Environmental Justice Update: Seven Lessons from Louisiana

Read together, the decisions emphasize that while EJ concerns can be factored into an analysis, regulators do not have carte blanche to take any imaginable action to address perceived EJ issues.

Background

The US Environmental Protection Agency (EPA) has prioritized EJ issues since the Biden Administration took office and it continues to be a regulatory priority. As part of this process, the Biden Administration committed to using a “whole of government” approach and to attack EJ issues using all available authorities, including those under federal civil rights laws. (See Action 4 in EPA’s Equity Action Plan, discussed in greater detail here.) While this goal may be laudable at least in general terms, it does not mean that all attempts to address EJ issues can withstand court review, as is demonstrated by the two cases below. 

RISE St. James v. Louisiana Department of Environmental Quality (LDEQ)

RISE St. James v. LDEQ, decided in January 2024, was an appeal by LDEQ and an intervenor, FG LA LLC (“Formosa”), against a lower court’s judgment that had reversed LDEQ’s decision issuance of 15 permits to Formosa for a proposed chemical complex in St. James Parish, Louisiana, and vacated those permits.

The plaintiffs, including RISE St. James, petitioned for judicial review of LDEQ’s decision to issue permits to Formosa. The plaintiffs claimed that the issuance was in violation of various environmental standards and the public trust doctrine and failed to consider the disproportionate impact on nearby minority communities. The Court of Appeals rejected these arguments, reversed the lower court’s judgment, and reinstated the permits.

Three takeaways from this decision:

• First, the plaintiffs’ opposition to the Formosa project is both longstanding and passionate. One of the plaintiffs, RISE St. James, has pursued other litigation in the EJ space, most notably against St. James Parish about zooming issues. We discussed this case here when it was filed and again upon its dismissal.
• Second, the decision makes clear that, in its view, EJ concerns – taken alone – do not provide independent reasons for permit denial. For example, concerned citizens sought to have information from the federal EJScreen database weighed as part of the permitting process on the grounds that the database showed that persons living nearest the facility had heightened cancer risk. (For a more in-depth discussion on EJScreen, see here.) While the court accepted that the EJScreen information was material, it deferred to LDEQ’s decision to consider, but not make outcome determined by, information gleaned from EJScreen.
• Finally, this decision comes more than three years after LDEQ initially chose to issue permits in late 2020. The case emphasizes the need for early engagement with both relevant agencies and surrounding communities to avoid unnecessary delays following submission of permit applications. Certainly, EJ issues need to be considered and addressed as part of this process.

Federal Decision

In the State of Louisiana v. US EPA decision, a Louisiana federal court granted a preliminary injunction against recent federal attempts to leverage civil rights authorities to compel state regulators to more aggressively evaluate projects like the Formosa project above. (Case-specific background is available here and here.) Louisiana viewed Title VI of the Civil Rights Act – the major civil rights tool available to EPA – as prohibiting only intentional discrimination and not all regulatory actions that have a disparate impact. 

The Louisiana v. US EPA court largely accepted the state’s arguments that federal civil rights demands violated the Constitution, Title VI of the Civil Rights Act of 1964, and the Administrative Procedures Act (APA). The court granted a preliminary injunction against EPA and the US Department of Justice (DOJ), preventing them from imposing or enforcing any disparate impact-based requirements against Louisiana, at least without additional ratification by the President or explicit reference to EPA’s disparate impact regulations, 40 C.F.R. S 7.35(b),(c). 

Takeaways from this decision:

• First, federal authorities clearly have authority to investigate civil rights concerns in the EJ space and, indeed, have increasingly used these authorities in overburdened communities. EPA’s FY2023 report on Enforcement and Compliance, released in December 2023, notes that the percentage of inspections in EJ communities has effectively doubled in recent years. The distinction between intentional discrimination and disparate impact does not affect EPA’s investigatory powers.
• Second, this decision followed federal civil rights investigations that began in 2022 which theoretically jeopardized substantial federal funding flowing to state regulators. These investigations hinged on whether Louisiana regulators had failed to consider the cumulative impact of certain projects on environmentally overburdened communities. (Cumulative impact is discussed in detail here.) At least preliminarily, the court found that EPA did not have authority to require cumulative impact assessments absent statutory authority. 
• Third, the case reflects that significant governance issues flowed from how quickly federal authorities sought to address EJ issues. Here, the court noted that EPA lacked statutory authority to compel implementation of permit conditions related to issues like odor, traffic, and safety that EPA had requested from Louisiana regulators, reflecting concerns of EJ communities. (The requirement for agencies to have explicit statutory authority stems from cases including West Virginia v. EPA, which we discussed here.) Regulations cannot simply cite EJ and require permit applicants to address all conceivable issues. 
• Finally, having seen this decision, other states will push back on EPA attempts to use civil rights authorities to address EJ issues. Here, when threatened with litigation, EPA backed off its civil rights investigations even though EPA and Louisiana were close to settling these claims. When faced with similar complaints, other states may be encouraged to litigate against EPA, believing it will blink again. 

Members of the firm’s Environmental and Energy & Cleantech groups regularly monitor state and federal EJ efforts.