Environmental Justice Update: Differing State and Local Approaches to Federal Civil Rights Actions

Federal efforts have used a “whole of government” approach combining enhanced compliance and enforcement efforts using federal environmental laws like the Clean Air Act, Clean Water Act, and Superfund; through significant spending including the Inflation Reduction Act; and finally through more aggressive use of powers granted by federal civil rights laws. Our list of recent efforts is here.

Muscular use of federal civil rights authorities has perhaps been the most notable of these efforts and, as these efforts have been ongoing for two years, has generated varying reactions from state and local regulators caught up in civil rights investigations.

Louisiana v. EPA Litigation

The Biden Administration announced its EJ priorities in 2021 with a “Journey to Justice” tour through Louisiana, Mississippi, and Texas. In the almost two years since, Louisiana has remained a consistent focus of both federal and non-governmental organizations (NGO) efforts. The intensity and variety of issues that have arisen are significant. They include:

• Federal regulators’ focus on air emissions from plastic-related facilities. These include the April 6 announcement of more stringent Clean Air Act standards applicable to the Synthetic Organic Chemical Manufacturing Industry (discussed here) and EPA’s Section 303 Clean Air Act suit against the Denka plastic facility in St. James Parish for releases of chloroprene.
• EPA’s pursuit of civil rights claims against regulators related to jurisdictions where these facilities operate (see here).
• A private foundation providing $85 million in funding for a “Beyond Petrochemicals” campaign targeted at facilities in Louisiana, Texas, and the Upper Ohio Valley.
• Litigation filed by NGOs in March against St. James Parish alleging that its industrial permitting process was rooted in racism.

Louisiana has been an active litigant against federal efforts it perceives as overreach since the Biden Administration took office. (e.g., here, discussing the Louisiana v. Biden case involving social cost of carbon.)

In a case entitled Louisiana v. Biden filed in the Western District of Louisiana on May 24, Louisiana raises many of the US Environmental Protection Agency’s (EPA) EJ activities in the Biden Administration including the “Journey to Justice” tour, EPA’s civil rights complaints against Louisiana regulators, EPA’s requests for specific relief to address EPA’s beliefs that Louisiana regulatory actions collectively disparately impacted EJ communities. and that EPA had effectively delegated enforcement activities to non-government actors like NGOs. Louisiana views these actions taken together as unconstitutional and violating statutes including the Administrative Procedure Act (APA) and is seeking declaratory and injunctive relief.

Chicago Settlement

Like Louisiana, Chicago has been at the center of recent EJ controversies. Last year, we discussed controversies related to the planned relocation of a recycling operation from the wealthy Lincoln Park area of Chicago to an EJ community on Chicago’s southeast side.

Chicago city leaders originally opposed the federal civil rights complaint, which put $375 million in yearly funding at issue. But over time, negotiations commenced and a settlement was reached shortly before former Chicago Mayor Lori Lightfoot left office. (See here for background.) Settlement terms include:

• In collaboration with community groups, Chicago would design and conduct a cumulative impact assessment (CIA) by September 1, 2023, describing “how environmental burdens, health conditions, and social stressors vary across Chicago, and identify neighborhoods that experience the greatest cumulative impacts.”
• City officials including the Chief Sustainability Officer and the Commissioner of the Department of Public Health will engage in public outreach and designate a city EJ Project Manager to “work cross-departmentally to develop and oversee the implementation of improved internal policies and operations to support environmental justice” including an enhanced notification process” to generate greater awareness of zoning, permitting, and environmental enforcement; a new public participation policy with clear standards; and procedures residents of EJ communities can use to raise civil rights complaints.
• Commitments from the city to revise zoning and industrial permitting to address EJ concerns; and
• Improved transparency and data collection efforts related to environmental permitting, monitoring, and enforcement.

In exchange for Chicago making these commitments, the federal EJ-related civil rights claims against the city were withdrawn.

Steps Businesses Can Take

Even though EJ civil rights complaints are focused on state and local regulators, businesses can end up as collateral damage for these intra-governmental fights and face reputational consequences themselves. (See our discussion of these issues here.) Steps businesses can take to minimize risks related to operations in EJ communities include consistent community engagement, assurance that the all the appropriate stakeholders inside a company are aware of EJ-related risks, and clear discussions on environmental justice-related issues in corporate sustainability-type reports to ensure that affirmative claims either rely on verifiable data and strike a balance between aspiration and reality. Members of the firm’s Environmental & Energy groups regularly monitor state and federal EJ efforts.