By: Nathan Bromley
I. Introduction and Background
The United States Supreme Court is well-known for its fluctuations. Since issuing is first decision in 1791, the high Court has issued a myriad of different opinions, ranging from one side of the political spectrum to the other.[1] For example, Chief Justice Earl Warren’s Court spanned from 1953-1969, and it is considered by some to be the most liberal Supreme Court in history.[2] However, not 20 years later came Chief Justice Rehnquist’s Court, which was notoriously conservative.[3] Chief Justice Roberts’s Court, the current sitting United States Supreme Court, is also considered to be conservative in many areas, but it has set forth expansions of healthcare access and LGBTQ+ rights.[4]
More recently, the United States Supreme Court has opened a new chapter of issuing decisions that alter or completely reverse long-standing areas of law.[5] This shift has affected, among other things, the power that the Environmental Protection Agency (EPA) possesses to regulate. This shift in tone from the Supreme Court has far-reaching effects, which extend to residents of Louisiana. The following analyzes two recent Supreme Court decisions and how they may be affecting investigations into environmental justice issues in Louisiana.
II. West Virginia v. EPA
In 2015, the EPA set forth the “Clean Power Plan” rule, which addressed carbon dioxide emissions from coal and natural gas firing powerplants.[6] The EPA, attempting to shift the United States away from coal burning, implemented as part of the “Clean Power Plan” a “generation shifting” tactic.[7] Essentially, generation shifting shifts electricity generation from coal-fired plants to natural gas and renewable energy (solar and wind powered) plants to reduce carbon dioxide emissions.[8] Generation shifting, according to the majority, was unlike any action the EPA has undertaken in the past.[9] The question before Court was “whether this broader conception of EPA’s authority is within the power granted by the Clean Air Act.”[10]
In a 5-4 decision, the majority held that the “generation shifting” tactic in the Clean Power Plan exceeded the EPA’s authority.[11] In doing so, the majority opinion, authored by Chief Justice Roberts, set forth the “major questions doctrine.”[12] The major questions doctrine stands for the notion that, when an administrative agency will have significant effects across the country, then there must be “clear congressional authorization” of such an action.[13] Applying this novel major questions doctrine, the majority held that the EPA did not have the power to require generation shifting.[14] The Court pointed to the estimated effects that generation shifting would have on the country in holding that there must be clear congressional authorization to engage in this type of action.[15]
Justice Kagan dissented, saying that the major questions doctrine “replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules.”[16] Justice Kagan ended her dissent by saying that “the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”[17]
This interpretation of the EPA’s authority severely limits the EPA’s authority to address carbon dioxide emissions, which is a major component of greenhouse gas emissions and climate change.[18] The following case further displays the Supreme Court’s tendency to restrict the EPA’s authority by limiting the EPA’s ability to regulate water.
III. Sackett v. EPA
In Sackett, Michael and Chantell Sackett purchased land to build a home.[19] As part of the construction of the home, the Sacketts began backfilling the lot with dirt.[20] The EPA then sent the Sacketts a letter informing them that their property contained wetlands and that backfilling the dirt on their land constituted discharging pollutants into “the waters of the United States,” as is prohibited by the Clean Water Act.[21] The EPA classified the wetlands on the property as “waters of the United States” because they were “near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.”[22] The Sacketts then sued the EPA, alleging that the wetlands on their property were not “waters of the United States.”[23] The district court entered summary judgment for the EPA, the Ninth Circuit Court of Appeals affirmed, and the Supreme Court granted writ of certiorari.[24]
The issue before the Supreme Court concerned the “outer reaches of the Clean Water Act.”[25] Specifically, the majority looked to the history of how the phrase “waters of the United States” has been interpreted.[26] Justice Alito authored the opinion of the Court and concluded that only the “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.”[27] In coming to this conclusion, the majority reasoned that the “Court require[s] Congress to enact exceedingly clear language if it wishes to significantly alter . . . the power of the Government over private property.”[28]
The Supreme Court unanimously agreed as to the outcome of the case, but there was much disagreement as to the test the Justice Alito formulated to determine whether wetlands are considered waters of the United States.[29] Justice Kagan, one of the dissenters in West Virginia v. EPA, authored one of these concurring opinions.[30]
Justice Kagan analyzed the word “adjacent” as found in the relevant statute applicable to wetlands and pointed out that the EPA and the Army Corps have considered wetlands to be “adjacent” when they are “contiguous to or bordering a covered water, or . . . separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune or the like.”[31] Justice Kagan asserted that “the majority shelve[d] the usual rules of interpretation – reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with judges’ policy preferences.”[32] According to Justice Kagan, the requirement of “exceedingly clear language” from Congress is a “judicially manufactured clear-statement rule.”[33] This rule, according to Kagan, puts a “thumb on the scale for property owners – no matter that the Act . . . is all about stopping property owners from polluting.”[34]
Justice Kagan ended her concurring opinion by quoting her own concurring opinion from West Virginia v. EPA: “the Court substitutes its own ideas about policymaking for Congress’s. The court will not allow the Clean Water Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.”[35]
IV. Recent Louisiana lawsuit Filed Against the EPA
West Virginia v. EPA and Sackett v. EPA lay the backdrop for recent events that took place in Louisiana, specifically the EPA’s investigation into the Industrial Corridor, also known as “Cancer Alley.”
