By: Taylor Farmer
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock
Five years after Congress passed the Civil Rights Act, Denka Performance Elastomer opened for business in a small Louisiana parish on the banks of the Mississippi River. Victoria St. Martin, EPA Opens Civil Rights Investigation Into Louisiana’s ‘Cancer Alley’. Inside Climate News (April 25, 2022), https://insideclimatenews.org/news/25042022/epa-louisiana-cancer-alley/. Denka employs more than 200 people making synthetic rubber for wetsuits and shoes. Id. For residents of St. John the Baptist parish – an area long poor and desperate for jobs – the prospect of reliable employment was welcomed. Della Hasselle & Nick Reimann, Despite chemical exposure warnings, many St. John residents decide to stay, fight Denka in Court. Nola.com (Feb. 9, 2019).
Mary Hampton, in her eighties, still lives in St. John. St. Martin, supra. Many years ago, her father – looking for the sort of opportunity that plants like Denka provided – bought land in the parish in hopes of providing each of his nine children with property, stability, and success. Id.
But Mary’s family hasn’t prospered. Instead, her family has suffered. She has lost two sisters, a brother, a daughter-in-law, a son-in-law, and even her father. Id. Each died from cancer. Id.
Unfortunately, the story of Mary and her family is not unique. St. John is just one of many parishes located in what has become known as “Cancer Alley,” a stretch of land in the heart of Louisiana boasting more than 200 pollution-emitting industrial facilities like Denka. Id. Here, residents face the highest risk of cancer caused by air pollutants in the entire country – estimates put the risk of cancer at 47 times the national average. Id. Many residents are Black. Hasselle & Reimann, supra. Many residents cannot afford to leave. Id. Many residents now find themselves on the frontlines of the battle over environmental justice and federal anti-discrimination law, whether they want to be there or not.
In 1964, Congress passed the Civil Rights Act. 42 U.S.C. § 2000d (1964). Title VI of the Act directs federal agencies to, in a nutshell, promulgate their own rules prohibiting discrimination among beneficiaries of agency funding. Id. What’s controversial about Title VI is exactly what type of discrimination agencies have permission to prohibit. It’s uncontested that federal agencies can target intentional discrimination, and in fact, the statute explicitly directs agencies to do so. Id. However, Title VI is silent on whether agencies may also prohibit disparate impact discrimination – discriminatory behaviors that appear neutral on their face, but disproportionately impact people of color when put into practice. Id.
The Environmental Protection Agency has long used Title VI disparate impact regulations to promote environmental justice. James Beers et al., Louisiana v. EPA: A Turning Point for Title VI and Environmental Justice? JDSupra (February 12, 2024), https://www.jdsupra.com/legalnews/louisiana-v-epa-a-turning-point-for-4033769/. EPA realized that industrial facilities were more likely to be located in poor Black communities, resulting in disproportionately adverse health effects for the people living there, and tried to address the problem by promulgating rules prohibiting disparate impact discrimination. Id. In theory, if a state forced Black communities to take the brunt of these adverse health effects, the EPA could enforce the rules and pull state funding for any such violations. Yvette Cabrera et al., EPA promised to address environmental racism. Then states pushed back. The Center for Public Integrity (October 25, 2023), https://publicintegrity.org/environment/pollution/environmental-justice-denied/environmental-justice-epa-civil-rights-story/. This method was ideal because the other avenue of addressing the problem – proving intentional racial discrimination under Title VI – is prohibitively difficult.
Unfortunately for the EPA, this method has not been successful. Private lawsuits were one of the primary methods of enforcing EPA’s disparate impact rules, and the Supreme Court struck that method down more than 20 years ago. James Beers et al., supra. Beyond that, language in the opinion sent many the message that the Court was not fond of federal agencies using Title VI to target disparate impact discrimination in any capacity. Id. Because Congress did not explicitly allow it, many Justices are doubtful that agencies have any authority to prohibit disparate impact at all. Michael Phillis, EPA drops environmental justice investigations in Louisiana. PBS News Hour (Jun. 28, 2023 11:29 AM EST), https://www.pbs.org/newshour/nation/epa-drops-environmental-justice-investigations-in-louisiana.
In recent years, Denka and St. John have become the primary battleground over whether Title VI is a viable method for addressing environmental injustice. EPA opened an investigation into the state of Louisiana, alleging that Denka’s emissions put the historically Black community of St. John at impermissible risk. Id. Louisiana responded by suing the EPA. James Beers et al., supra. Louisiana argued that the disparate impact regulations employed by the agency “exceed statutory authority and are illegal,” a position seemingly shared by the majority of Supreme Court Justices. Id.
EPA dropped the investigation in the summer of 2023, but Louisiana has not dropped their lawsuit – why would they? Phillis, supra. In January 2024, a federal judge ruled in the state’s favor, issuing a temporary injunction against EPA’s ability to enforce their disparate impact rules. James Beers et al., supra.
For states like Louisiana, the battle isn’t over. Louisiana’s injunction is only temporary, and the lawsuit hasn’t settled on the merits. Id. If the states want freedom from EPA supervision – more opportunity to entice industry, create jobs, and boost their economies – they’ve got one victory under their belts, but have a long way to go.
For communities like St. John, the future is bleak. Mary Hampton, who has seen so many of her loved ones pass to cancer and lives with an exceedingly high risk of developing the disease herself, is at a loss. “We can’t move to go anywhere else,” she says, but “we can’t live like this.” St. Martin, supra. For Mary and those like her, there is nothing left to do but keep fighting.