Amy Laura Cahn
On October 12, 2022, U.S. Environmental Protection Agency (EPA) issued a “Letter of Concern” to the Louisiana Departments of Environmental Quality (LDEQ) and Health (LDH) indicating that EPA was close to making findings of discrimination in the permitting of industrial facilities along Cancer Alley–one of the worst ongoing examples of environmental racism in the nation. This was one of the EPA’s boldest ever steps toward enforcing Title VI of the Civil Rights Act of 1964 (Title VI).
Within months, the agency faced litigation that now threatens to eliminate core civil rights protections nationwide. On August 22, 2024, Judge James D. Cain, Jr. of the Western District of Louisiana permanently enjoined EPA and the Department of Justice (DOJ) from enforcing their respective disparate impact regulations against any entity in the state of Louisiana. Black and Brown Louisianans are now living in a legal sacrifice zone, while the state pursues a nationwide vacatur of the rules.
Throughout oral argument and in his subsequent opinions, Judge Cain repeated the phrase “pollution does not discriminate.” In conversation with NPR, Robert Taylor from Concerned Citizens of St. John responded: “Of course pollution doesn’t discriminate. Judges discriminate. The petrochemical industries discriminate. They are the polluters. That’s who my fight is against.”
Title VI remains an unfulfilled promise for fenceline and frontline communities.
Ten years ago, Professor Olatunde Johnson at Columbia Law School wrote, “each anniversary of Title VI provokes the concern that the full power of the statute has gone untapped.” Congress intended Title VI to not simply eradicate the most obvious and intentional discrimination, but the facially neutral policies and practices that cause and perpetuate the harms of structural racism. In that spirit, Title VI could be one of the most salient legal tools to remedy the discriminatory housing, infrastructure, transportation, and land use decisions that have shaped access to clean air, water, soil, and now protection from extreme weather. Title VI also fills gaps in environmental enforcement that routinely fail to account for the cumulative and disparate impacts of multiple pollutants from clustered facilities on individual bodies and whole communities. Thus, Title VI has potential to advance the multi-dimensional aspects of procedural, distributive, recognitional, and reparative justice that make up the larger environmental justice vision.
Yet, as the Civil Rights Act of 1964 celebrates its sixtieth anniversary, Title VI remains an unfulfilled promise for fenceline and frontline communities, even as communities leverage Title VI as a law and organizing tool. Environmental justice advocates saw early, limited legal victories and notable enforcement actions by the U.S. Departments of Housing and Urban Development and Transportation. However, the U.S. Supreme Court’s 2001 decision in Alexander v. Sandoval eliminated plaintiffs’ ability to seek redress from the courts unless they could prove intentional discrimination, requiring communities to rely on federal agencies like EPA to enforce their disparate impact regulations. EPA in particular has persistently failed to hold federal funding recipients accountable to their civil rights obligations. For decades, civil rights complaints languished at an EPA found to be “chronically unresponsive” by the Center for Public Integrity. Even when EPA investigated complaints, the agency routinely declined to make formal findings of discrimination, while complainants remained sidelined from the informal resolution process. And a recently rescinded 1998 EPA decision determined that meeting environmental emissions standards created a presumption of civil rights compliance, enabling a persistent culture of noncompliance.
Recent gains under the Biden Administration
Sustained grassroots advocacy pushed the Biden Administration to make unprecedented government-wide commitments to enforcing civil rights and advancing environmental justice. The administration has since made critical policy changes, including merging and elevating EPA’s environmental justice and civil rights offices; increasing agency budgets and staff for civil rights enforcement; publishing a transparent, searchable database of EPA’s civil rights docket; releasing procedural guidance; and launching affirmative compliance initiatives paired with training for federal funding recipients. And in April 2023, President Biden issued Executive Order 14096, updating the Clinton environmental justice order with explicit language on Title VI and a mandate—that federal agencies “advance environmental justice for all by implementing and enforcing the Nation’s environmental and civil rights laws.”
