Do EPA regulations prohibit racism or implement it?

A recent federal court decision prohibited the Environmental Protection Agency (EPA) from regulating pollution based on skin color. Viewed as a blow to “environmental justice” initiatives, the Louisiana decision hinged on an important distinction between government policies created with racist intent versus those that result in racially disparate impacts. The ruling may influence future regulatory action, raising important questions about environmental pollution and its impact on high-risk communities.

Louisiana v. EPA

State of Louisiana v. US Environmental Protection Agency addressed a challenge by that state to federal efforts to employ racial criteria to regulate the location of facilities that emit pollution, citing “significant evidence suggesting that the Departments’ actions or inactions have resulted and continue to result in disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.” As part of its environmental investigation, the EPA sought to measure air pollution levels in several black communities where controversial factories had been issued industrial permits by state regulators.

On Aug. 24, Judge James Cain granted the state’s request for a permanent injunction against this EPA enforcement. In a lengthy Jan. 23, 2023, decision granting Louisiana’s earlier request for a temporary injunction, the court ruled that:

“the State is entitled to unambiguous clarity concerning Defendants’ power to regulate beyond the plain text of Title VI. This is its sovereign right. 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. It is abundantly clear, that Defendants’ actions iterated herein have created great cause for concern, not only for the State of Louisiana, but also for our sister states who have also found themselves at the whim of the EPA and its overreaching mandates. The State has met its burden as to irreparable harm.” (at p. 76)

Environmental Justice?

Civil rights advocates have criticized the ruling, but extending federal regulatory powers to govern racial impacts in the absence of a demonstrated racial intent is a departure from established civil rights laws. Combatting racist policies is different from employing racism in crafting them. Lester Duhé, press secretary for Louisiana Attorney General Elizabeth Murrill, stated, “Disparate impact does not exist in federal law. Environmental rules only cover intentional discrimination. The EPA can’t write the law, that’s Congress’ job.”

In the wake of the US Supreme Court’s repeal of longstanding case law that gave broad deference to federal agencies implementing federal laws under a practice called “Chevron deference,” courts are expected not only to defer to agency actions such as EPA’s here but also require specific authorization from Congress. An important constitutional question remains whether EPA’s efforts to regulate pollution solely on the criterion of skin color itself run afoul of equal protection and other provisions that prohibit exactly that.

The issue of using government to allocate pollution – like calls to reallocate wealth for past harms based on race – is an example of elevating “equity” above “equality.” Critical race “theorists” posit that “the only cure for past discrimination is future discrimination.” This risks further inequities and embarks the nation on an endless cycle of race-lens policies that directly offend the American creed of the unique value of each individual.

The EPA’s efforts in Louisiana sound laudable on their face: It is unconscionable that predominantly black communities suffer the effects of industrial pollution in those communities. However, there are numerous white communities perched atop poisoned groundwater from leaking Superfund landfills, or near abandoned mines or fracking operations – it would clearly be immoral to “favor” those communities based solely on their whiteness (a skin color they could not choose). The argument that the reverse is somehow morally just (“environmental justice”) is an attractive deception toward institutionalized government racism.

Colorblind Pollution

Many issues are involved in selecting locations for large industrial facilities, and few want them in their backyard. However, urban areas benefit from modern transportation systems, a plentiful workforce, existing commercial zoning, and nearby related businesses that may be suppliers or processors connected to the anticipated business. Indeed, providing jobs to low-income black communities may be a positive factor for siting new factories in these communities.

The problems of industrial manufacturing are pressing enough without being racialized. Cobalt manufacturing in the Democratic Republic of Congo is creating wealth and jobs for residents there – while decimating their drinking water and farmlands. Is that racially motivated by white and black US EV drivers who need cobalt for their batteries? How would racializing Congo’s pollution benefit anyone, and isn’t the goal to reduce or clean up pollution for all, not shift it to someone else’s house or well based solely on their skin pigments?

Ecotoxins are colorblind. Factory locations should be selected based on the lowest environmental pollution emissions for the entire ecosystem, not the lowest toxin levels for one race or neighborhood. Multiple considerations such as property costs, existing contamination, service accessibility, and labor pool all center on profitability and viability, not sinister (never-proven) designs to chemically toxify the black community. Indeed, high levels of existing inner-city pollution are themselves reason to locate future facilities in already compromised areas rather than pollute pristine lands and waters: The nation’s countryside has long been ravaged and polluted to feed urban consumption.

In the end, all of these chemical pollutants (their production subsidized by federal renewable energy manufacturing grants), many of which last “forever,” are poisoning every child in the world regardless of skin color, merit, or socio-economic status. In the absence of evidence of racist intent (which is and should be illegal), “watch-the-racist-birdie” bickering over which skin color to dump toxic pollution on helps those spigots stay wide open.