by Leyla Bakhoukh-Choy
This blog is part of the ‘Environmental Justice and the Law – A Student Blog Symposium.’
Take a deep breath. Now imagine the air you just breathed in is carcinogenic. This may sound like the premise of a dystopian novel, but for residents living in the communities along the banks of the Mississippi River,between New Orleans and Baton Rouge, this is their everyday reality. This 85-mile stretch of communities is colloquially known as ‘Cancer Alley’ due to the high rates of cancer that residents face. The toxic pollution emitted from the over 150 petrochemical plants and refineries in these communities is to blame for these high cancer rates. This blog examines how the law addresses and facilitates environmental injustice through the lens of environmental racism. It will conclude that, ultimately, whether the law addresses or facilitates environmental racism is heavily contingent on judicial interpretation.
Conditions Faced by Residents of Cancer Alley:
From September 2022 to January 2024, the NGO Human Rights Watch interviewed 37 Cancer Alley residents to ascertain the effect the petrochemical plants had on residents. Miscarriages, infertility, severe respiratory ailments, and cancer were described to be commonplace. This is not all. In an interview with University of Connecticut Professor Merrill Singer, a woman spoke about seeing the skin on her 6-year-old son’s hands and toes come off after bathing him. Inhabitants of St James Parish, one of the many communities in Cancer Alley, recount yellow-coloured rain, air reeking of chlorine, and children covered in skin rashes after playing outside. Another community in Cancer Alley is the town of Reserve, located in St John the Baptist Parish, where the risk of cancer is 50 times the national average. A few miles away, still in St John the Baptist Parish, is the town LaPlace. In this town sits Fifth Ward Elementary School, and a “few blocks away” is Pontchartrain Works facility, a chloropropene-emitting plant owned by the Japanese chemical company Denka. In 2010, the Environmental Protection Agency (EPA), the US environmental regulatory body, concluded that chloroprene was likely carcinogenic to humans. Yet these predominantly Black elementary school children continue to play and learn at Fifth Ward Elementary School, unaware that they are risking their lives by doing so. Mary Hampton, a resident of St John’s Parish, describes how “almost every household” has someone who has battled or died from cancer. From the picture painted above, it is clear that the petrochemical plants and refineries that have infiltrated the communities in Cancer Alley have turned the lives of its inhabitants into “a horror story.”
What Draws Petrochemical Companies to Cancer Alley?
Many factors draw petrochemical companies to the communities that now comprise Cancer Alley. For one, Louisiana has one of the largest reserves of oil and natural gas in the Western Hemisphere. The massive tax breaks given to these companies also play a heavy part. Gianna St. Julien, a researcher at Tulane Environmental Law Clinic, estimates these tax breaks amount to nearly 1 billion dollars over the last 12 years. This highlights how, for petrochemical companies, the land and environment are a resource to be used for corporate and monetary gain.
In contrast, for the residents of Cancer Alley, the environment is their home. For the 40% of Cancer Alley residents who are Black, the environment is not just their homes but a “sacred” place, one that has been passed down to Black residents from their ancestors who worked hard to buy these lands to create a better future for themselves. This is because, before the arrival of petrochemical plants, Cancer Alley was known as “Plantation Country” due to its sugarcane, cotton, and indigo plantation sites. These were built by slave labour. Following the Civil War and the abolition of slavery in 1863, the federal government began allocating these farmlands to the newly freed slaves. Owning a stretch of land in this area was a “dream” for many of these former slaves, and yet, due to the rapid arrival of industrial corporations in the 20th century, this dream has now been distorted into a “nightmare.” This demonstrates how, in treating the environment as just a resource to generate profit, the petrochemical industry not only threatens the health of Cancer Alley residents but also destroys the heritage, history, and meaning they associate the land with. Now, over 200 of the former sugar plantations are occupied by petrochemical plants, highlighting how nothing has changed as Black Americans continue to bear the brunt of commercial production. I argue that this is also environmental racism and injustice.
What is Environmental Justice and Environmental Racism?
The EPA defines environmental justice as the “just treatment and meaningful involvement” of all people, regardless of their characteristics, concerning environmental law, policy, and regulation. In this way, the environmental justice movement challenges the conception that the environment is just nature and thus removed from social, economic, and political issues. As Urban Planning and Environmental Policy Professor argues, environmental justice has “redefined what environmentalism is about” by purporting that it is everything: “where we live, work, play, go to school, as well as the physical and natural world.” The environmental justice movement emerged from the actions of civil rights activists in 1982. Environmental racism, or racial injustice, is a facet of environmental justice. Dr Bullard argues that policies or practices that differentially affect individuals or groups based on race are deemed to be environmentally racist.
Is Cancer Alley an Example of Environmental and Racial Injustice?
Research funded by the EPA in 2018 revealed that non-white Americans living below the poverty line were more likely than others to live near toxic pollution. Indeed, most residents of Cancer Alley who live near petrochemical plants are Black and low-income. In Reserve, for instance, 60% of the population is Black, and the average per-capita income of $18,763 is around 40% less than the national average. In Cancer Alley, 40% of the population is Black, as mentioned above. Individuals in ethnic minority and Black communities are more at risk of developing cancer than those in white-dominated communities. So, is it just a coincidence that petrochemical industries have chosen the communities in Louisiana, with their high population of Black and ethnic minorities, as the sites for their chemical plants? Were tax breaks and oil reserves the only incentives?