Since 2021, community members and advocacy groups have filed an unprecedented number of Title VI complaints with federal agencies. EPA accepted many for investigation, including Louisiana complaints from two communities.
EPA’s enforcement actions in Louisiana
EPA’s Letter of Concern responded to three civil rights complaints. Two complaints were filed by Concerned Citizens of St. John and the Sierra Club representing St. John the Baptist Parish residents. Black residents in St. John the Baptist face some of the highest cancer risk from toxic air pollution in the country. Children attend elementary school steps from Denka Performance Elastomer, the nation’s only synthetic rubber neoprene facility, which emits cancer-causing chloroprene at levels 8,000 times higher than EPA’s acceptable level.
A third complaint came from Stop the Wallace Grain Terminal, Inclusive Louisiana, RISE St. James, and the Louisiana Bucket Brigade in St. James Parish. In St. James, more than 80% of the parish’s industrial plants are located in majority-Black districts and residents are fighting a $9.4 billion Formosa petrochemical complex proposed for the St. James census tract with the highest percentage of Black residents and one mile from the nearest neighborhood and a majority Black elementary school.
EPA’s Letter of Concern outlined “significant evidence” suggesting that Louisiana’s regulatory actions or inactions over many years “resulted and continue to result in disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor[.]” The letter detailed systemic failures by both agencies who had, as summarized by ProPublica: “dismissed residents’ concerns about air quality, underplayed the dangers of chloroprene [emitted by Denka specifically], conducted flawed health studies and mischaracterized air monitoring data.”
The letter outlined the “substantially disproportionate” cancer risk borne by Black residents living nearest to sources of harmful emissions. EPA found a possible “causal link” between both LDEQ’s air permitting program and LDH’s administration of its public health mission and “the adverse and disproportionate distribution of the cancer and toxicity risks” for Black residents. EPA also found these risks were exacerbated by the fact that residents have lived near polluting facilities for decades and “homes have been occupied by members of the same families for several generations.” Central to EPA’s message was that its funding recipients have civil rights obligations above and apart from compliance with environmental statutes.
In the words of Monique Harden, former Director of Law and Policy at the Deep South Center for Environmental Justice, EPA was “for the first time in a long time . . . speaking the truth around environmental racism and willing to put civil rights enforcement tools out there.”
Louisiana v. EPA
On May 22, 2023, then-Louisiana Attorney General and now Governor Jeff Landry filed suit against EPA and DOJ. The complaint portrayed EPA as “social justice warriors fixated on race” set on “impos[ing] additional mandates based purely on the racial composition of the relevant groups” or “where they lie on EPA’s intersectional pyramid.”
At the heart of the complaint was Louisiana’s broad assault on civil rights designed to protect polluters’ profits over people. Louisiana sought the vacatur of EPA’s and DOJ’s decades-old disparate impact regulations, promulgated in 1973 and 1966, respectively. The state challenged EPA’s implementation of its regulations as exceeding the agency’s Title VI authority, violating the Administrative Procedure Act and triggering the Major Questions doctrine. Louisiana argued that mandates imposed—through an informal resolution process–exceeded the state’s obligations under what the state views as a “race-neutral standard of environmental protection.” Remedying documented environmental and health disparities and the marginalization of Black residents from public process, the state argued, compelled the state to intentionally discriminate against its white residents in violation of Title VI, while guidance to incorporate cumulative impacts analysis into permitting was attacked as “extra-regulatory” and “unratified.”
While DOJ had played no role in the investigation or resolution of the Louisiana complaints, the state argued DOJ could enforce its disparate impact regulations against Louisiana at any time. In support of the court reopening DOJ’s 1966 regulation, the state cited a 2020 proposed-Trump era DOJ rule that would have deleted disparate impact language, but that the Trump DOJ declined to finalize and the Biden Administration withdrew.
After the suit was filed, EPA swiftly closed all three Louisiana complaints, which has since chilled Title VI enforcement by EPA elsewhere in the country but had little impact on the district court’s decisions.
