This post is the seventh in a series about human rights and environmental, climate, and energy justice. The series builds on a forthcoming article, Environmental Justice as Environmental Human Rights, by Member Scholar John H. Knox and co-author Nicole Tronolone.
In his first term, President Biden issued executive orders committing the federal government to principles of environmental justice and encouraging federal agencies to take a “whole-of-government approach” as they implement policies with these principles in mind. In this two-part post, Professor Outka offers examples of two states, Louisiana and Alabama, that have adopted a stance in conflict with these priorities in distinct contexts. Part I looks at Louisiana’s attack on environmental justice policies; Part II examines Alabama’s refusal to correct issues raised by EPA about the state’s approach to handling waste from coal-fired power plants.
Part I
In his first month in office, President Biden signed an executive order, “Tackling the Climate Crisis at Home and Abroad,” recommitting the federal government to climate action and environmental justice. The order established the historic Justice40 Initiative, setting a goal that 40 percent of the benefit of certain federal investments “flow to disadvantaged communities” for projects involving clean energy and energy efficiency, clean transit, affordable and sustainable housing, job training, pollution remediation, and clean water infrastructure.1 In April 2023, an additional executive order, “Revitalizing Our Nation’s Commitment to Environmental Justice for All,” reinforced the administration’s commitment to a “whole-of-government approach to environmental justice.”2
Under these directives, federal agencies have worked hard to meaningfully shift from environmental justice aspiration to tangible, effective implementation of environmental justice goals. The renewed commitment to environmental justice is gratifying for all who care about these issues — and the challenge of accomplishing whole-of-government implementation is real. Among numerous complicating aspects of this shift, one key challenge is state resistance — even outright hostility — to federal environmental justice priorities. Two recent examples highlight this in distinct contexts.
The first involves a recent clash between the U.S. Environmental Protection Agency (EPA) and the state of Louisiana explicitly centered on environmental justice in permitting decisions for polluting facilities in “Cancer Alley,” an 85-mile stretch of land known for its concentration of industrial and petrochemical facilities in predominantly Black communities.3
Following years of widespread criticism over EPA’s handling of civil rights complaints, the current administration has promised to reinvigorate the agency’s Office of Environmental Justice and External Civil Rights with timely enforcement of federal civil rights laws and more support and resources for communities.4 An opportunity to demonstrate this commitment presented itself in 2022, when multiple community groups filed civil rights complaints with EPA alleging racial discrimination in permitting by the Louisiana Department of Environmental Quality (LDEQ) and Department of Health (LDH). EPA conducted a preliminary investigation and sent a Letter of Concern to both state agencies.
But while EPA and the LDEQ and LDH were negotiating a resolution, it seems, state attorney general Jeff Landry interjected and sued EPA in federal court for alleged “transgressions of the Constitution, the Clean Air Act, and the Civil Rights Act of 1964.”5 Accusing EPA of having a “warped vision of ‘environmental justice’ and ‘equity’” and being “fixated on race,” Louisiana disclaims any obligation to avoid racially discriminatory effects in its environmental permitting or to consider cumulative pollution impacts on affected communities in permitting decisions.6 Against the backdrop of a recent call from experts on the United Nations Human Rights Council to end “environmental racism” in Cancer Alley,7 the complaint reads as an aggressive and repugnant state challenge to the very concept of environmental justice.
To the surprise of many observers, and to the great disappointment of the communities that filed the civil rights complaints, EPA filed a notice of resolution of both complaints with the court, effectively closing the investigations.8 According to the notice, EPA closed the investigation related to the first facility, Denka Performance Elastomer, based on the expected effect of its federal administrative and judicial enforcement efforts under the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA), as well as a proposed rule under CAA section 112, for ethylene oxide, chloroprene, and other hazardous air pollutants.
The notice also states that EPA closed the second investigation, related to a planned Formosa plastics facility, in light of state litigation related to CAA permits LDEQ issued for the plant, which the 19th Judicial District Court vacated, in part, on environmental justice grounds.9 EPA also filed a motion to dismiss, or in the alternative, summary judgment, based on arguments including lack of standing, mootness, absence of final agency action, and a substantive defense of the legal validity of EPA’s longstanding disparate impact regulations under Section 602 of the Civil Rights Act.10 The litigation is ongoing at the time of this writing.
Meanwhile, the EPA is working through a backlog of Title VI complaints dating to prior administrations and reviewing a high volume of new complaints, as are other federal agencies. The Louisiana developments are discouraging; still, there is potential for the administration to achieve meaningful changes for communities through the Title VI informal resolution process (such as the agreement between the City of Houston and the Department of Justice related to Title VI complaints over chronic illegal dumping in Black and Latino neighborhoods).11 Many will be watching the outcome of the Louisiana case, however, and whether it leads other states to adopt a similar stance.
Part II
In Alabama, the EPA has proposed a denial of the state’s application for delegated authority to administer a coal ash permit program in the state under section RCRA Section 4005(d).12 Although the connection to environmental justice may not be as immediately clear as in Louisiana (see Part 1), the administration’s environmental justice commitments provide a critical backdrop to the agency’s stance.