Staff Attorney Josephine Rosene argues that it is not. Instead, polluting industries intentionally chose these predominately Black and low-income communities due to the “limited resources” they have to fight back against polluters, compared to affluent white communities. Consequently, although Jim Crow laws, which enabled industries to pollute Black communities due to their political powerlessness, were abolished in the Civil Rights Act of 1964 and Voting Rights Act of 1965, their shadow remains. Environmental Studies Professor David Naguib Pellow characterises environmental justice as not just “one single harmful action” but a “complicated history of political, social, and economic interactions” that cause environmental racism. Slavery, Jim Crow laws, and the economic disadvantages faced by Black Americans have all contributed to the current treatment of Black residents in Cancer Alley. For this reason, I argue that Cancer Alley is an example of environmental racism and injustice.
How Does the Law Address this Environmental Racism and Injustice?
The EPA protects people against health risks and develops and enforces environmental regulations. Title VI of the Civil Rights Act of 1964 is an old tool but also the latest weapon the EPA is using to address racial and environmental injustice. This federal law prohibits anyone who receives federal funds from discriminating based on race or national origin. Where discrimination is proven, the “federal agency providing assistance” can suspend or terminate funds and impose additional requirements to prevent future discrimination. When a polluting corporation wants to build a facility in Louisiana, it must obtain a permit from the Louisiana Department of Environmental of Environmental Quality (LDEQ) under the Clean Air Act. Yet a 2022 study by Research Scientist Dr Kimberley Terrel and Researcher Gianna St. Julien revealed that the LDEQ’s permitting standards allowed industrial emissions to be 7 to 21 times higher in communities of colour.
Consequently, in 2022, on behalf of St John the Baptist Parish residents, environmental law NGO Earthjustice filed a Title VI complaint to the EPA. This was on the basis that when issuing permits, the LDEQ had committed racial discrimination, contrary to Title VI. Subsequently, the EPA opened a civil rights investigation into Louisiana’s permitting practices.
What did the EPA Uncover?
Following their investigation, the EPA discovered that Black residents of Cancer Alley were disproportionately exposed to cancer risks from the toxins in the air. In their 56-page letter, they revealed that for the population of St John the Baptist Parish, where 90% of residents at the time identified as Black, the risk of cancer was 5.5 times higher than for those living elsewhere in Louisiana. By disproportionately issuing permits, the EPA argued that the LDEQ’s actions were discriminatory. However, as there was no evidence that the discrimination was intentional, rather than claiming that Black residents had been directly discriminated against, the EPA argued that they had faced unintentional discrimination. This is called the “disparate impact standard.”
What did the EPA Propose?
This finding enabled the EPA to propose an agreement for the LDEQ to analyse whether people of colour were disproportionately impacted before issuing an industrial permit. Specifically, it required the LDEQ to conduct an in-depth analysis of each type of pollution emitted for each industrial permit application. Even more significantly, if a company was deemed behind an activity with disparate impact, the LDEQ could deny a permit or request they find alternative sites for their facilities. Director of Law and Policy at the Deep South Centre for Environmental Justice, Monique Harden, commented how this was a “meaningful reform.” Indeed, it was one made possible by Title VI of the Civil Rights Act. Consequently, it may be argued that by preventing the discrimination of ethnic minorities, Title VI demonstrates how the law can be used to address environmental racism. The fact that this was achieved through civil rights regulation rather than environmental regulation highlights the flexibility of the law and how it can be used to address issues that may not seem directly relevant at first glance.
Giving a Voice to the Voiceless, But to What Extent?
Title VI of the Civil Rights Act not only helps remedy environmental and racial injustice by providing the EPA with a tool to hold the LDEQ accountable but also by giving a voice to the voiceless – specifically by enabling residents of Cancer Alley to voice long-held concerns over the health impacts of petrochemical plants’ toxic air emissions. Concerns that government officials and petrochemical companies had ignored as being based on “faulty science” and “totally theoretical.”
However, the extent to which Title VI gives a voice to the voiceless is limited. This is because the 2001 Supreme Court case of Alexander v Sandoval outlined that private individuals cannot make disparate impact allegations. Instead, they must rely on regulatory bodies such as the EPA and their “complicated” and “slow”administrative review process to bring forward allegations on their behalf. The fact that the EPA rarely uses its authority to withdraw funding highlights the ineffectiveness of the law in remedying environmental racism. Evidently, the lack of accessibility for private individuals limits the extent to which Title VI can address environmental racism and injustice.
How Does the Law Exacerbate Environmental Racism and Injustice?