First, some background on air pollution in Louisiana and the Industrial Corridor is needed. It is no groundbreaking revelation that Louisiana’s air quality is poor. In fact, to say it is “poor” is quite the understatement; Louisiana consistently ranks at or near the bottom among the United States in air quality.[36] Specifically, Louisiana houses “Cancer Alley,” an industrial area running from Baton Rouge to New Orleans.[37] This area is known for its high cancer rates that are believed by many to be linked to the significant number of industrial sites in the area.[38]
Cancer Alley presents questions of discrimination. The U.S. Census data from 2020 indicates that the parishes in Cancer Alley have higher proportions of black residents relative to the rest of the state, with St. John the Baptist and St. James Parishes being made up of 58.4% and 48.8% black residents respectively.[39] Thus, black residents bear the brunt of the air pollution resulting from the industrial sites in Cancer Alley.[40]
In response to complaints filed by many special interest groups, the EPA launched an investigation into Cancer Alley, the results of which were released in October 2022.[41] This investigation assessed whether the Louisiana Department of Environmental Quality’s (LDEQ) and the Louisiana Department of Health’s (LDH) actions have an “adverse disparate impact” on black residents living in the area.[42] Louisiana thereafter filed a lawsuit against the EPA, alleging that the EPA has improperly “weaponized” civil rights law in pursuing the investigations.[43] The EPA, to the surprise and dismay of many Cancer Alley residents, dropped the investigation.[44]
Many wonder why the EPA dropped this lawsuit, especially considering that the EPA found “initial evidence of racial discrimination.”[45] To understand one potential reason as to why the EPA dropped the investigation, a closer look at the EPA’s power and the lawsuit itself is necessary. Section 601 of the Civil Rights Act of 1964 provides plainly that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[46] The EPA, along with other administrative agencies, enforces section 601 through section 602 of the Civil Rights Act of 1964, which authorizes federal agencies that extend funds to other agencies to “effectuate the provisions of section 2000d,” i.e. section 601 of the Civil Rights Act of 1964.[47] In Alexander v. Sandoval, the Supreme Court addressed, among other things, whether section 601 of the Civil Rights Act of 1964 grants individuals a private right of action where there is only evidence of disparate impact on a certain group of people but no evidence of intentional discrimination.[48] The Court ultimately held that section 601 does not provide such a right of action, but in doing so, it assumed arguendo that agencies, in enforcing section 601 through section 602, can consider “disparate impact” in granting funds to certain programs.[49] Other than in Alexander v. Sandoval, the question of whether section 602 authorizes administrative agencies to enforce section 601 by performing a “disparate impact” analysis has not been directly addressed by the Supreme Court.[50]
This is the exact question raised in Louisiana’s lawsuit against the EPA.[51] Louisiana invokes the newly announced major questions doctrine in asserting that the EPA lacks the power to perform a disparate impact analysis because it has not been expressly granted the power to do so by Congress.[52] If the EPA had continued its investigation, it is possible that this case could make it to the Supreme Court. Considering the new major questions doctrine and the Supreme Court’s recent tightening of the EPA’s power, the EPA may have dropped this investigation to prevent the Supreme Court from deciding this issue. The effects of this decision would reach far beyond the EPA; it would affect all administrative agencies’ ability to enforce Civil Rights.
The EPA may have dropped the investigation into Louisiana, but Louisiana has not dropped the lawsuit against the EPA.[53] Louisiana is pushing forward with the lawsuit, although some experts doubt Louisiana’s standing in the case considering that Louisiana is now no longer being required to comply with any EPA requirements.[54] Many people will undoubtedly be following this case to see how the courts handle this scenario.
[1] See Supreme Court History, Justia U.S. Supreme Court, https://supreme.justia.com/supreme-court-history/ [https://perma.cc/764P-7DUP] (last visited Sept. 26, 2023).
[2] Id.
[3] Id.
[4] Id.
[5] See Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022); see also New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).
[6] West Virginia v. EPA, 142 S.Ct. 2587, 2592 (2022).
[7] Id. at 2593.
[8] Id.
[9] Id. at 2610.
[10] Id. at 2600.
[11] Id. at 2616.
[12] Id. at 2610.
[13] Id. at 2609.
[14] Id. at 2616.
[15] Id.
[16] Id. at 2634 (Kagan, J., dissenting).
