Will Louisiana v. EPA change environmental justice?

By: Madeline Cintron

Fresh air and blue sky are a stark contrast to the heavy smog and toxic pollutants that people across the United States regularly dealt with before the Clean Air Act (CAA).[1] Environmental statutes like the CAA help create healthier spaces across the United States.[2] However, even with environmental statutes and regulations, there are people across the country who are surrounded by dirty air and/or are heavily impacted by other forms of pollutants.[3] From the beginning, environmental protection has not been applied equally across the United States.[4] Historically, “minority, and low income populations [have] bear[ed] a higher environmental risk burden than the general population.”[5]

Civil Rights and Environmental Law

One way the EPA attempts to deal with this disproportionate impact is through implementing Title VI of the Civil Rights Act of 1964 within environmental policy.[6] Title VI requires that federal agencies, such as the EPA, must ensure that any program or activity that receives federal funding does not discriminate against persons based on race, color, or national origin.[7] The EPA has interpreted this to mean that states must consider disparate impact when approving permits.[8] The EPA requires that a disparate impact analysis looks at “whether a permit will have a disproportionate impact on the basis of race, color, or national origin[,] . . . whether there is a substantial and legitimate justification for any such disproportionate impact, [and] whether there is a less discriminatory alternative.”[9] While some states have entered into agreements with the EPA involving this requirement, other states continuously fight this requirement in court.[10]

In Louisiana v. EPA, the EPA objected to the Louisiana Department of Environmental Quality (LDEQ) issuing a permit under the CAA without first considering disparate impact.[11] The district court sided with Louisiana and held that it was outside the EPA’s authority to require the state to consider disparate impact as part of its Title VI analysis.[12] Although this case does not require every state to stop considering disparate impact as part of its Title VI analysis, it has the potential to influence how other states deal with this analysis going forward. While Title VI and environmental justice are not the same, they are complementary, and when something impacts one, it may also impact the other.[13]

Environmental Justice in Context

The environmental justice movement began in the 1960’s and was primarily started by people of color.[14] In the 1990’s, the federal government began to participate through the creation of the Environmental Equity Workgroup, which was later changed to the Office of Environmental Justice.[15] The EPA currently “defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”[16] Environmental justice attempts to provide “equitable access to a healthy” environment for all people.[17]

In 2023, the federal government attempted to revitalize its commitment to environmental justice when it issued Executive Order 14096.[18] However, executive orders are not law, and are not enforceable in the courts.[19] Environmental justice movements are being approached differently among the states, and while the EPA may be attempting to further environmental justice goals pursuant to the executive order, as mentioned above they are meeting resistance from some state agencies.[20] It may be up to states and local governments to create enforceable law to make environmental justice efforts binding.

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[1] Shelia Hu, The Clean Air Act 101, Nat. Res. Def. Council (Apr. 5, 2024 6:59, PM), https://perma.cc/CYZ3-S3AQ.

[2] The United States Clean Air Act turns 50: is the air any better half a century later?, U.N. Env’t Assemb. (Apr. 5, 2024, 7:02 PM), https://perma.cc/BJ7T-WGXS.

[3] Key Findings, American Lung Ass’n, State of the Air (Apr. 5, 2024, 7:05 PM), https://perma.cc/9EMD-9CYG.

[4] How did the Environmental Justice Movement Arise?, U.S. Env’t Prot. Agency, Env’t Just. (Apr. 5, 2024, 7:08 PM), https://perma.cc/6F5M-GSVW.

[5] Id.

[6] Office of Gen. Council, Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions, U.S. Env’t Prot. Agency 1 (2022), https://www.epa.gov/system/files/documents/2024-01/ej_and_cr_permitting_faqs.pdf.

[7] Title VI and Environmental Justice, U.S. Env’t Prot. Agency (Apr. 5, 2024, 7:19 PM), https://perma.cc/LD9P-FQZR.

[8] Off. of Gen. Council, supra note 6, at 13-15.

[9] Id. at 5.

[10] Louisiana v. EPA, 2024 U.S. Dist. LEXIS 12124, at *3-4 (W.D. La. 2024).

[11] Id.

[12] Id. at 33.

[13] Off. of Gen. Council, supra note 6.

[14] How did the Environmental Justice Movement Arise, supra note 4.

[15] Id.

[16] Off. of Gen. Council, supra note 6, at 4.

[17] How did the Environmental Justice Movement Arise, supra note 4.

[18] Exec. Order No. 14096, 88 Fed. Reg. 80 (Apr. 21, 2023), https://perma.cc/MM9T-X3Y3.

[19] Off. of Env’t Just., Title VI and Executive Order 12898 Comparison, US Env’t Prot. Agency (2014), https://www.epa.gov/sites/default/files/2015-02/documents/title-vi-ej-comparison.pdf; What is an Executive Order?, A.B.A. (Apr. 5, 2024 ,7:356 PM), https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/.

[20] Louisiana, 2024 U.S. Dist. LEXIS 12124 at *3-4.

Photo courtesy of Markus Spiske