If successful, Landry’s EPA suit could be ‘a significant setback’ for the Civil Rights Act
7th August 2023 · 0 Comments
By Lue Palmer
Contributing Writer
(Veritenews.org) — Robert “Bobby” Taylor has been living in the shadow of a chemical plant for nearly 50 years. He first became aware of the potential connection between the plant’s emissions and cancer in 2016, after a community meeting near his home in Reserve, Louisiana.
Reserve is in St. John the Baptist Parish, part of the seven-parish petrochemical corridor between New Orleans and Baton Rouge with a large number of oil refineries and chemical plants. Concentrated in predominantly Black communities such as Reserve, many of the plants emit potentially cancer-causing chemicals. In recent decades, the River Parishes have taken on another name: Cancer Alley.
The Denka Performance Elastomer Plant, which produces chloroprene, a chemical used to make synthetic rubber, has been operating since 1969 just a few minutes from Taylor’s home. In 2010, the U.S. Environmental Protection Agency found that chloroprene is a likely carcinogen.
“It’s a horror story that we live,” Taylor said. “I mean, my mother died of cancer. My brother, my mama’s brother, my daughter’s children.”
In 2016, Taylor formed the Concerned Citizens of St. John, a group that seeks to bring attention to the effects of the petrochemical industry in the parish. His lifetime neighbor Mary Hampton later took on the role of president of the organization, submitting complaints to the state and the EPA, and asking for more regulatory action.
The group celebrated a victory last year when the agency launched an investigation into possible violations of the federal Civil Rights Act by the state agencies that are responsible for protecting the communities from pollution – the Louisiana Department of Environmental Quality and the Louisiana Department of Health. The EPA argued that inaction from the state impacted the mostly Black residents in the area, creating a discriminatory effect even if there was no evidence of intentional discrimination, a standard known as “disparate impact.”
The victory was short-lived. In June, the EPA announced that it would be dropping the matter. In a statement, an EPA spokesperson said, “EPA remains fully committed to improving environmental conditions in St. John the Baptist and St. James Parishes.”
The agency’s reversal came after Louisiana Attorney General Jeff Landry – a conservative Republican and the current frontrunner to succeed Democratic Gov. John Bel Edwards in the state’s 2023 gubernatorial election – filed a lawsuit against the agency, seeking to end the probe. The crux of Landry’s argument is that in order to launch an investigation under the Civil Rights Act, the EPA would have to demonstrate the state intended to discriminate against Black residents.
Though the EPA has dropped the investigation, Landry is still pursuing the lawsuit, which could have major implications for the Civil Rights Act. In interviews with Verite, legal experts said that if successful, the suit could achieve a longtime goal of conservative activists to dismantle a legal tool used in civil rights enforcement.
That effect could be felt not only by the EPA, but across federal agencies.
“If Louisiana were to prevail in that case, it would be a significant setback for Title VI,” the relevant portion of the Civil Rights Act, said Andrew Mergen, director of Harvard’s Environmental Law and Policy Clinic and former chief of the Appellate Section, at the U.S. Department of Justice. “It would be bad for Title VI across the board, but particularly bad for EPA’s authority.”
In the suit, Landry argues that the Biden administration is giving privileges to some groups based on race — that the EPA cares more about who is living near industrial pollution than the pollution itself, a situation his side described as a “dystopian nightmare.”
But to Taylor, “dystopian nightmare” might better describe the past several decades for the Black residents of Cancer Alley.
“It just so happens Black people like to breathe in chemicals? That’s just how the dice rolled?” Taylor, who is Black, said. “You can’t read people’s minds. You’ve got to go by what they do.”
Disparate impact
In January 2022, Concerned Citizens of St. John and the environmental group the Sierra Club submitted a joint complaint to the EPA. This complaint would help form the basis of the EPA investigation, along with a second complaint submitted the following month by four other organizations in nearby parishes.
“St. John the Baptist Parish is a majority Black parish, and due to LDEQ’s and LDH’s failures, its residents face the highest cancer risk from air pollution in the nation,” read the January complaint, alleging the agencies failed to control hazardous air pollution from the Denka chloroprene plant.
The EPA opened its investigation a few months later. The agency was probing whether Louisiana had violated Title VI of the Civil Rights Act of 1964, which prohibits agencies that receive federal funding – as the two state departments do – from discriminating on the basis of race, color or national origin.