In 2015, the EPA promulgated regulations for safer disposal for coal combustion residuals (CCRs) from coal-fired power plants.13 Since then, EPA has been under pressure to also address the inactive (“legacy”) coal ash impoundments originally exempted in the 2015 rule after environmental groups challenged that exemption, which was eventually vacated in federal court (to that end, a new proposed rule was published in May of this year.)14 At the same time, the agency has received significant feedback from the public about environmental justice concerns over exposure to coal ash toxics and groundwater contamination at unlined impoundments and landfills.15 It’s in the context of this litigation history and growing public concern that the EPA has proposed to reject Alabama’s application because the state interprets “its State regulations in a manner inconsistent with the plain language of the Federal requirements.”16 In EPA’s view, Alabama is using “permit terms that are neither the same as, nor as protective as, the Federal CCR regulations.”17
Although the basis for denying the application is strictly based on RCRA and relevant regulations, the stringency of review of coal ash disposal permits and program applications is important for environmental justice. In announcing the plan to deny Alabama’s application, EPA Administrator Michael Regan stressed environmental justice as a key focus in managing coal ash pollution: “Low-income and underserved communities are especially vulnerable to coal ash in waterways, groundwater, drinking water, and in the air,” he said, which “is why EPA works closely with states to ensure coal ash is disposed of safely, so that water sources remain free of this pollution and communities are protected from contamination.”18
With 32 coal ash disposal sites in Alabama, the stakes are high in assuring protective measures are applied per existing and pending federal law.19 According to the notice proposing denial, EPA informed Alabama of the flaws in its program and rather than correct them, Alabama attorney general Steve Marshall sent a Notice of Intent to Sue EPA for failing to approve the program in its current form.20 Public hearings on the proposed denial were held September 20 and 27, and written comments were accepted through October 13.21
* * *
The examples of Louisiana and Alabama show the particular challenges for the Biden administration’s environmental justice agenda when state actors refuse to work with EPA or outright reject environmental justice as a worthy objective. Progress for environmental justice inevitably depends on federal, state, and local levels of government. The examples here highlight the significant role of states in critical environmental policy decisions, especially when permitting authority is delegated to states under federal environmental statutes designed for cooperative federalism. The proposed denial of Alabama’s application for authority to run the coal ash permit program shows EPA’s keen awareness of this fact.22
Even as more states are incorporating environmental justice into state law — see for example, the recently enacted Environmental Justice Law in the state of New York23 — the “overheated rhetoric” in Louisiana’s complaint shows how much ground there still is to cover.24 It’s common now for environmental justice to be characterized as a “hot topic” or a “new” trend, but that suggests there’s a time in the future when collective attention can move on — it disrespects what’s at stake and the years of work by movement leaders. The environmental harms motivating the movement are long-standing, and it’s been persistent, long-term grassroots advocacy that has brought environmental justice to the forefront of federal policy today.
As EPA works to employ the legal tools available to address pollution, communities and their advocates deserve credit in many instances for pushing the agency to do so — the litigation that prompted the CAA Section 112 rulemaking noted with regard to the Louisiana facility in Part I of this post is a relevant case in point.25
As much as so many of us hope federal environmental justice efforts continue — through the challenges and difficulties, and irrespective of the result of the next presidential election — we know from experience that is not guaranteed.26 These recent developments serve as a reminder that even with a clear focus on environmental justice at the federal level, the significant role of sub-federal governments in environmental decisions makes continued state and local advocacy, and support for such advocacy, as important now as ever.
1 Exec. Order 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619 (Feb. 1, 2021) (see Section 223).
2 Exec. Order 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, 88 Fed. Reg. 25251 (Apr. 26, 2023) (Section 1).
3 See facts recitation in Defendants’ Combined Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction and in support of Defendant’s Cross-Motion to Dismiss or, in the Alternative, for Summary Judgement at 8-10, State of Louisiana v. EPA, No. 2:23-cv-00692-JDC-KK (W.D. La. Aug. 16, 2023).
4 See EPA, FY 2022-26 EPA Strategic Plan (includes strategic goal to “Take Decisive Action to Advance Environmental Justice and Civil Rights”). See also US Commission on Civil Rights, Environmental Justice: Examining the Environmental Protection Agency’s Compliance and Enforcement of Title VI and Executive Order 12,898 (2016).
5 Complaint, State of Louisiana v. EPA, No. 2:23-cv-00692, at 2 (W.D. La. May 24, 2023). Subsequent reporting suggests LDEQ and LDH were amenable to working with EPA prior to the attorney general’s involvement, see, e.g. Susan Richardson and Jeffrey Davidson, Assessing EPA’s Potential Retreat on Title VI Enforcement (July 31, 2023) [subscription]; and raises concerns about the role of Landry’s office in the investigation and use of outside counsel who also represented regulated entities. See, e.g., The Guardian, Revealed: Louisiana created alleged conflict of interest in ‘Cancer Alley’ case (Aug. 10, 2023).
6 Complaint, supra note 5, at 3 (objecting “to Defendants’ attempts to impose disparate-impact-based requirements on the State”) and 18 (objecting to EPA’s call for a “cumulative impacts assessment”).
