The EPA Is Backing Down From Environmental Justice Cases Nationwide

ST. JAMES, La. - For a little while, it seemed like Cancer Alley would finally get justice.

The infamous 85-mile stretch between Baton Rouge and New Orleans is one of the nation's most polluted corners; residents here have spent decades fighting for clean air and water. That fight escalated in 2022, when local environmental justice groups filed complaints with the Environmental Protection Agency, alleging that the Louisiana Department of Environmental Quality had engaged in racial discrimination under the Civil Rights Act. In a watershed moment, the EPA opened a civil rights investigation into Louisiana's permitting practices.

But just when the EPA appeared poised to force the LDEQ to make meaningful changes, Louisiana Attorney General Jeff Landry - now the state's governor - sued. Landry's suit challenges a key piece of the agency's regulatory authority: the disparate impact standard, which says that policies that cause disproportionate harm to people of color are in violation of the Civil Rights Act. This enables the EPA to argue that it's discriminatory for state agencies to keep greenlighting contaminating facilities in communities of color already overburdened by pollution -such as in Cancer Alley - even if official policies do not announce discrimination as their intent.

Five weeks after Landry filed his suit, the EPA dropped its investigation, effectively leaving Cancer Alley residents to continue the struggle on their own.

It was devastating," recalled Sharon Lavigne, founder of the grassroots organization Rise St. James. For her work spearheading the fight to stop polluters in Cancer Alley, Lavigne is regarded as a figurehead of the environmental justice movement. Now, it appears that Landry's suit could have a reverberating impact far from her hometown, as the EPA backs down from environmental justice cases across the country.

In Flint, Michigan, advocates say that Landry's suit has already led to the collapse of their own chance at justice. This month, the EPA dropped a Houston case in the same way, without mandating any sweeping reforms. Attorneys told The Intercept they are concerned about the possibility of similarly disappointing outcomes in Detroit, St. Louis, eastern North Carolina, and elsewhere.

Experts say that the EPA appears to be shying away from certain Civil Rights Act investigations in states that are hostile to environmental justice, due to fears that Landry's suit or similar efforts could make their way to the conservative Supreme Court. If that happened, the court appears ready to rule against the EPA -a verdict that could not only undermine the agency's authority, but also significantly limit the ability of all federal agencies to enforce civil rights law.

The lawsuit does not just challenge the EPA's investigation and potential result of our complaint," said Lisa Jordan, an attorney who helped file the Cancer Alley complaint. It challenges the entire regulatory program."

Sharon Lavigne, founder of the grassroots organization Rise St. James, poses for a photo.
Photo: Delaney NolanDystopian Nightmare"

The EPA is tasked with ensuring that its programs act in accordance with Title VI of the Civil Rights Act, which prohibits recipients of federal funds from employing discriminatory methods and practices.The agency has never actually withheld funding due to discrimination, but by 2021, a change seemed to be in the air: Under President Joe Biden's administration, the EPA began to process and pursue over a dozen Title VI environmental justice cases in at least nine states, including Louisiana.

In October 2022, the EPA issued a letter detailing evidence of racial discrimination in the Louisiana DEQ's practices, signaling the agency was prepared to issue its second-ever finding of discrimination. A few months later, after more than a year of negotiations, the EPA released a draft agreement that contained landmark reforms. Among other changes, the reforms would've required the LDEQ to analyze whether pollution would disproportionately affect people of color when making permit decisions.

Lavigne said she hoped the EPA would protect us more than our local officials." EPA Administrator Michael Regan even visited Cancer Alley himself.

Then Landry sued. Referring to the EPA's pursuit of environmental justice as a dystopian nightmare," Landry's suit argues that the EPA can only enforce the Civil Rights Act in cases where state policies are explicitly racist -and that imposing the disparate impact standard merely ensures that emissions are affecting the right' racial groups." The suit decries the EPA as social justice warriors fixated on race."

Gov. Jeff Landry's office did not immediately respond to a request for comment. An EPA spokesperson said they could not grant interviews about the Landry suit since the litigation is still pending, but that the EPA remains committed to strengthening our civil rights compliance work and to vigorous enforcement of Title VI of the Civil Rights Act."

Lavigne said she received a phone call from Regan's staff the day after the EPA backed down and withdrew the draft of the negotiated agreement. They told her the EPA dropped the case because they were trying to protect the Title VI program." That response supports previous reporting suggesting that the EPA worried Landry's suit could wind its way to the Supreme Court, prompting a devastating verdict.

