This article first appeared on Verite News and is republished here under a Creative Commons license.
Legal experts say a recent decision in a lawsuit over federal efforts to investigate environmental racism in Louisiana could stall civil rights investigations across the country.
Last month, a federal district judge in Lake Charles temporarily barred the Environmental Protection Agency and the Department of Justice from enforcing the Civil Rights Act using the “disparate impact” standard, which forbids discrimination based on race, even if the discrimination isn’t intentional.
The preliminary injunction is part of a lawsuit filed by Gov. Jeff Landry last year, when he was the state attorney general, against the EPA and DOJ over their use of the disparate impact standard, under Title VI of Civil Rights Act.
The EPA and DOJ had opened an investigation after finding evidence suggesting that inaction by Louisiana regulators unfairly burdened Black communities along Cancer Alley, the state’s 85-mile industrial corridor where pollution has been linked to a cancer risk as high as 47 times the national average. However, the investigation was abruptly dropped after Landry filed suit.
Though the injunction currently only applies in Louisiana, legal experts say it could stymie federal response to racial discrimination complaints across the country, with other conservative district courts looking to Louisiana’s arguments as a so-called “horizontal precedent.”
Legal scholars are worried that if the case were to reach the U.S. Court of Appeals for the 5th Circuit, known as the most conservative federal appeals court in the country, it would rule in favor of the state. And if the case makes it to the Supreme Court, its conservative majority could restrict Title VI and further limit racial discrimination protections.
The federal government has used the disparate impact standard to make sure federal funds aren’t being used to unintentionally discriminate, particularly in situations where past discrimination makes that more likely. Proving intentional discrimination, say civil rights advocates, is also a much higher bar.
“You don't want to serve Title VI on a platter to the 5th Circuit,” said Hannah Perls, senior staff attorney with the Harvard Environmental & Energy Law Program.
‘It will certainly have a chilling effect’
Experts are keeping an eye out for other Title VI cases that may be stalled.
Perls predicts that state agencies may feel empowered to push back against federal Title VI enforcement, particularly in states with conservative-leaning courts. . She suspects this may have happened even before the injunction came down, in Texas, where the EPA closed a Title VI investigation into alleged environmental racism in Harris County last month.
“It will certainly have a chilling effect,” Perls said of the state’s ongoing lawsuit.
Experts told The Interceptthat they are concerned about the effect of Landry’s lawsuit on current environmental justice cases in Tennessee, Mississippi, North Carolina and Missouri as well.
Although the disparate impact standard is not the only tool available to federal agencies for tackling discrimination, undoing it would raise the bar for proving such discrimination, and addressing environmental racism in particular would become even tougher.
The EPA has a history of being slow to respond to Title VI complaints, as one court ruled in 2018. But in 2021, the Biden administration announced a focus on environmental justice led by the agency’s office of Environmental Justice and External Civil Rights, promising a new era of addressing longstanding complaints from communities of color, with the DOJ also pursuing environmental justice cases in Alabama and Houston in recent years.
In its Cancer Alley investigation, the EPA pointed to the history of the River Parishes, where many Black families have lived since slavery, and where large swaths of land that were formerly plantations are now thriving petrochemical facilities.
Taking context into account, legal experts say, is an important part of the use of the disparate impact standard in Title VI.
“I want to be quite clear about this. I don't think that we move towards racial justice by ignoring race,” said Andrew Mergen, director of Harvard’s Environmental Law and Policy Clinic, who previously worked in the DOJ’s Environment & Natural Resources Division. “There's some original sin. It's called slavery. And it takes a long time to move past that and to bring people where they need to be.”
The disparate impact standard has been applied in housing and employment cases for decades, such as in a 2007 case where Black and Hispanic men were being shut out of employment with the New York City Fire Department. In 2015, the Supreme Court also upheld the disparate impact standard in a fair housing case in Texas.
Federal civil rights protections passed by Congress in the 1960s included statutes for fair housing, voting protections and employment. But there is no specific protection for environmental discrimination, said Joy Milligan, professor of law at University of Virginia and former attorney at NAACP Legal Defense Fund.
“We kind of have just a patchwork of civil rights statutes. It's not complete coverage by any means. And that's why Title VI is so important,” Milligan said.
However, throughout Louisiana’s case against the EPA and DOJ, attorneys for the state have maintained that using disparate impact standards “effectively compel the State to discriminate on the basis of race.”
“We are a colorblind state,” said Joseph Scott St. John, deputy solicitor general for the Attorney General’s office, at a January court hearing in the case. “We don't want to consider race. We don't think Title VI requires us to consider race.”
Judge James Cain Jr., a Trump appointee, was clear about agreeing with Louisiana’s argument. “Pollution doesn't really discriminate based on race. It pollutes whoever's, you know, there,” Cainsaid during that hearing.
Cain’s recent decision could also influence judicial decisions across the country, said Milligan. Though the decision is not binding in other federal courts, it could be used as a kind of “horizontal precedent,” Milligan said, meaning that lawyers and judges in other federal courts may use his logic in other Title VI cases.
Conservatives have previously tried to dismantle the disparate impact standard, such as in 2021,, when the Trump administration attempted to undo the standard in its final days, although the proposed rule was never finalized.
“For conservative lawyers and conservative judges, it is likely to provide a kind of mental fodder and possibly inspiration, right?” Milligan said.