Early in 2024, Judge Cain issued a preliminary injunction against both EPA and DOJ, blocking them from enforcing their disparate impact regulations against the state of Louisiana or any Louisiana state agency. He granted the state standing “to challenge the EPA’s disparate impact mandates and extra-regulatory requirements (cumulative impact)” and found that they triggered the Major Questions doctrine. The court also found the Trump-era draft Title VI rule sufficient to reopen DOJ’s disparate impact regulation, and granted standing to Louisiana against DOJ.
On August 22, 2024, Judge Cain issued a permanent injunction against both EPA and DOJ. He limited the injunction to the State of Louisiana but expanded its reach to any entity receiving federal funds—including municipalities and private businesses. And he stated unequivocally that he “agrees that the unlawful disparate-impact regulations are illegal anywhere in the United States.” Such language invites copycat suits by funding recipients across the country who decline to comply with their Title VI obligations–cases that will likely extend beyond the environmental context.
Louisiana is not content to keep it to Louisiana. On September 19, 2024, Louisiana filed a Motion to Amend the Judgment requesting that the court vacate EPA’s and DOJ’s disparate impact regulations “without any geographic limitations.” The State argued it will “suffer a competitive dis-advantage in obtaining grants from DOJ and EPA” because “[a]bsent a vacatur” funding recipients in the other 49 states must still fully comply with civil rights obligations to which Louisiana is no longer bound.
A coordinated attack on Title VI
Louisiana is not alone in its quest to eviscerate EPA’s and likely other agencies’ regulations enforcing civil rights laws. On April 16, 2024, even before Judge Cain ruled in the Louisiana case, Florida Attorney General Ashley Moody filed a petition for rulemaking on behalf of a 23-state confederation requesting EPA rescind the disparate impact provisions of its Title VI regulations.
When the petition was filed, a civil rights complaint against Florida’s Department of Environmental Protection had languished for over two years. The complaint was filed by a grassroots advocacy group working on behalf of residents living adjacent to an incinerator known as the Miami-Dade Resources Recovery Facility that later burned down in a three-week fire, as well as the com-munities of color surrounding Florida’s nine other incinerators. For the Doral neighborhood surrounding the Miami-Dade incinerator, Title VI was their only recourse to address the odors and health impacts that led one resident to call the area “the worst city in the U.S. to live.”
Florida’s petition makes explicit a constitutional objection implied in the Louisiana complaint and Judge Cain’s decisions—that EPA’s Title VI regulations “compel the imposition of quotas,” and “any recipient choosing an alternative course of action to avoid a racial disparity would be taking action on the basis of race,” contrary to the Equal Protection Clause. The petition analogizes disparate impact doctrine to the “fatal flaws that doomed the affirmative action policies” in the recent U.S. Supreme Court decision, Students for Fair Admissions v. Harvard College.
The petition is characterized as a counter to President Biden’s “radical exploitation of Title VI” and labels environmental justice a practice of “racial engineering.” Its authors are the same attorneys general engaged in what the New York Times has called “a coordinated, multiyear strategy . . . to use the judicial system to rewrite environmental law weakening the executive branch’s ability to tackle global warming.” This includes the recent West Virginia v. EPA decision limiting EPA’s options for regulating greenhouse gas emissions—and laying groundwork for Louisiana’s Major Questions doctrine challenge to disparate impact. These state actors work in partnership “with conservative legal activists and their funders, several with ties to the oil and coal industries.”
This Venn Diagram of conservative interest groups has a detailed plan to beat back progress on environmental justice and the climate crisis, while eviscerating decades-old civil rights protections. The Project 2025 Presidential Transition Project playbook developed by the Heritage Foundation and its partners supercharges the goals of both the Louisiana litigation and the petition for rulemaking. Along with massive rollbacks of environmental and climate regulation and funding that will disproportionately impact frontline and fenceline communities, Project 2025 proposes to eliminate EPA’s newly created Office of Environmental Justice and External Civil Rights and “pause and review all ongoing EJ and Title VI actions to ensure that they are consistent with” Students for Fair Admissions and anticipated SCOTUS decisions curtailing remedial efforts to address structural racism.