[17] Id. at 2644 (Kagan, J., dissenting).
[18] Id. at 2626 (Kagan, J., dissenting).
[19] Sackett v. EPA, 143 S.Ct. 1322, 1324 (2023).
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id. at 1329.
[26] Id. at 1330-36.
[27] Id. at 1344 (citing the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006)).
[28] Id. at 1341.
[29] Id. at 1322.
[30] Id.
[31] Id. at 1359 (Kagan, J., concurring).
[32] Id. at 1360 (Kagan, J., concurring).
[33] Id.
[34] Id. at 1361 (Kagan, J., concurring).
[35] Id. at 1362 (Kagan, J., concurring).
[36] Annika Kim Constantino, These 7 States have the worst air pollution in the U.S., cnbc.com (Sept. 18, 2022, 9:00 AM), https://www.cnbc.com/2022/09/18/louisiana-nevada-indiana-us-states-with-worst-air-pollution.html [https://perma.cc/R9SL-AJLJ].
[37] Lylla Younes, et al, In a Notoriously Polluted Area of the Country, Massive New Chemical Plants Are Still Moving In, ProPublica (Oct. 30, 2019), https://projects.propublica.org/louisiana-toxic-air/ [https://perma.cc/AJ6H-5K47].
[38] See Id.; but see David Hammer, Toxic Truth: Cancer Alley, myth or reality?, 4WWL (Feb. 26, 2018, 7:05 PM), https://www.wwltv.com/article/news/local/toxic-truth-cancer-alley-myth-or-reality/289-523447797 [https://perma.cc/35X4-C7PD] (reporting on a study showing that cancer rates in St. John the Baptist Parish, a parish in “Cancer Alley,” had lower cancer rates than other parishes in Louisiana).
[39] Bobbi Jeanne Misick, Cancer rates are higher in polluted, poorer Louisiana neighborhoods, new study says, New Orleans Pub. Radio (Jan. 19, 2022 3:07 PM), https://www.wwno.org/coastal-desk/2022-01-19/cancer-rates-are-higher-in-polluted-poorer-louisiana-neighborhoods-new-study-says [https://perma.cc/Z3UR-6VWH].
[40] Trisha Gopal, ‘We are being poisoned’: Black residents living in Louisiana’s ‘Cancer Alley’ say the state is guilty of ‘genocide’ and environmental racism, businessinsider (Aug. 3, 2023, 10:25 AM), https://www.businessinsider.com/cancer-alley-louisiana-epa-environmental-racism-pollution-2023-7#:~:text=%22Cancer%20Alley%22%20is%20an%2085,residents%20there%20after%20one%20year [https://perma.cc/3NXJ-TBQL].
[41] Nakylah Carter, ‘Cancer Alley’ at center of lawsuit claiming environmental health crisis, abcNEWS (Mar. 23, 2023 7:21 AM), https://abcnews.go.com/US/cancer-alley-center-lawsuit-claiming-environmental-health-crisis/story?id=98014712 [https://perma.cc/NEJ4-RYMU].
[42] Halle Parker, EPA investigation into Louisiana agencies yields evidence of racial discrimination, WWNO (Oct. 14, 2022), https://www.wwno.org/coastal-desk/2022-10-14/epa-investigation-into-louisiana-agencies-yields-evidence-of-racial-discrimination [https://perma.cc/2MXP-T9WH].
[43] Michael Phillis, EPA Drops environmental justice investigations in Louisiana, PBSNewsHour (June 28, 2023, 11:29 AM), https://www.pbs.org/newshour/nation/epa-drops-environmental-justice-investigations-in-louisiana [https://perma.cc/YZ7D-EWB7].
[44] Id.
[45] Id.
[46] 42 U.S.C.A. § 2000d (West 1964).
[47] Id. § 2000d-1 (West 1964).
[48] Alexander v. Sandoval, 523 U.S. 275 (2001).
[49] Id. at 281.
[50] See Christopher D. Ahlers, Race, Ethnicity, and Air Pollution: New Directions in Environmental Justice, 46 Envtl. L. 713, 721-27 (2016) (discussing Alexander v. Sandoval and other environmental justice issues in detail).
[51] CourthouseNews, https://www.courthousenews.com/wp-content/uploads/2023/06/Resolution-notice-Louisiana-v-EPA-usdc-western-Louisiana.pdf [https://perma.cc/YT74-CXHT] (last visited Oct. 16, 2023).
[52] Id.
[53] See Lue Boileau, Verite, If successful, Landry’s EPA suit could be a ‘significant setback’ for the Civil Rights Act, La. Illuminator (Aug. 5, 2023 12:00 PM), https://lailluminator.com/2023/08/05/if-successful-landrys-epa-suit-could-be-a-significant-setback-for-the-civil-rights-act/ [https://perma.cc/UHV3-DG62].
[54] Id.