The conservative Supreme Court has already greatly curtailed the EPA's regulatory authority in recent cases over greenhouse gases and wetlands. And the EPA dropped its case the same week that the Supreme Court gutted affirmative action - a ruling that signaled the court's antipathy toward the consideration of race by federal agencies. As no state has policies that explicitly announce discriminatory intent, virtually all the EPA's Title VI cases rely on the disparate impact standard. If a conservative Supreme Court threw out that standard, it would crush the EPA's ability to pursue environmental justice.

Jordan, the attorney, told The Intercept she worries the EPA will now only conduct investigations in states that are relatively friendly" to environmental justice and are unlikely to sue the agency, effectively abandoning the communities that need federal protections the most.

Other states, like Louisiana and Texas, that are known to be discriminatory in their environmental programs, are the ones that would sue," said Jordan. The EPA, she added, is throwing Louisiana communities under the Title VI bus."

And the EPA's reversal still might not work in its favor. At a motion hearing on January 9, the EPA said it dropped its investigation due to procedural deadlines, not Landry's suit. Still, the agency argued that the U.S. District Court for the Western District of Louisiana should dismiss the case in light of the dropped investigation.

It's cheaper to move the people."

Judge James D. Cain Jr., appointed by former President Donald Trump, will soon decide whether the case can continue. During the hearing, he made several statements that showed sympathy to Landry's arguments.

It's cheaper to move the people," said Cain, according to a transcript of the hearing reviewed by The Intercept. Why don't the EPA just move the people? You're going to shut the facilities down? I mean."

Cain continued: My last check, pollution doesn't really discriminate based on race."

A cemetery in St. James Parish, the heart of Cancer Alley" across from oil and gas infrastructure in Louisiana.
Photo: Delaney NolanA Slap in the Face"

Whether or not Landry's suit moves forward, environmental justice advocates are already seeing ripple effects. In August, the EPA abruptly backed down from another investigation - this time near Flint.

Flint's case was strikingly similar: Plaintiffs alleged the Michigan Department of Environment, Great Lakes, and Energy, or EGLE, had violated Title VI by issuing air pollution permits to an asphalt plant in a low-income Black community. Residents of the area were already experiencing high rates of hospitalization for asthma when the permit was granted, and air pollution from asphalt plants has been associated with increased risk of asthma attacks.

After months of negotiations and weekly meetings between the EPA, EGLE, and the advocates who filed the complaint, the EPA seemed to be thinking about a transformational framework for addressing environmental justice issues," recalled Nick Leonard, executive director of the Great Lakes Environmental Law Center, which co-filed the complaint with Earthjustice on behalf of residents.

But then, the EPA suddenly withdrew the draft of the negotiated agreement, instead signing a watered-down version that appeared to rubber-stamp EGLE's policies. In the new draft, EGLE agreed to minor adjustments, such as providing a single air sensor to the community and updating its public outreach materials. The agreement does not require EGLE to conduct cumulative impact analyses, which means the agency still does not have to consider whether it's issuing permits to polluters in already-polluted areas.

The reversal was crushing to those involved in the case. Nayyirah Shariff, director of the organizing coalition Flint Rising, said that six months of our life and hundreds of hours" were essentially wasted when the negotiations were torpedoed. Having had childhood asthma herself while growing up in the Flint neighborhood, they called the EPA's abandonment a slap in the face." A letter to EGLE co-written by Shariff and others called the new agreement unjust and damaging" and warned that Michigan certainly should not be following Louisiana's lead."

Though the EPA's new agreement with EGLE was not made public until August 10, Shariff and Leonard told The Intercept that the EPA changed course at the end of June, within days of the EPA dropping its Cancer Alley investigation. As with the Louisiana case, the EPA didn't provide a clear reason for its decision.

Leonard believes the EPA is specifically nervous about taking up litigation that would force state agencies to adopt rules around disparate cumulative impacts. The EPA will likely keep pursuing simpler procedural points, he said, like ensuring easier access to public meetings and translation services. But he fears they'll no longer pursue more sweeping reforms.

We were sort of just blindsided by how the conversation changed right around the time the Louisiana case came out," said Leonard.

When asked about the EPA's choice to reverse course on the Flint case and other Title VI investigations in the wake of Landry's suit, an EPA spokesperson wrote that the circumstances of the Louisiana investigation do not apply to other pending EPA Title VI complaints." The spokesperson added, EPA is moving urgently, with an unprecedented commitment to advancing environmental justice. ... The lived experiences of impacted communities must be central in EPA decision-making."