Project 2025’s directive to DOJ is more starkly worded—“prepare a plan to end immediately any policies, investigations, or cases that run contrary to law or Administration policies.” And Project 2025 places a target on the disparate impact regulations—calling to “[e]liminate disparate impact as a valid theory of discrimination” in the education, employment, and housing contexts and across the federal government. The breadth and intensity of threats to these core civil rights protections will escalate under a Trump Administration.
We must resist these revisionist narratives of discrimination—in the courts, in the media, and in everyday conversations.
The right’s legal and rhetorical arguments against disparate impact rely on an inversion of victimhood consistent with fights to undermine a vast array of fundamental rights—corrupting our perceptions of perpetrator and harmed, claiming victimhood for the state and for industry, and eras-ing the people and communities entitled to legal protection.
Students for Fair Admissions and related lower court cases have cast a pall on efforts to remedy the impacts of structural racism, even through voluntary diversity, equity, and inclusion programs. We risk unnecessary and unjustified rollbacks, not simply in the public sector, but from risk-averse educational, corporate, philanthropic, and nonprofit organizations that were vocal about undoing racism five years ago. This chiseling away at permissible affirmative remedial actions makes the need for Title VI protections even greater. We cannot allow the further stratification of rights and the creation of more legal sacrifice zones.
“[O]ngoing state hostility to Title VI requires decisive action, not retreat.” That was the message from a coalition of advocates led by Louisiana and Michigan Title VI complainants after EPA’s sudden closure of the Louisiana complaints. We need a federal government who will defend its longstanding power to enforce bedrock civil rights laws. While we defend disparate impact, we need cases that demonstrate to courts and elected officials how intentional discrimination or disparate treatment functions in 2025, with EPA, DOJ, and other agencies dedicating resources to pursue these claims.
We need states willing to be vocal in this fight. We need leadership consistent with the recent response filed by sixteen attorneys general rebutting the Republican states’ petition for rulemaking and affirming that “EPA’s regulations implementing Title VI are a critical tool for the federal government to ensure that the billions of dollars in federal funds received by state, local, and private sector actors across the country do not perpetuate a long history of racial discrimination.” We also need states like Illinois and Michigan, who have recently resolved federal and state civil rights complaints with substantive commitments to address cumulative impacts in permitting.
We must come together to reaffirm and reinforce civil rights and environmental justice for all.
In drafting the federal Environmental Justice for All Act, Representatives Raúl M. Grijalva of Arizona and A. Donald McEachin of Virginia led a participatory process with fenceline and frontline communities that generated two critical priorities: (1) amending environmental statutes to consider the totality of public health or environmental risk, i.e., cumulative impacts, on health, well-being, and quality of life and (2) restoring the rights of individuals and communities to seek redress from the courts when a program, policy, or practice has a discriminatory effect.
Several states including New Jersey, New York, Colorado, Minnesota, and North Carolina have passed legislation intended to protect fenceline and frontline communities from the on-the-ground realities of disproportionate cumulative burdens. California and Illinois have state Title VI analogues with protections against disparate impact discrimination, and a diverse coalition of environmental justice, education, housing, healthcare, LGBTQIA, and prisoner rights advocates have collaborated on a similar Access to Justice bill for Massachusetts. We need to build on this momentum to pass legislation that provides tools to remedy the root causes of racial disparities at the local, state, and federal levels and safeguard civil rights protections for the long term.
Interrupting the cycle of generational harm caused by the proliferation of industry in Cancer Alley is not discriminatory; it is an act of repair consistent with the policy goals driving Congress’s passage of Title VI and the broader Civil Rights Act. Who is harmed by ensuring holistic environmental analysis that accounts for decades of toxic exposure? Who is harmed by public health officials taking seriously the concerns of Black residents whose children attend school 1500 feet from severe and ongoing emissions of carcinogenic toxins? Who is harmed by agencies investigating why majority Black communities continue to face substantially greater cancer risk from toxic air pollution than white communities? Ensuring the right to clean air, water, soil, and a safe and healthy home for all is not a zero-sum game – it’s a win-win.