7 Press Release, United Nations, “Environmental racism in Louisiana’s ‘Cancer Alley’ must end, say UN human rights experts” (Mar. 2, 2021).
8 Defendants’ Notice of Resolution of Title VI Complaints, State of Louisiana v. EPA, No. 2:23-cv-00692 (W.D. of La. June 27, 2023). See Earthjustice, “EPA Closes Civil Rights Investigation in Louisiana, Abandons Efforts to Address Longstanding Environmental Discrimination” (June 27, 2023).
9 See Rise St. James et al. v. LDEQ, 694,029 (19th Judicial District, La. 9/8/22).
10 Defendants’ Combined Memorandum, supra note 3 at 11-53.
11 See Dept. of Justice, Resolution Agreement Between the United States of America and the City of Houston No. 171-74-36 (June 5, 2023).
12 See EPA, Notice of Availability; Request for Comment – Alabama: Denial of State Coal Combustion Residuals Permit Program, 88 Fed. Reg. 55220 (Aug. 14, 2023) (To date, EPA has only approved state programs in Georgia, Oklahoma, and Texas).
13 EPA, Final Rule – Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals From Electric Utilities, 80 Fed. Reg. 21302 (Apr. 17, 2015) (setting national minimum criteria for existing and new CCR landfills and surface impoundments).
14 EPA, Proposed Rule – Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Legacy CCR Surface Impoundments), 88 Fed. Reg. 31982 (May 18, 2023). See Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. 2018) (in which the court agreed with environmental petitioners that the exemption was arbitrary and capricious).
15 See, e.g., Kari Kydersen, At rules hearing, U.S. EPA hears human toll of unaddressed coal ash pollution, Energy News Network (June 29, 2023) (reporting at an EPA hearing on new proposed coal ash rule, “The environmental injustice of coal ash was clear…as residents testified from Native American communities in New Mexico and Nevada, Latino communities in Midwestern cities, and Black communities in Alabama and Tennessee, among others. Multiple people told the EPA officials about their friends and family who had died or suffered from cancer or other illnesses they attribute to coal ash.”).
16 EPA, Notice of Availability; Request for Comment – Alabama, supra note 12 at 55222.
17 Id.
18 EPA, News Release: EPA Proposes to Deny Alabama’s Coal Ash Permit Program and Better Protect Local Communities from Pollution (Aug. 3, 2023) (calling decision “latest EPA action to protect overburdened communities and water sources from coal ash contamination, advancing environmental justice”). See also Peter McGuire, EPA to Deny Botched Ala. Coal Ash Permit Program, Law360 (Aug. 3, 2023).
19 See Earthjustice, “Toxic Coal Ash in Alabama: Addressing Coal Plants’ Hazardous Legacy” (May 3, 2023).
20 EPA, Notice of Availability; Request for Comment – Alabama, supra note 12 at 55224 (citing Letter from Alabama Attorney General Steve Marshall to EPA Administrator Michael Regan, Notice of Endangerment and Intent to Sue under Section 7002(a)(1)(A) and (1)(B) of the Resource Conservation and Recovery Act. December 9, 2022).
21 EPA, U.S. State of Alabama Coal Combustion Residuals Permit Program Proposed Denial – Public Hearings; se See EPA, Notice of Availability; Request for Comment, supra note 12.
22 EPA, Notice of Availability; Request for Comment – Alabama: Denial of State Coal Combustion Residuals Permit Program, supra note 12 at 55227. As EPA explains, if the agency “were to approve Alabama’s program now (i.e., after the deficient CCR permits were issued), the Alabama CCR program, including the facility-specific permits, would apply in lieu of the Federal CCR regulations pursuant to RCRA section 4005(d)(1)(A) and (3).”
23 For a summary discussion of the new law in relation to other environmental justice laws recently enacted in other states, see Michael B. Gerrard & Edward McTiernan, New York Adopts Nation’s Strongest Environmental Justice Law, N.Y. L.J. (May 10, 2023).
24 Defendants’ Combined Memorandum, supra note 3 at 2.
25 The litigation was brought by t.e.j.a.s., California Communities Against Toxics; Louisiana Environmental Action Network; Rise St. James; and Sierra Club, represented by Earthjustice, and the Environmental Integrity Project (representing itself). See EPA, New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry, 88 Fed. Reg. 25080 (Apr. 25, 2023). See also Defendants’ Notice of Resolution of Title VI Complaints, State of Louisiana v. EPA, No. 2:23-cv-00692 (W.D. of La. June 27, 2023)( Exhibit A and B). For community reactions to consent decree and the consent decree itself, see Earthjustice, “EPA agrees to update rules for cancer causing chemical plants” (Feb. 25, 2022).
26 See generally Uma Outka & Elizabeth Kronk Warner, Reversing Course on Environmental Justice under the Trump Administration, 54 Wake Forest Law Review 393 (2019). See also Heritage Fndtn., 2025 Presidential Transition Project (2023) (see, e.g., Chapter 13 proposing strategies for conservative reversal of environmental justice work at EPA).