Less than two weeks after the hearing in Louisiana v. EPA, a federal district court granted Louisiana's request to preliminarily enjoin the Environmental Protection Agency (EPA) and the Department of Justice (DOJ) from imposing or enforcing Title VI of the Civil Rights Act ("Title VI") based on disparate impact regulations. Case No. 2:23-CV-00692 (W.D. La. Jan. 23, 2024). The lawsuit stemmed from EPA-led Title VI investigations into Louisiana air permitting decisions alleged to have created disparate adverse impacts on minority residents. EPA sought to require Louisiana to conduct disparate and cumulative impact analyses under federal environmental justice (EJ) policies for its state permitting as a prerequisite to receiving federal funding.
Title VI prohibits discrimination on the basis of race, color, and national origin in programs receiving federal financial assistance. EPA and DOJ take the position that the Title VI discrimination prohibition extends beyond intentional discrimination to also prohibit actions that result in disparate impacts. EPA and DOJ regulations contain disparate impact requirements, but Louisiana argued that these requirements are beyond the agencies' statutory authority under Title VI.
Louisiana filed suit after informal negotiations to resolve the Title VI investigations broke down. Louisiana moved for a preliminary injunction to prevent the agencies from imposing or enforcing disparate-impact-based requirements and from imposing "cumulative-impact" requirements, which EPA posits are a key component of environmental justice (EJ) analyses. Shortly thereafter, EPA administratively closed its Title VI investigations in Louisiana and then moved to dismiss the suit, arguing the closed investigations rendered the state's claims moot. In opposition, Louisiana argued that, regardless of the investigation closures, it still had standing because it remains regulated and continues to incur costs and uncertainties with respect to the agencies' disparate impact regulations and cumulative impact policies.
In its ruling, the court first determined that Louisiana had standing to challenge the disparate impact regulations and cumulative impact requirements. It next held that Louisiana's claims were not moot, finding a real and tangible possibility that EPA will attempt to enforce its mandates again.
The court also found that Louisiana met the pre-requisites for a preliminary injunction against EPA and DOJ imposing or enforcing any disparate impact or cumulative impact-based requirements against it. Namely, it found that (1) Louisiana has a substantial likelihood of success on the merits of its claims; (2) that Louisiana stood to suffer imminent, irreparable injury; and (3) that the injunction would serve the public interest in lawful government actions and in ensuring that the government treat all citizens equally without considering race. With respect to injury, the court found that the disparate impact and cumulative impact requirements created substantial cost increases for the state that it would not be able to recover and that Louisiana is entitled to clarity regarding EPA's power to regulate beyond the text of Title VI. The court stated, "The State must be able to issue permits and accept and maintain grants with advance knowledge and understanding of the scope of its compliance with Title VI."
While it is widely speculated that EPA will appeal the opinion to the U.S. Court of Appeals for the Fifth Circuit and thereafter the Supreme Court, some have called the prudence of such an appeal into doubt, noting that an appellate ruling affirming the lower court could lead to broader ramifications for Title VI disparate impact applicability on a national scale.
The practical result of this decision is that EPA and DOJ are blocked from enforcing Title VI against Louisiana and its state agencies to require disparate impact and cumulative impact analyses in state actions. Importantly, the injunction does not affect the consideration of disparate impacts and cumulative impacts in the context of environmental justice under NEPA in federal permitting. It also does not disturb a recent Louisiana appellate court's finding that the consideration of environmental justice is required in state permitting pursuant to the Louisiana Constitution. Accordingly, permit applicants should remain vigilant in ensuring that a robust EJ analysis is undertaken and well documented in the permitting record.
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