We must recognize that the current backlash to Title VI and broader civil rights enforcement is a direct response to the advancements our grassroots movements have already gained—and persist. We are witnessing a coordinated multi-pronged attack on the legal, policy, social, cultural, and educational tools we use to address the legacy harms of systemic racism. Our efforts must be just as coordinated. We must draw the necessary connections between attacks on Title VI and fights for reproductive justice, LGBTQIA rights, and voting rights originating in these very same states. Our visions and our strategies must bring together advocates, attorneys, scientists, educators, artists, and students working at the intersection of housing, transportation, education, environmental, climate, and disaster justice and civil rights. Our legal and policy efforts must be at the service of a larger organizing strategy. And fenceline and frontline community leadership must remain at the center.
Amy Laura Cahn is a climate and environmental justice lawyer and a lecturer at the University of Pennsylvania Carey Law School and Tufts University. She was a convener of the national Title VI Alliance from 2021 to 2024.
References:
Olatunde C. Johnson, Lawyering That Has No Name: Title VI and the Meaning of Private Enforcement, 66 STAN. L. REV. 1293 (2014).
Halle Parker, Residents of Cancer Alley have fewer protections against environmental discrimination, NPR (Oct. 10, 2024).
Antonia Juhasz, “We’re Dying Here” The Fight for Life in a Louisiana Fossil Fuel Sacrifice Zone, Human Rights Watch (Jan. 25, 2024).
Lylla Younes, Black residents in Cancer Alley try what may be a last legal defense to curb toxic pollution, Grist (Oct. 10, 2024).
Lisa Song and Lylla Younes, EPA Calls Out Environmental Racism in Louisiana’s Cancer Alley, ProPublica and Grist (Oct. 19, 2022).
Coral Davenport, Republican Drive to Tilt Courts Against Climate Action Reaches a Crucial Moment, NY Times (June 19, 2022).
Alexander v. Sandoval, 532 US 275 (2001).
West Virginia v. EPA, 597 U.S. 697 (2022).
Students for Fair Admissions v. Harvard College, 600 U.S. 181 (2022).
Compl., Louisiana v. EPA, No. 2:23-cv-692 (W.D. La. May 22, 2023).
Louisiana v. EPA, No. 2:23-cv-692, 2024 WL 250798 (W.D. La. Jan. 23, 2024).
Louisiana v. EPA, No. 2:23-cv-692, __WL __ (W.D. La. Aug. 22, 2024).
Memo. in Supp. of Rule 59(E) Mot. to Am. the Judg., No. 2:23-cv-692 (W.D. La. Sept. 19, 2024).
Letter from Lilian S. Dorka, EPA Deputy Assistant Administrator for External Civil Rights to Louisiana Departments of Environmental Quality and Health (October 12, 2022).
Letter from Civil Rights Complainants et al. to Jeffrey M. Prieto, General Counsel et al. re termination of Louisiana complaints and inadequate resolution of Michigan Complaint (October 16, 2023).
Letter from Florida Attorney General Ashley Moody to Administrator Michael S. Regan re Petition for Rulemaking (Apr. 16, 2024).
Letter from Environmental Justice and Civil Rights Advocates to Administrator Michael S. Regan re response to petition for rulemaking to rescind EPA’s Title VI disparate impact regulations (September 4, 2024).
Letter from New York Attorney General Letitia James et al. to Administrator Michael S. Regan re Petition for Rulemaking Filed by the State of Florida and 22 Other States regarding EPA’s Discriminatory Effect Regulations (September 5, 2024).
Mandate for Leadership Project 2025 Presidential Transition Project, The Heritage Foundation (2023).
S.919, A. Donald McEachin Environmental Justice For All Act, 118th Congress (2023-2024).
