In a novel lawsuit brought early last year, a trio of Louisiana challengers laid out a sweeping narrative that traced a direct line between the oppressive legacy of slavery and allegedly discriminatory air pollution exposure.
But their bid to upend one parish’s land-use practices faltered when a federal judge threw out the suit eight months later on prosaic procedural grounds. Now, those plaintiffs are regrouping for a rematch before the 5th U.S. Circuit Court of Appeals.
Oral arguments in the case are set for Oct. 7 in New Orleans. At stake is what lawyers for Inclusive Louisiana, a nonprofit advocacy group, and two other plaintiffs say is a long-standing policy of “steering harmful industry into majority-Black districts” in St. James Parish.
The area was once an antebellum hub of sugarcane production rooted in brutally controlled slave labor. It’s tucked into the heart of the Mississippi River corridor between New Orleans and Baton Rouge nowadays known as “Cancer Alley” because of the plethora of polluting plants run by Exxon Mobil, Shell and other corporate heavyweights.
In court papers, lawyers for the three organizations write that Senior U.S. District Judge Carl Barbier of the Eastern District of Louisiana erred on multiple fronts in tossing the suit last November. Urging the 5th Circuit to uphold Barbier’s decision are St. James Parish leaders, who say that it “accurately applied the law to the facts.”
The 5th Circuit is usually ranked among the nation’s most conservative appellate courts. The Oct. 7 arguments are scheduled to last 40 minutes. Hearing them will be Senior Judge Patrick Higginbotham, named to the court by President Ronald Reagan; Judge Carl Stewart, a Clinton appointee; and Judge Catharina Haynes, a George W. Bush pick.
The main issue is clear, said Pam Spees, a senior staff attorney with the New York-based Center for Constitutional Rights who’s helping to represent the challengers. If the 5th Circuit were to hold that their claims are barred by the passage of time, “it would basically immunize ongoing unconstitutional racial and religious discrimination against challenge,” Spees wrote in an email.
“Whether conservative or liberal, any court must agree that such a result runs against the most basic principles of the rule of law, and the very purpose and function of our courts in the constitutional system,” she added.
Besides Inclusive Louisiana, the challengers are a local Baptist church and Rise St. James, another advocacy group.
John King, a partner in the Baton Rouge law firm defending St. James Parish, in a brief phone conversation declined to comment.
Symbolic importance
The outcome stands to directly affect a parish with a population of around 20,000 people. But a victory for the plaintiffs could carry broader symbolic weight in a part of the country that has become a byword for harmful pollution that disproportionately falls on people of color and low-income communities.
The court showdown also comes as the Biden administration’s pursuit of “environmental justice” in the area is struggling to notch concrete gains. Last year, EPA abruptly retreated from a civil rights inquiry into the impact of Louisiana’s air pollution permitting practices in the face of a state counterattack on the probe’s underpinnings.
Some 19 months after EPA argued that emissions from a synthetic rubber producer in neighboring St. John the Baptist Parish posed an “Imminent” danger to nearby residents, an attempted crackdown remains snarled in a separate court proceeding.
While recently tightened air toxics regulations on the chemical sector are expected to cut emissions from some local plants, those stronger standards generally won’t take effect until 2026 at the earliest.
For Inclusive Louisiana and the other coalition members, however, the foil is not any one plant, but a 2014 St. James Parish zoning plan allegedly designed to keep shoehorning industrial development into two districts that are majority Black, thus violating the 14th Amendment’s guarantee of equal protection.
More than a half-century after parish leaders began wooing heavy industry, 20 out of 24 approved projects had been slated for those two districts, the suit alleged. In what the challengers label a “racial cleansing plan,” the council then designated the two majority-Black districts as “existing residential/future industrial” as part of a broader strategy of keeping oil storage terminals and other facilities out of predominantly white areas.
The plan “is a relic or vestige of the plantation and slavery system that existed in St. James Parish,” the suit added.
In their rebuttal, attorneys for the parish accused the challengers of sensationalism, adding that they had offered no factual evidence to show “that local officials were motivated by slavery or a discriminatory intent” in approving the 2014 plan.
In granting the parish’s motion to dismiss the suit last November, Barbier found that the coalition lacked the legal standing to bring some parts of the case, while various statutes of limitation had run out on other claims because they did not amount to “continuing violations.”
But Barbier, a Clinton appointee, added that he could not say that the challengers’ claims “lack a basis in fact or rely on a meritless legal theory.” They appealed to the 5th Circuit the following month.
A ‘pattern and practice’ of discrimination?
In 2022, the last year for which final numbers are available, St. James Parish ranked in the top 10 percent of almost 2,500 parishes and counties nationwide in the total volume of industrial pollution discharges, according to data reported to EPA’s Toxics Release Inventory.
While emissions of ammonia, benzene and other air pollutants had fallen roughly two-thirds since 2013, they still totaled almost 1 million pounds, the data shows.
Nonetheless, the parish council in 2019 approved Formosa Plastics’ land-use application for a new plastics manufacturing complex that would almost double air releases locally and dramatically add to residents’ exposure to cancer-causing pollution, according to the suit.
The complex, which would sit on former plantation land, has yet to be built amid a seesaw legal battle. Besides seeking to bar future projects from the two districts, the original suit sought to strike the parish’s approval for the complex.
In their opening brief in the 5th Circuit litigation earlier this year, Inclusive Louisiana and the other challengers charged that the parish’s actions amount to an ongoing “pattern and practice” of discrimination and that a one-year statute of limitations following adoption of the 2014 land-use plan thus does not apply.
They added that Barbier relied on “a flawed and cramped analysis” of legal standing that failed to note the parish’s regulatory role in greenlighting the construction of plants on top of “sacred cemeteries” of current residents’ enslaved ancestors in alleged violation of federal law.
In their response, St. James Parish attorneys reiterated that the coalition has failed to show any traceable connection between the local government’s actions and a “purported inability to access and worship on private property where unmarked burial sites may be located.”
Nor are there any continuing violations following adoption of the 2014 zoning blueprint, they wrote. “All subsequent actions are merely the implementation of the previously codified plan.”