Ted Zahrfeld, board chair of the St. Francis Prayer Center, one of the groups that sued EGLE and participated in ensuing negotiations, dubbed the neighborhood on Flint's outskirts Asthma Alley."

This Louisiana decision - or catastrophe, I would call it - happened, and within a few days, the EPA told us: Well, there's going to be a new agreement,'" said Zahrfeld. St. Francis Prayer Center sits directly across from the asphalt plant and has long been a source of refuge for the community. Now, in light of the EPA's reversal, Zahrfeld wonders what he will say to people who come through the center's doors. What do I tell those parents? What do I tell that kid? The EPA is supposed to be protecting them - what are they doing?"

An animal waste pond behind a hog farm in Sampson County, N.C., where the EPA opened a civil rights investigation over such ponds disproportionately polluting Black and Latinx communities.
Photo: Delaney NolanA Chilling Effect"

Participants in environmental justice cases in Texas, Tennessee, Mississippi, North Carolina, and Missouri all expressed concerns that Landry's lawsuit had left them vulnerable.

Blakely Hildebrand, a senior attorney with the Southern Environmental Law Center, called Landry's arguments against disparate cumulative impact extremely concerning." Hildebrand spearheaded a complaint around hog operations in Duplin County, North Carolina, which aimed to call the EPA's attention to biogas, a fuel sourced from hog and other animal waste that pollutes surrounding air and water.

Hildebrand noted that Duplin is located in the Black Belt, where formerly enslaved people settled - that's where the industry chose to consolidate its operations." Some of those breathing the polluted air in Duplin, she added, have had their land passed down generation to generation, dating back to when their ancestors were emancipated." This parallels Cancer Alley, where petrochemical plants sit in the footprint of plantations. Now, Hildebrand is not only worried for the Duplin case, but also for environmental justice work throughout the southeast."

There are absolutely concerns based on what we saw in Louisiana," Chris Menefee, attorney general of Harris County, Texas, told The Intercept. Menefee has been part of a Title VI investigation into the growing number of concrete batch plants in Harris County's Black and Latino neighborhoods, where Black residents are 40 percent more likely to die of cancer than the average Texan.

When you're in a red state like Texas, where the state environmental regulatory body has pretty much allowed industry to have free rein ...we're incredibly vulnerable," said Menefee. That last line of protection is going to be the EPA." In November, he told the Houston Chronicle he hoped the EPA would put the hammer down."

But on January 2, after nearly a year of negotiations, the EPA announced they were closing the Texas case too. Just like in the Landry suit, the Texas Commission on Environment Quality accused the EPA of overreach, and the case was closed without any changes requiring the state to account for cumulative disparate impacts.

Menefee noted that the Texas regulatory agency recently approved another concrete crushing plant, this time across from a hospital, and again near neighborhoods of color already polluted by concrete plants. He said the agency told hundreds of objecting residents it was not taking into account race."

Leonard, of the Great Lakes Environmental Law Center, noted that while the EPA's fears of a Supreme Court decision undermining their authority are well-founded, advocates and attorneys have always known that the agency would face pushback, should it decide to take more forceful action on civil rights enforcement. They seem to not have been prepared for that inevitability," he said.

Andre Segura, vice president of litigation for Earthjustice, attended the motion hearing for Landry's suit on January 9. He said he had the impression that the Department of Justice is treating this case very seriously," but like Leonard, he noted that the pushback against the EPA's efforts should be no surprise. They're going to challenge these fundamental tools" of civil rights enforcement, Segura said, referring to industry and political actors. This is expected."

To Shariff of Flint Rising, Cancer Alley is emblematic of environmental justice struggles nationwide, as a community that has been marginalized and abused for decades."

If they can't get justice? Then it's just a chilling effect for every other environmental justice community across the country," they said.

Nevertheless, residents of sacrifice zones say that in the face of the EPA's absence, they'll continue the fight on their own.

When Lavigne, of Rise St. James, told EPA staff at the end of June that her community was upset, she was told they'd come down to give an explanation. That meeting never happened. But she did recently get a call from EPA head Regan - to alert her that, despite her objections, the EPA had decided to hand more authority to LDEQ. In the final days of 2023, the EPA announced that Louisiana will now be allowed to issue permits for wells that inject carbon underground, something she and her organization strongly oppose.

Still, Lavigne said she'll ensure the community gets what they need," regardless of the EPA's inaction. We're all we've got."

The post The EPA Is Backing Down From Environmental Justice Cases Nationwide appeared first on The Intercept.