Thick smoke rising from chimneys

Attorneys General from 23 States Petition to End EPA’s Use of Disparate Impact In Regulating Pollution

Attorneys General from 23 states have filed a petition for rulemaking with the Environmental Protection Agency demanding the agency stop using Title VI of the Civil Rights Act of 1964 when regulating pollution. The petition, the main signatory of which is Florida Attorney General Ashley Moody, comes on the heels of a decision in Louisiana v. EPA, No. 2:23-cv-692, 2024 WL 250798 (W.D. La. Jan. 23, 2024), where the EPA was enjoined from enforcing any Title VI based requirements on the state based on a disparate impact theory.

The Civil Rights Act prohibits intentional discrimination under Title VI, § 601: “No 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.”  When agencies have attempted to make a disparate impact case, which focuses solely on the consequences and outcomes of a party’s practices, rather than their intent, they have had to justify the same under Title VI, § 602.  That section provides the agencies giving “financial assistance … by way of grant, loan, or contract … (are) authorized and directed to effectuate (§ 601) … by issuing rules, regulations, or orders of general applicability.”  

In Louisiana v. EPA, Louisiana brought a civil action against the EPA, the DOJ, and the United States of America seeking declaratory relief, among other things, that the EPA’s and DOJ’s regulations purporting to impose disparate-impact-based requirements under Title VI are unlawful. The Louisiana v. EPA Complaint can be found here.

Louisiana made the argument that § 601 has been interpreted to only prohibit intentional discrimination and that the EPA cannot be allowed to effectuate § 601, which requires a showing of intentional discrimination, under § 602 with a standard that eliminates the element of intent from consideration. The court offered support for the state’s interpretation when it granted their preliminary injunction request and enjoined the EPA from enforcing any Title VI-based requirements on the state based on a disparate impact theory earlier this year.  The Louisiana v. EPA decision can be found here

The petition to the EPA relies heavily on both the injunction holding of Louisiana v. EPA, and the Supreme Court’s holding in Students for Fair Admissions v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023), for the proposition that the federal government cannot, by executive fiat, compel states to discriminate against their own citizens — which they argue enacting policy under a disparate impact framework requires them to do in governing to racial quotas, rather than ultimate environmental goals. The petition outlines the arguments as to why the regulations would not pass muster under strict security if disparate impact is ultimately challenged.

We will continue to monitor for any response from the EPA.

The complete petition for rulemaking can be found here.