate impact. Louisiana refers to the alleged end result as a “dystopian nightmare” where “[a]ctivities that would be perfectly lawful under environmental law are thus now threatened because EPA believes those activities occur proximate to the ‘wrong’ racial groups.”

Louisiana also cites in its complaint the recent US Supreme Court decision West Virginia v. EPA and the Court’s utilization of the “major questions doctrine.” Louisiana alleges that EPA’s imposition of disparate-impact-based requirements satisfies all three triggers of the doctrine, claiming that it (1) involves a matter of great political significance, (2) seeks to regulate a significant portion of the American economy, and (3) intrudes into an area that is the particular domain of state law. Some have speculated that the West Virginia ruling would be utilized to try to undermine EPA initiatives, and that notion appears to be the case for Louisiana. In addition to these claims, Louisiana alleges that EPA has violated the Spending Clause of the Constitution in attempting to impose disparate-impact requirements, when such obligations are not unambiguously required under the Civil Rights Act.

Louisiana also challenges the agency’s insistence that LDEQ undertake a cumulative impacts assessment in order to address disparate impacts. Louisiana alleges that such assessments are found nowhere in EPA’s Title VI regulations and that the agency cannot engage in rulemaking (namely, creating new putative Title VI requirements) except through compliance with the APA and presidential approval consistent with Section 602 of the Civil Rights Act.

Finally, Louisiana claims the agency has undermined any meaningful and informal resolution to the investigation by delegating away its authority to extend the 180-day timeline for resolving Title VI complaints. Specifically, Louisiana claims that EPA has illegally delegated its authority by agreeing to allow public interest groups to veto the agency’s ability to extend the 180-day timeline for complaint resolution.

On June 21, 2023, even before EPA could respond to the complaint, Louisiana moved for a preliminary injunction that would enjoin the agency from, among other things, imposing or enforcing any requirements based on disparate impact on the state under Title VI and imposing or enforcing any Title VI-based requirements that are not (1) ratified by the President and (2) found in EPA’s applicable regulations. Louisiana further moved to expedite the court’s ruling on the motion for preliminary injunction, seeking a ruling by July 11, 2023 (the date on which EPA’s 180-day timeframe to resolve the Title VI Complaint expires).

EPA’s Attempt to Resolve Louisiana’s Complaint

In response to Louisiana’s claims, EPA sent LDEQ a letter on June 27 in which it administratively closed its Title VI investigations against the state. Citing “multiple significant developments,” EPA said it will not initiate any further action against Louisiana, enforcement or otherwise, under Title VI or other civil rights laws. The letter goes on to justify the administrative closure by citing a number of “significant actions” that are reducing the emissions at issue, including:

• specific actions EPA has taken to address pollution from permitted companies underlying the investigation, including a consent agreement and final order under RCRA and ongoing state proceedings;
• EPA’s proposed rule under Section 112 that aims to significantly reduce emissions of toxic and other harmful air pollutants nationwide, including chloroprene and ethylene oxide (the agency contends it must finalize a rule by March 29, 2024); and
• EPA’s plans to conduct a cumulative impact assessment (CIA) in the relevant areas underlying the investigations; the agency clarified that the CIA will not be conducted pursuant to Title VI, and instead will be conducted consistent with EPA’s purpose and functions as reflected under the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act.

EPA goes on to say that it will convene a multi-stakeholder workgroup of locally affected parties and that LDEQ would benefit from participating. From there, the agency states that the CIA will review and analyze available data to assess exposures to both “chemical and non-chemical stressors” and that the CIA will identify and recommend, but not require, mitigation alternatives.

Consistent with its letter closing the Title VI investigations, EPA filed a notice of resolution of Title VI complaints in court the same day it sent its letter to LDEQ. On June 29, the court ordered Louisiana to file a response by July 6 as to what claims, if any, are resolved and/or what claims remain in its lawsuit. In response, Louisiana filed a notice stating that while EPA’s letter resolves some of the state’s claims, it does not resolve all — and the state will continue to seek a preliminary injunction for EPA’s attempts to impose cumulative-impact requirements and its utilization of disparate-impact mandates.

Outlook

The outcome of Louisiana’s suit against EPA will most certainly have broad implications for the agency’s ability to execute its environmental justice goals. As some speculate, a case such as this could potentially make its way up through the conservative Fifth Circuit and onto the Supreme Court docket, especially in light of the Court’s recent ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

Although in SFA, the Court assessed the use of race in college admissions, it resoundingly rejected the premise that state actors may remedy the effects of societal discrimination through explicitly race-based measures. The Court found that ameliorating such discrimination “does not constitute a compelling interest that justifies race-based state action,” with Justice Thomas, in his concurrence, likening such efforts to “government-imposed racism.” These points mirror the type of claims Louisiana alleged in its complaint against EPA, allowing for Louisiana and other similarly situated parties to attempt to use the Court’s precedent in SFA to push back against EPA’s use of disparate-impact analyses and environmental justice goals more broadly. While the extent to which the SFA precedent will successfully bolster such arguments remains uncertain, continued fights on these matters appear inevitable.

Endnotes

[1] See https://www.epa.gov/newsreleases/new-indy-agrees-11-million-penalty-and-consent-decree-resolve-imminent-and-substantial; see also https://www.justice.gov/enrd/consent-decree/file/1535851/download; see also https://www.justice.gov/opa/pr/united-states-files-complaint-and-reaches-agreement-stipulation-limetree-bay-terminals-llc.