In a letter dated April 16, 2024, the attorneys general (AGs) of 23 states, led by the state of Florida, demand that the EPA “amend its regulations under Title VI of the Civil Rights Act of 1964 to bring them in line with the text of that statute and with the Equal Protection Clause of the U.S. Constitution.”

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This clause is defined to mean that a governing body must treat each individual the same as others in similar circumstances and conditions.

According to the AGs, race shouldn’t be a factor in regulating pollution.

“Title VI prohibits, among other things, racial discrimination by entities that receive federal funding. ... For many years, the EPA's Title VI regulations have gone beyond prohibiting racial discrimination to impose so-called ‘disparate impact’ requirements. ... As many scholars have recognized, these requirements actually promote—rather than prevent—discrimination based on race. For years, however, the federal government has not meaningfully enforced these regulations.”

Once the Biden administration took office, all that changed, the AGs’ letter states.

Disparate impact is defined as a rule or policy that has the effect of adversely impacting a legally protected group of people.

“One of the core goals of [environmental justice (EJ)] is to ensure ‘a proportional environmental result’ — in other words, ‘a condition in which no racially or economically defined group disproportionately experiences adverse environmental impacts,’” the letter states. “In practice, [EJ] asks the States to engage in racial engineering in deciding whether to, for example, issue environmental permits, rather than relying on the effect on the environment and other appropriate factors.”

The letter uses similar legal arguments to those the U.S. Supreme Court (SCOTUS) used when it struck down affirmative action.

Background

The civil rights movement of the 1960s launched an awareness of the need for EJ, as more people became aware of how many minority communities were located near industrial facilities.

“In response, President Clinton signed the landmark Executive Order (EO) No. 12898 and instructed federal agencies to identify and address the disproportionately high and adverse human health and environmental effects of their actions on minority and low-income populations,” according to a Troutman Pepper Environmental Law and Policy Monitor blog post. “Among the legal tools federal agencies could employ to combat environmental injustice was Title VI of the Civil Rights Act. However, in practice it has been difficult to use Title VI to address environmental injustice because of the need to prove purposeful acts of discrimination. Additionally, in 2001, the Supreme Court’s decision in Alexander v. Sandoval found that there was no private cause of action to enforce disparate-impact regulations under Title VI.”

The Biden administration has taken action to revise the methods used to apply Title VI to EJ.

On September 23, 2023, “as part of President Biden’s National Strategy to Counter Antisemitism, eight federal agencies clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities,” notes a White House Fact Sheet. “These wide-ranging protections provide important tools to curb discrimination based on shared ancestry or ethnic characteristics and to better protect the civil rights of all Americans.”

For the EPA, this has translated into a policy that prohibits EPA-funded agencies from taking actions, including permitting actions, that are intentionally discriminatory or have a discriminatory effect based on race, color, or national origin.

Louisiana v. EPA

On October 12, 2022, the EPA Office of Environmental Justice and External Civil Rights sent notice to the Louisiana Departments of Environmental Quality (LDEQ) and Health (LDH) that, due to alleged “actions or inactions,” the EPA would be investigating claims of environmental racism on behalf of “Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.”

Specifically, the Title VI complaints against the LDEQ alleged that the local agency’s air permitting of the Denka chemical and Formosa plastics plants was discriminatory.

In response, the State of Louisiana filed a legal complaint against the EPA and the Department of Justice (DOJ). Louisiana alleged that the EPA’s and DOJ’s Title VI disparate impact regulations are illegal and exceed the agencies’ statutory authority.

In June 2023, Louisiana moved for a preliminary injunction to prevent the EPA and DOJ, during the pendency of the lawsuit, from enforcing the disparate impact regulations and requiring compliance with extra-regulatory requirements by any Louisiana agency. Shortly after that filing, the EPA announced it had resolved both Title VI complaints and closed its investigations. The EPA didn’t make a finding of discrimination by the LDEQ or the LDH.

On January 23, 2024, in the U.S. District Court for the Western District of Louisiana, Judge James Cain’s ruling in Louisiana v. EPA issued a preliminary injunction barring the EPA and the DOJ from:

• “Imposing or enforcing any disparate impact-based requirements against the State of Louisiana or any State agency under Title VI, and
• Imposing or enforcing any Title VI based requirements upon the State of Louisiana or any State agency under Title VI, that are not both:
• Ratified by the President, as required by 42 U.S.C. § 2000d-1, and
• Based upon requirements found within the four corners of EPA’s disparate impact regulations, 40 C. F. R. § 7.35(b),(c).”