In October 2022, the EPA issued a 56-page letter detailing its initial findings, which among other things stated that by granting operating permits allowing emissions from petrochemical facilities, the Department of Environmental Quality exposed children at a local elementary school and residents in Reserve to decades of air pollution associated with an increased lifetime risk of cancer.
“EPA has reason to believe that the cancer risks from air toxics exposures may be borne disproportionately by the Black residents of the Industrial Corridor,” the letter reads.
The EPA argued that although the state may not have intentionally discriminated against the Black residents of the River Parishes, Louisiana still burdened them disproportionately by issuing permits, failing to monitor air pollution or properly inform the residents of the health risks over a period of decades. It further notes that the racial disparities in the River Parishes trace back to slavery, as former plantations in the area have now been transformed into petrochemical plants.
“The historical context for the formation of the Industrial Corridor is important to understand,” the EPA wrote.
The area’s transformation into the industrial corridor took off in the mid-20th century – at the tail end of the Jim Crow era – when Taylor, his wife and three children built a new house in Reserve.
The home, where Taylor still lives, is on East 26th St., blocks from the Mississippi River. Taylor said that only white families used to live close to the river, but Reserve was changing. In 1960, the town was more than 60 percent white. A decade later, it was about half white and half Black. Now, 70 percent of its residents are Black.
There were other changes beginning to take shape. Taylor remembers that in the years before they moved into their new home, his wife looked out at the construction and smoke less than a mile beyond the nearby school.
“She’d say, ‘Bobby, what’s that they’re building over there?’”
In October 1968, the Taylor family welcomed their fourth child, a baby girl. Before her first birthday, the DuPont chemical plant went into operation producing chloroprene, a four-minute drive from their home.
“She only had three months to get some fresh air before they started polluting the air with chemicals,” Taylor said.
The plant is still operational, though DuPont sold it to Denka, a Japanese chemical company, in 2015. In the 54 years since it went into operation, major polluting plants have continued to open along the length of the Mississippi River between New Orleans and Baton Rouge. Studies have shown that this growth has come with increased risks of cancer. A 2019 investigation by ProPublica found that parts of the petrochemical corridor had cancer risks up to 47 times above what the EPA considers an acceptable risk level.
Hampton, Taylor’s friend since childhood, joined the group shortly after he founded it, taking on the role of its president, leading its request for the EPA to investigate the alleged civil rights violations. Hampton lives about a mile away from the Denka plant, on a plot of land she inherited from her father, and shares with her family
“My dad thought he was leaving us a legacy when he died. He left us a death sentence,” said Hampton, who has lost eight of her family members to cancer. “My dad had cancer. He died of cancer. My brother, next door to my dad, he just died last month. My brother next door to him has cancer. My brother who just died, his wife died with cancer. My mother’s brother who used to live on the side here, his wife died with cancer. My son-in-law, who came from across the river, and moved down the street, he died of cancer.”
“All of this was racial,” Hampton said.“And they don’t want to say it’s racial.”
Can Landry succeed?
Landry filed his suit on May 22, while the EPA was in the midst of its investigation.
When the agency dropped the investigation a little over a month later, Landry might have chosen to close the suit. But on July 6, Landry’s office notified the court that it would be pursuing the case. Experts told Verite that this gives the case questionable legal standing.
Landry’s central argument is that the Civil Rights Act does not give federal agencies the right to use the disparate impact standard, citing a U.S. Supreme Court case from 2001. The case, Alexander v. Sandoval, is often cited in legal discussions of disparate impact. Its final ruling prohibited private individuals, not regulatory agencies, from filing civil cases based on the disparate impact standard. Shortly after the resolution of the case, the Justice Department reaffirmed federal agencies’ right to use the disparate impact standard. But to Landry’s mind, the question isn’t resolved. He believes the same logic that applies to private actions should apply equally to regulatory actions.
“No matter their intentions, the federal government should not be intimidating state agencies operating under an elected Governor and an elected Legislature,” said the lead attorney in the case, Solicitor General Liz Murill, in a statement. (The Attorney General’s Office previously provided the same statement to The Times-Picayune.) “Our office is defending Louisiana against an unlawful assault by the EPA on our river-based communities and the employers who live in and contribute to our economy. We will continue to oppose this coordinated and misguided attack.”
