Karen C. Bennett is a partner in the Washington, DC office of E&W Law.

The Environmental Protection Agency’s (EPA) environmental justice movement suffered a major setback when a federal district court determined that the agency has no authority to enforce any cumulative or disparate impact requirements under Title VI of the Civil Rights Act.1  While determining that disparate impact regulations are illegal anywhere in the United States, the court’s August 22, 2024 final judgment in a case decided in January stopped short of vacatur, granting a permanent injunction and enjoining the EPA and the Department of Justice (DOJ) from enforcing the Title VI disparate-impact requirements against any entity in the State of Louisiana.2

EPA had objected to Louisiana’s emissions-permit approvals on the grounds that the emissions would disparately impact environmental justice communities. Louisiana filed suit, challenging EPA’s reliance on Title VI implementing regulations.3  Specifically, EPA relied on regulations at 40 CFR §§ 7.35(b) and (c)4 that bar actions that would have a discriminatory effect.  Louisiana argued that EPA exceeded its statutory authority by injecting a “civil rights” perspective into its consideration of Louisiana’s permitting decision.  The agency has also used allegations of disparate impact to require States to conduct pre-decisional impact screening assessments, including express consideration of race, and to deny permits where a permitting action is likely to have a disparate impact.5

Louisiana argued, and the court agreed, that EPA’s disparate impact regulations require decisionmakers to evaluate the racial outcomes of their policies, and to make decisions based on those racial outcomes, calling into question the lawfulness of EPA’s regulations.  State attorneys general from 23 other States have formally objected to what they consider EPA-instigated discrimination against their own citizens when making race-based decisions rather than relying on environmental factors in reviewing permit applications.  On April 16, those States filed a Petition for Rulemaking that demands EPA amend its regulations to bring them in line with the Civil Rights Act, Title VI, and the Equal Protection Clause.6  EPA seems to ignore the Supreme Court’s determination that Title VI protects against intentional discrimination7 and has so far refused to address the legal uncertainty surrounding the agency’s Part 7 regulations.

Instead, EPA has dug in.  On August 22, 2024, EPA’s Office of External Civil Rights Compliance issued a new guidance, Civil Rights Guidance on Procedural Safeguards:  Requirements and Best Practices. Its scope is broad, covering the full spectrum of non-discrimination laws, but the message is clear—EPA will continue enforcement of the 40 C.F.R. Part 7 regulations nationally with one exception, Louisiana.  In a footnote, EPA explains that pursuant to a preliminary injunction (in place at the time of the issuance of the guidance) issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact analysis requirements under Title VI against the State of Louisiana or its state agencies.8  The guidance is in keeping with the agency’s earlier environmental-justice-related guidance documents that present EPA’s expectations as suggested best practices and not legally binding requirements.

Conclusion

All people should be treated fairly under the law, and the opportunity to meaningfully participate in public processes should be available without discrimination based on race, color or national origin.  The Supreme Court has been consistently clear, however, that Title VI protects against intentional discrimination and does not extend to actions that may have a discriminatory effect.  Other States should utilize Judge Cain’s decision in Louisiana v. EPA to chart a path toward a nationwide vacatur of EPA and DOJ Title VI implementation regulations that go beyond the statute, as suggested by the Supreme Court in Sandoval.9  In the meantime, at least in Louisiana, state regulatory authorities will no longer be pressured by EPA and third parties to address indirect effects of regulatory actions under federal civil rights law.  How those issues and concerns are addressed are rightfully within the purview of the State to decide.

Notes:

  1. U.S. District Court Judge Cain, Judgment pursuant to the ruling in State of Louisiana v. EPA, No. 2:23-cv-00692, W.D. La. Jan. 23, 2024, Aug. 22, 2024.
  2. Specifically, the court enjoined EPA and DOJ from enforcing the Title VI disparate impact requirements in 40 CFR §§ 7.35(b), (c) and 28 CFR § 42.104(b)(2) against any entity in the State of Louisiana or requiring compliance with those requirements as a condition of past, existing, or future awards of financial assistance to any entity in the State of Louisiana, and enforcing against any entity in the State of Louisiana any EPA disparate impact requirement under Title VI or cumulative impact analysis requirement under Title VI that has not been ratified by the President pursuant to 42 U.S.C. § 2000d-1 and is not contained in the EPA regulations implementing Title VI within 40 C.F.R. Part 7.
  3. Louisiana v. United States EPA, No. 2:23-cv-00692, 2024 U.S. Dist. LEXIS 12124, 2024 WL 250798 (W.D. La. Jan. 23, 2024).
  4. 40 C.F.R. § 7.35 (b) A recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, color, national origin, or sex. (c) A recipient shall not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program or activity to which this part applies on the grounds of race, color, or national origin or sex; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of this subpart.
  5. Office of the General Counsel, EPA, EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum (Jan. 2023).
  6. See Petition for Rulemaking from Ashley Moody, State of Florida Attorney General, to EPA Administrator, Michael S. Regan, Apr. 16, 2024.
  7. Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
  8. See EPA Office of External Civil Rights Compliance issued guidance, Civil Rights Guidance on Procedural Safeguards:  Requirements and Best Practices, Aug. 22, 2024, fn. 3, pg. 1.
  9. See Sandoval, 532 U.S. at 282.