According to the court’s Memorandum Ruling, Louisiana contended that the EPA has no authority to impose these disparate impact-based mandates under Title VI because Title VI has no such disparate impact language. The court concluded that the main questions here are whether Title VI disparate impact regulations are lawful and whether the executive’s limited authority under Section 602 of Title VI extends to imposing disparate impact-based liability.

The ruling recognized Louisiana’s standing to challenge the disparate impact regulations and cumulative impact requirements. The court also found Louisiana’s claims weren’t moot because the “the evidence makes clear that the EPA intends to promote and enforce its disparate impact and cumulative impact conditions with regard to grants and permits … [and] it is absolutely clear to this Court that the alleged wrongful behavior could reasonably be expected to recur in the not-to-distant future and/or is already occurring in this State as well as across this nation.”

“The court concluded that EPA and DOJ Title VI disparate-impact regulations are likely unlawful since they have not been explicitly authorized by the Civil Rights Act,” Troutman Pepper continues. “The court also invoked the major questions doctrine, which requires explicit congressional authorization to regulate questions of major significance. Finally, the court concluded that these requirements likely violate the U.S. Constitution and are made without any authority or any colorable basis for authority [ultra vires].”

With this finding, the court made clear that the current administration’s efforts to use Title VI to advance EJ are unlikely to pass judicial scrutiny. Also, by evoking the major questions doctrine, it was a clear warning to the EPA and DOJ that the pursuit of enforcing Title VI disparate impact regulations and the imposition of extra-regulatory requirements will likely end up before a fickle 5th Circuit Court, backed by the current conservative majority-led SCOTUS.

The AGs petition letter cites the Louisiana v. EPA case as one of the reasons the EPA should amend the regulation:

“Specifically, the Court found that EPA has ‘constructed Title VI to allow it to regulate beyond the Statute’s plain text and by doing [so], invade the purview of the State’s domain.’”

Proposed change

Currently, Section 7.35 of Title 40 of the Code of Federal Regulations (CFR) states:
“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.”

The AGs propose to amend the regulation to state:
“A recipient shall not choose a site or a location of a facility that has the purpose 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 of defeating or substantially impairing the accomplishment of the objectives of this subpart.”

Their reasoning concludes:

• Title VI doesn’t authorize regulations that prohibit conduct based on disparate impact alone.
• The current regulations create constitutional problems for states because they compel states to take actions that violate the Equal Protection Clause.

In conclusion, the AGs petition letter states:
“Disparate impact theory does just the opposite: ‘it forces us to look at race—to check for racial imbalance and then decide what steps must be taken to advance some people at the expense of others based on their race. … By imposing disparate impact liability where it is not called for by statute, the EPA's regulations gravely depart from the original understanding of Title VI and compel States to unconstitutionally discriminate against their citizens by incorporating disparate-impact liability. EPA should grant this Petition and revise its Title VI regulations to be consistent with Title VI and the Equal Protection Clause.”

Environmental groups like Earthjustice strongly criticized the AGs’ efforts.

“Everyone should be alarmed by these outrageous efforts from states like Florida, Texas, and Louisiana, and their attempts to eviscerate civil rights protections just to make it easier for industrial polluters to continue with business as usual,” said Andre Segura, vice president of litigation at Earthjustice, in the organization’s press release. “The fact is, many of the states that have signed the petition have historically allowed these harmful facilities to be placed in predominantly Black and brown communities, without regard for the health and safety of residents. These decades-old Title VI regulations are critical tools for the federal government to use to ensure that funding is not used to perpetuate this toxic legacy, and the EPA should swiftly reject this petition.”

The letter “is only a request, but it highlights stiff opposition from conservative states to the Biden Administration’s signature [EJ] policies, which include hundreds of millions of dollars for [EJ] projects,” says nonprofit newsroom Floodlight News. “The push could lead to a change in EPA policy if Donald Trump — whose administration was poised to gut the civil-rights law in the final days of his presidency — retakes power in January.”