The district judge and the U.S. Court of Appeals for the 5th Circuit, which would hear any appeal in the case, could rule in Landry’s favor, said Mark Tushnet, professor emeritus at Harvard Law, and a former law clerk to Justice Thurgood Marshall.
“It’s not beyond the bounds of possibility.” If that were the case, Tushnet said, “it would have implications for all uses of Title VI in disparate impact cases, not just for the EPA.”
Civil rights advocates have long argued that disparate impact is an important standard, positing that intentional discrimination is much more difficult to prove.
“It would significantly limit our ability to enforce civil rights law,” said Amalea Smirniotopoulos, senior policy counsel at the NAACP Legal Defense Fund. “Disparate impact is a critical tool to make sure we actually live up to the promises of the country.”
Conservatives have previously tried to nullify the disparate impact standard. In its final days, President Donald Trump’s administration attempted to undo disparate impact through agency rulemaking. The proposed rule was never finalized before Trump left office in January 2021.
Before that, former Texas Attorney General Greg Abbott challenged the standard in a housing case over several years, eventually taking the case to the U.S. Supreme Court. The court ruled against Abbott, who by then had been elected Texas governor, in a 5-4 decision in 2015. As with many cases around that time, the court’s liberal and conservative wings were evenly split. Then-Justice Anthony Kennedy, the court’s longtime swing vote, sided with the liberal justices. But the alignment of the nation’s highest court has drastically changed from 2015, including Kennedy’s 2018 retirement. Now, six conservative justices and only three liberals preside over the country’s most important legal cases.
And recent Supreme Court decisions may signal a new opportunity for success for Landry.
“Conservatives have been making these claims about disparate impact being unlawful for decades,” said Joy Milligan, a law professor at the University of Virginia. “Likely, the Louisiana attorney general thinks the federal courts are finally ready to accept these arguments, at least in part,” Milligan added, pointing to the Supreme Court’s recent decision striking down the use of affirmative action in college admissions. “Essentially, the court’s ruling invites more suits like this one.”
Landry’s suit is still early in the process. However, advocates for Title VI say they are keeping a close eye on it. “It depends on how this litigation goes. Whether it goes badly or it goes well, you kind of have to worry about what’s going to happen here,” said Lisa Jordan, director of Tulane’s environmental law clinic, and part of a team representing the community groups from South Louisiana involved in the second civil rights complaint. “Because if it goes badly and the judge invalidates EPA disparate impact regulations and DOJ’s, then not only Louisiana residents, but potentially others will not have that Title VI protection.”
Along with Louisiana and Mississippi, the federal appeals court also has jurisdiction over Texas, the country’s second-most populous state.
However, it may be a long road for this case, which is currently in the Western District Court, where it’s still at an early stage. It could be months or longer before it ends up in a higher court, and Landry’s legal team will first have to clear a potentially major hurdle: the fact that the EPA investigation is closed.
“With the dismissal of those complaints, there is no case or controversy. There is nothing happening to Louisiana,” said Mergen, of the Harvard Environmental Law and Policy Clinic. “You have to have been harmed by the person who you’re suing,” he said, describing what is known as a lack of legal standing.
Another recently decided Supreme Court Case – 303 Creative v. Elenis, in which a website designer won the right to deny same-sex couples of her services – came under heavy scrutiny for a similar issue regarding its legal standing. The plaintiff in the suit, Lorie Smith, is a graphic designer who wanted to expand her business to include wedding announcement websites.
Smith, who opposes same-sex marriage, sued the state of Colorado, arguing that its anti-discrimination law might force her to offer her services to same-sex couples in the future. Her objection to the law, however, was purely hypothetical. Smith had never actually faced any penalties from the state. She was just concerned that she might.
Before it got to the Supreme Court, a federal appeals court determined that Smith had a credible fear that the law would be used against her, and therefore she had standing to sue. In June, the Supreme Court ruled 6-3 in Smith’s favor.
“That’s the kind of logic that Louisiana’s gonna rely on. … They’re gonna say, ‘OK, these complaints are gone, but they could come back and so you need to resolve this,’ ” Mergen said. “There are really good reasons why I think the court should not reach the substance of that case.”
“What should happen does not always happen.”
Khalil Gillon contributed to this report. Verite, a nonprofit news outlet based in New Orleans.
This article originally published in the August 7, 2023 print edition of The Louisiana Weekly newspaper.
