“Pollution Does Not [sic] Discriminate”: Louisiana v. EPA, Disparate Impact, and the Fight for Environmental Justice in a Hostile Climate

By NAOMI BRIM. Full Text.

Human-induced climate change hurts people. Environmental burdens impact a person’s ability to live freely, in good health, and with loved ones. And in the United States, people in positions of political authority and decision-making—who are predominantly white and high-income—use the legal system to push environmental harms disproportionately onto low-income, Black, Indigenous, People of Color ( BIPOC ) communities. This has occurred for centuries and continues in the present. A basic sense of justice makes the following conclusion easy to reach: skin color, zip code, and pocketbook should not determine whether someone enjoys a clean and healthful environment.

For plaintiffs seeking relief from environmental injustice, a critical tool is the U.S. Environmental Protection Agency’s (EPA) Title VI regulations (the Regulations), which prohibit EPA funding recipients from taking actions that have a discriminatory effect, or “disparate impact,” on the basis of race.

However, legal challenges and changing political conditions make the Regulations’ future tenuous. In Louisiana v. EPA (W.D. La. 2024), for the first time since the Regulations were promulgated in 1973, a federal court held that the Regulations’ disparate impact requirements are invalid and issued an injunction barring the EPA from enforcing them. The second Trump administration is also taking steps to eliminate disparate-impact requirements and cease civil rights enforcement.

This Note examines these emergent challenges to the EPA’s Title VI disparate impact regulations. It considers state-level measures for combatting environmental racism amidst a federal landscape that is increasingly hostile towards race-based equity measures. Using the Biden administration’s Justice40 Initiative as a case study, the Note analyzes arguments for and against race-neutral environmental justice policies, providing novel data analysis on the correlation between Justice40’s race-neutral environmental burden metrics and racial demography.

Ultimately, I maintain that the decision to pursue race-based or race-neutral environmental justice laws must be made on a state-by-state basis, in forums led by BIPOC communities. This Note aims to assist state legislators, policymakers, organizers, and advocates. It identifies a recent legal development threatening environmental justice efforts; analyzes relevant factual, legal, and policy considerations; and offers empirical analysis to inform strategy.