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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.

For any further questions about Louisiana v. EPA and environmental justice issues, contact Liskow attorneys Clare Bienvenu, Emily von Qualen, Greg Johnson, and Cherrell Taplin.

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Photo of Clare M. Bienvenu Clare M. Bienvenu

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental…

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental laws. Clare additionally facilitates the permitting and regulatory aspects of developing new facilities on behalf of energy, petrochemical, and industrial clients. Her substantive environmental experience includes air permitting, hazardous waste regulation, land remediation, land use regulation, coastal regulation, carbon sequestration projects, and renewable energy projects.

Clare has played a key role in various administrative matters, proceedings, and enforcement actions. She has participated in consent decree negotiations and the termination of consent decrees with the Environmental Protection Agency and the Department of Justice, as well as settlement negotiations with the Louisiana Department of Environmental Quality and the California Air Resources Board. Clare has also represented clients in permitting matters involving the U.S. Army Corps of Engineers and the Louisiana Department of Natural Resources, Office of Coastal Management. She also advises on environmental justice considerations in the context of agency permitting.

Photo of Emily von Qualen Emily von Qualen

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in…

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in the Western District of Louisiana with Judge Minaldi.

Emily received her Juris Doctor from Tulane University Law School in 2016, graduating first in her class.  During law school, she also served as a judicial extern to the Honorable James L. Dennis of the United States Court of Appeals for the Fifth Circuit and the Honorable James Brady of the United States District Court, Middle District of Louisiana.

Photo of Greg L. Johnson Greg L. Johnson

Greg Johnson is an experienced business lawyer with a long record of helping Louisiana companies with the environmental aspects of complex, large-impact transactions, litigation, and regulatory compliance issues throughout the surrounding Gulf Coast region.  A significant focus of Greg’s practice is representing domestic…

Greg Johnson is an experienced business lawyer with a long record of helping Louisiana companies with the environmental aspects of complex, large-impact transactions, litigation, and regulatory compliance issues throughout the surrounding Gulf Coast region.  A significant focus of Greg’s practice is representing domestic and international corporations with environmental permitting for major, high-profile industrial facility projects – such as a proposed, $20 billion gas-to-liquid facility – and with the resolution of often-controversial, high-exposure, oil and gas or energy-related disputes, such as claims in the aftermath of the Deepwater Horizon oil spill.

Photo of Cherrell Simms Taplin Cherrell Simms Taplin

Cherrell is the Chief Diversity, Equity, and Inclusion Officer and a trial lawyer who assists commercial clients, non-profit organizations, public entities, maritime companies, and major energy clients in all areas of litigation. She represents companies in matters related to construction disputes, contract and…

Cherrell is the Chief Diversity, Equity, and Inclusion Officer and a trial lawyer who assists commercial clients, non-profit organizations, public entities, maritime companies, and major energy clients in all areas of litigation. She represents companies in matters related to construction disputes, contract and quasi-contracts, director and officer liability, tort liability, insurance coverage disputes, labor and employment matters, tax litigation, unfair trade practice/business torts, and unjust enrichment claims. She regularly handles construction matters for clients, including compliance with the Louisiana Public Works Act, Construction Management at Risk procurements, and public bids, zoning, and variances. She is also a qualified mediator and arbitrator through Mediations Arbitration Professional Systems, Inc. (maps), and an American Arbitration Association panelist.

Prior to joining the firm, Cherrell worked as a partner in private practice, served as Judge Pro Tempore in state court, and served as the Senior Chief Deputy City Attorney for the City of New Orleans. In 2011, she became the first Black woman partner at a major law firm in New Orleans. There, she represented insurance companies, businesses, and corporate clients in both federal and state courts throughout Louisiana. In 2013, Cherrell was appointed Senior Chief Deputy City Attorney for the City of New Orleans. Her role was as second-in-command to the City Attorney and included the position – Chief of Litigation. As Chief of Litigation for the City of New Orleans, Cherrell managed over 1000 cases that involved litigation in state, federal, and municipal and traffic courts. The matters that she handled were diverse and included: personal injury, contract, construction, land use, public bid, employment, code enforcement, public records, administrative appeals, and civil rights litigation. She also represented the City of New Orleans in several high-profile cases.