A hallmark of the Biden Administration’s approach to environmental justice has been using preexisting authorities to advance its agenda, none more so than Title VI of the Civil Rights Act. That approach now faces several challenges.

In early 2024, in State of Louisiana v. U.S. Environmental Protection Agency et al., the State of Louisiana obtained a preliminary injunction enjoining the Environmental Protection Agency (“EPA”) and the Department of Justice (“DOJ”) from imposing or enforcing disparate impact requirements against the State of Louisiana or any Louisiana state agency under Title VI. Generally, Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin.

The State of Louisiana now requests that the Court vacate the challenged regulations or, in the alternative, seeks a statewide permanent injunction that would prohibit the EPA from imposing any regulations that consider disparate impacts. The EPA contends that any permanent injunction should not extend beyond the parties to the action and that vacatur is inappropriate where injunctive relief is sufficient to protect the State’s interest. The EPA emphasizes that the State’s requested relief would effectively “vacate across the country the challenged regulations that have existed for over fifty years.”

By way of background, in 2022 the EPA opened investigations into the practices of the Louisiana Department of Environmental Quality and the Louisiana Department of Health to determine whether these agencies were in violation of Title VI with respect to their consideration of environmental impacts upon minority communities near pollution-emitting facilities and for the lack of environmental justice policies to protect such communities. The State of Louisiana sued the EPA in May 2023, alleging that EPA impermissibly imposed disparate impact requirements under Title VI. Shortly after suit was filed,

the EPA closed its Title VI investigations in Louisiana that formed the basis of the suit. Despite there being no active investigations, the Court found the State of Louisiana faced a credible risk of enforcement and, therefore, maintained standing to pursue injunctive relief regarding EPA’s disparate impact regulations and extra-regulatory mandates.

Prior to any ruling by the Court, the EPA will be permitted to file its final briefing. However decided, this Court’s ruling has the potential to create immediate nationwide impacts on environmental justice initiatives, and litigation in this area is quickly evolving.

Relatedly, on April 16, the Attorneys General from 23 states petitioned EPA to “amend its regulations under Title VI of the Civil Rights Act…to bring them in line with the text of that statute and the Equal Protection Clause of the U.S. Constitution.” The Attorneys General state that disparate impact requirements promote racial discrimination instead of preventing it, and that the Administration’s environmental justice focus “asks the States to engage in racial engineering” instead of focusing on environmental factors. They ask the EPA to amend its regulations to focus on intentional discrimination.