Before the EPA could make any positive change through their agreement, they dropped their investigations. Environmental activist Sharon Lavigne argues this was due to the lawsuit Louisiana Governor Jeff Landry filed, challenging the EPA’s allegations. In his lawsuit, he argued that Title VI does not enable federal agencies to use the “disparate impact standard” and act on the basis that Black residents had unintentionally been discriminated against. Instead, Title VI only prohibits intentional discrimination. Landry claimed that this was because allowing the EPA to target disparate impacts would turn the agency from “one purely concerned with environmental protection” into a “social justice warrior.” Additionally, it would “compel” the state to discriminate based on race, specifically, the “right” racial groups.
In advancing this argument, Landry, and by extension the state, demonstrate that they do not wish to acknowledge the concept of environmental justice. They do not want to understand that the environment is not some separate entity but rather intertwined with the race, gender, and socioeconomic class of its inhabitants. They fail to realise that Title VI is not limited to only protecting minority ethnics against discrimination, but the discrimination of anyone “on the ground of race, colour or national origins.” The reason the EPA argued that Black residents were feeling the disproportionate impacts of petrochemical pollution, more so than white residents, but this did not mean that any pollution white residents experienced was acceptable. In advancing this argument, Landry and the state shut their eyes to the truth. The fact that through their lawsuit, the state was able to stop the reforms that would have taken place under the EPA’s agreements demonstrates how the law can also be used as a tool to facilitate environmental racism.
What Did the Court Say?
To the EPA’s dismay, despite dropping their disparate impact allegations, Landry – and, by extension, the State of Louisiana- continued to pursue their lawsuit until it reached the district court in January 2024. Here, Judge Cain asserted that Title VI did not empower the EPA and the Department of Justice to impose disparate impact-based requirements against the State of Louisiana, as the Civil Rights Act does not mention a disparate impact standard. However, he fails to acknowledge that the reason it is not mentioned is because it was formed through case law. Senior Policy Counsel for the Legal Defence Fund Amalea Smirniotopoulos argues that the disparate impact standard is a tool to ensure we “live up” to the country’s promises. Yet through his judgment, Judge Cain has made this tool hollow.
What is interesting to note is that following the judgment, the Justice Department reaffirmed Federal Agencies’ right to use the disparate impact standard. This suggests that the disparate impact standard may still be useful in addressing environmental injustice. Another point to note is that in his judgment, Judge Cain asserted that “pollution does not discriminate,” and if a decision maker needs to consider race, they have “participated in racism.” Just like Landry, Judge Cain demonstrates that he does not acknowledge the concept of environmental racism. This may indeed have influenced his decision. Political analyst Idalmis Vaquerosupports this, arguing that the Louisiana case continues the strategy to appoint more conservative judges. Even so, this case demonstrates how the law can also be used to facilitate environmental racism. This is because, ultimately, the extent to which the law can address environmental racism is contingent on the courts’ interpretation.
Why are the State and Courts so Deferential to the Petrochemical Industry?
Why is it, then, that the court and state were so quick to contest the EPA’s submission that the LDEQ was authorising permits in a discriminatory manner? It will not surprise many that the answer lies in economic benefit. In 2021, the industry supported 346,710 total jobs, accounting for 13.1% of Louisiana’s total employment, and provided $25.8 billion in labour income to the state. One could argue that although Black residents are reaping the harms of the petrochemical plants in their backyards, this is not without any benefit.
However, a closer inspection of the employment demographics in Cancer Alley demonstrates that it is without benefit. Research led by a Research Scientist at the Tulane Environmental Law Clinic, Dr Kimberley Terrell,revealed that the majority of jobs in Cancer Alley go to white workers. The highest disparity was in St John the Baptist Parish, where despite people of colour representing nearly 70% of the working-age population, they comprised only 28% of the workforce and 19% of higher-paying jobs. Contrastingly, it is on the other side of the parish – where petrochemical industries are less populated, and the community is predominately white – that most of the homes of employers and employees of the petrochemical industries in Cancer Alley can be found. This once again highlights the disproportionate impact pollution has on minority ethnic residents of Cancer Alley, a notion the court and state have ignored.
The fact that Black Americans only experience the harms of the petrochemical industry whilst others, notably White Americans, reap the rewards is not only an example of environmental racism but also distributive injustice. This is the notion of an “inequitable” distribution of resources, benefits, and burdens. In this case, the benefit of employment and the burden of poor health. Cancer Alley, and by extension, the Black communities within it, have become “sacrifice zones” for the economic and material benefit brought by the petrochemical industry. How could the lives of the elderly, women, and children of Cancer Alley ever compete?
Conclusion and Recommendations:
This blog post has explored how law is a tool that can be used to both address environmental racism and facilitate it. To ensure it addresses environmental racism, I recommend that private individuals should be able to bring claims under Title VI without having to rely on the EPA. This would provide the residents of Cancer Alley with a voice. Additionally, codifying the disparate impact standard in the Civil Rights Act would ensure that those wishing to make a claim do not risk having their case undermined in court. However, this blog has asserted that, ultimately, whether the law addresses or facilitates environmental racism is contingent on judicial interpretation. The President nominates judges. Therefore, to ensure these judges acknowledge the concept of environmental justice, it is advised that US residents exercise their right to vote and vote for leaders who believe in the importance of environmental justice.