In a setback for environmental justice advocates, the Biden administration has closed a civil rights investigation of two Louisiana state agencies without finding discrimination in how the agencies regulated chemical plants in the area known as “Cancer Alley.”
In their filings, the EPA and lawyers at the Justice Department said they will not take civil rights enforcement action against the agencies, Louisiana’s Department of Health and Department of Environmental Quality. Local environmental activists were disappointed.
“I feel like we were put on the back burner,” said Sharon Lavigne, founder of the local activist group Rise St. James.
The decision is a potential legal setback to the Biden administration’s promise to help poor and minority communities disproportionately subjected to pollution, especially Black neighborhoods in Louisiana. The EPA had been investigating the state in part for its oversight of chemical companies in an industrial corridor along the Mississippi River long plagued by high cancer risks.
But in recent weeks, Louisiana Attorney General Jeff Landry (R), also a gubernatorial candidate, has fought the effort with a federal lawsuit claiming the EPA overstepped its authority. The attorney general has asked federal judges in the Western District of Louisiana to block the investigation of Louisiana, saying the Civil Rights Act of 1964 does not, as the EPA claims, give it the power to take action against policies that discriminate by creating a “disparate impact,” such as heavier pollution in Black neighborhoods compared with others.
The type of legal authority has been rarely invoked but became a key part of the Biden administration’s strategy as it sought to undertake a first-ever effort to address how much more likely minority communities are to be subjected to toxic waste and industrial pollution. In addition to the Louisiana investigation, the effort included civil rights cases against Houston over illegal dumping in Black and Latino neighborhoods and against an Alabama state agency and a county there for neglect and inaction over risks to Black residents from raw sewage.
Federal enforcement under this part of the Civil Rights Act “is a critical component for addressing environmental injustice,” said Patrice Simms, vice president for healthy communities at Earthjustice, which represented two environmental groups in a complaint that led to the EPA’s investigation. “It would be deeply troubling for the EPA to back away from its commitment.”
Officials at Louisiana’s environmental quality and health departments did not immediately respond to requests for comment. Millard Mule, a spokesman for Landry, declined to comment, citing the ongoing litigation.
An EPA spokesman, however, said the agency “remains fully committed to improving environmental conditions” in St. John the Baptist and St. James parishes, where the agency’s probe was focused.
“We look forward to our continued partnership with the residents in both parishes as we continue our joint efforts to improve public health and the environment,” said the EPA’s Tim Carroll.
While President Biden has made big promises on prioritizing environmental protection, his EPA has often been hamstrung by federal courts. The Supreme Court in the past year made major rulings against the agency’s power to protect wetlands and to regulate power plants’ contribution to global warming.
President Donald Trump’s legacy of appointing conservatives throughout lower courts has also left environmental advocates pessimistic about the chances novel legal initiatives have of surviving court challenges. That may have played a role in the EPA’s decision, but it also raises the risk of emboldening Republican-led states to resist Biden administration efforts to enforce civil rights law, Simms said.
The EPA investigation examined whether the state’s health department failed to provide proper assistance to Black residents on how to reduce exposure to pollution from a neoprene facility operated by Denka, a Japanese chemicals firm. And the federal agency was reviewing the state Department of Environmental Quality’s permitting of facilities in St. John the Baptist and St. James parishes, and elsewhere, including a controversial $9.4 billion complex proposed by the Formosa Plastics Group.
In St. James Parish, where Rise St. James seeks to block the Formosa plant, Sharon Lavigne described the federal government’s action as hurtful but said she firmly believes in EPA Administrator Michael Regan.
Regan is the only EPA administrator to have personally traveled to her home and assured her that the agency cares about her community’s health, she said. “That shows me that he cares and he’s working on things for us, and I know he’s not lying.”
Down a highway along the Mississippi River where chemical plants stretch for miles, Robert Taylor of St. John the Baptist Parish had a different perspective. “I would never support the government abandoning their obligation,” said Taylor, founder and executive director of the Concerned Citizens of St. John.
“It will not help the residents here. They know that we are the targets of these industries,” Taylor said, adding that chemical companies and their political supporters “brag that we are the low-hanging fruit. We have the least protection. And now the federal government can’t provide protection.”
The area known as Cancer Alley winds for 85 miles along the Mississippi between New Orleans and Baton Rouge. Black schools and churches frequently sit near petrochemical plants and industrial sites, which are often built on former plantation land and situated to take advantage of access to oil, gas and major ports.
The Denka Performance Elastomer plant, near Fifth Ward Elementary School, emits a hazardous pollutant called chloroprene, which the EPA identifies as “a likely human carcinogen.” The census tract containing the school has an overall cancer rate that is 25 percent higher than the state average, according to the NAACP Legal Defense Fund.
In preliminary findings of its civil rights investigation that the EPA issued last year, it found children at the school and residents nearby were exposed to chloroprene air concentrations at levels high enough to raise their lifetime risk of cancer. But the Louisiana Department of Environmental Quality did not respond to most of the provisions in an agreement to address the EPA’s findings under negotiation between the agencies, and they were not on pace to finalize a deal by a legal deadline coming in July, the EPA said in a letter filed with the court Tuesday.
“Separate and apart” from its civil rights law authorities, the EPA “has taken a series of significant actions directed at or otherwise resulting in reducing the impacts of chloroprene emissions from the Denka facility,” the federal agency wrote in the letter addressed to the Louisiana regulators.
Earlier this year in a separate action, the Justice Department sued Denka to try to compel it to curb emissions of chloroprene. That case is ongoing and expected to continue. A spokesman for Denka said company officials were not yet able to comment on the investigation or the EPA’s decision.
Both Rise St. James and the Concerned Citizens of St. John are scheduled to hold a meeting Tuesday night to consider the way forward. Lavigne said she will place her faith in Regan and continue the fight. Taylor said his group is not done opposing the Denka chemical plant next door.
“We’re going to start our planning all over again,” he said. “We’re not going to give up … The conditions under which the people of Cancer Alley live is not fit for habitation.”