On June 28, at the end of a very long season of decisions from the Supreme Court of the United States, the court issued a ruling that limits the regulatory powers of the Environmental Protection Agency. While the full impacts of the court’s ruling in West Virginia v. Environmental Protection Agency, which broadly dealt with curbing greenhouse gas emissions from power plants, aren’t yet known, it’s clear that BIPOC frontline communities already contending with pollution from factories and subsequent increasing impacts of climate change, now have even fewer formal means of recourse or justice.
“[The case] certainly will affect our clients and it will affect our work because, frankly, we can tell the difference between an EPA that’s trying to act affirmatively to protect people and when it’s not, because our job is a lot harder, and we’re a lot busier, and we have to go to court a lot more when EPA doesn’t take a proactive role,” said Lisa Jordan, director of the Environmental Law Clinic at Tulane University, which assists Louisiana residents fighting polluting facilities in their communities.
The Supreme Court agreed with the arguments made by the 20 Republican-led coal mining states, namely West Virginia, a state that has long mined significant coal reserves for the country’s use, and now insists on carrying coal into the future despite the waning industry and grassroots insistence on a Just Transition. The court broke with its own precedent in making this ruling: A 2011 decision found the agency had the legal authority to regulate carbon monoxide emissions from power plants. But while the decision may not be surprising coming from a court that’s now comfortable overturning even its most significant precedents, the fact remains that it puts communities and the environment at greater risk for perhaps irrevocable harm. The ruling has further muddied the waters about the scope and scale of regulations the EPA will be able to issue and enforce at exactly the time when the agency is most needed—in 2020, U.S. power plants were responsible for 1,494,878,944 metric tons of greenhouse gas emissions.
The West Virginia case is particularly upsetting because the 2015 Obama-era rule being challenged, known as the Clean Power Plan, never actually went into effect since the Supreme Court stalled it in 2016. The plan gave states until 2018 to come up with a proposal to limit greenhouse gas emissions from power plants by 2030. After the Trump administration issued its own rule in 2019 and repealed the Obama administration’s rule, a District Court ruled that the initial rule was actually constitutional. Additionally, the Biden administration had announced plans to draft its own rule relating to power plant emissions, and the emissions standards laid out in the Clean Power Plan have already been reached because of market preferences in the energy industry.
Essentially, this was a case on what potential power the EPA should or shouldn’t have based on a rule no state was obligated to meet, with ramifications that extend far beyond West Virginia. And now, communities and environmental advocates nationwide will be forced to deal with the fallout without knowing whether or not any regulations they’re able to push through will last.
“There’s something deeply perverse about an interpretive principle that disables an agency from acting, especially on our worst problems,” said Lisa Heinzerling, a professor of law at the Georgetown University Law Center.
Living in a “political climate that minimizes the problem of pollution”
The EPA has long interpreted and issued restrictions on pollution according to the 1970 Clean Air Act, the federal law under which both the Obama- and Trump-era rules were written. The law was ambitious for its time and widely effective. Heinzerling calls it the “most successful piece of regulatory legislation in the United States.” But according to the independent Supreme Court analysis site, SCOTUS Blog, “even if the Clean Air Act addresses what (greenhouse gas emissions) and whom (power plans) the EPA can regulate, West Virginia writes, it doesn’t say how it can do so.”
In other words, even if the law allows for regulations, there’s no explicit indication of how those regulations can be upheld. And with its West Virginia decision, the Supreme Court has ruled that regulatory schemes should be left up to Congress, not the EPA alone. The court’s ruling undercuts the agency’s own goals outlined in its 2021 transition memo, which asserted the power of the Office of Air and Radiation to “initiate high-leverage rulemakings to accelerate the pace of decarbonization in major greenhouse gas (GHG) emitting sectors … [like] the power sector.”
Jordan has worked for many years assisting residents living in parishes in the Chemical Corridor of Louisiana, where along the Mississippi River between Baton Rouge and New Orleans, there are over 150 chemical plants releasing pollution into the air. But the now infamous ‘Cancer Alley’ wasn’t always this way, and the toxic changes to the landscape have taken place over less than the span of a human lifetime.
“When I was a kid you could go pick blackberries anywhere [and] smell flowers in the morning,” said Milton Cayette Jr, a lifelong resident of St. James Parish, which sits along the Mississippi River. “Life was simple then.”
Cayette and his parents raised animals and grew their own vegetables; he played softball and hung out with his friends. That changed in the 1960s and 1970s, when the state began welcoming the industry with tax reductions and a “political climate that minimized the problem of pollution.”
Louisiana continues to be one of the friendliest states to the chemicals production industry, says Naomi Yoder, a staff scientist with Healthy Gulf. The state’s Department of Environmental Quality (DEQ) rarely denies permit applications and state law bestows numerous tax breaks to the industry and boasts of lenient pollution regulations once a plant is operational, Yoder says. Even the EPA acknowledged how the state rolls out the red carpet for polluters in a 2011 report advocating for stricter oversight of state polluters, citing environmental harm from “a culture in which the state agency is expected to protect industry.”
Residents in Cancer Alley, a majority of whom are Black, report extremely high rates of asthma, cancer, and respiratory illnesses; in fact, seven out of ten Census tracts with the highest rates of cancer are located in Cancer Alley, which is also a historic site of American enslavement and the plantation economy. And while residents have been sounding the alarm on the health impact of chronic toxic pollution in their air and water, the future also holds more frequent and devastating climate disasters. It’s a cyclical battle residents are forced to contend with: a polluting industry that in a single generation can severely affect one’s bodily health and over multiple generations, contribute to the impacts of climate change that create and exacerbate hardship.
BIPOC communities already struggle with an EPA unprepared to tackle environmental racism
Since late 2021, renowned community organizer Sharon Lavigne has been living in a travel trailer. Her house is still devastated and in need of significant repairs due to Ida, a category 4 hurricane that touched down in August 2021.
“We really got damages and people are still not in their homes,” she said. “Some of them still have a tarp on their house, but I’m blessed to have a roof on my house.”
Like many of her neighbors, she’s been unable to rely on homeowner insurance for any support. Due to the large number of insurance claims filed after Ida’s destruction, at least seven insurance companies folded, forcing homeowners to enter this next hurricane season, which runs from June 1 to Nov. 30, without insurance. Nearly 100,000 Louisiana residents will be stripped of their insurance policies this summer, and Lavigne is one of them: GeoVera dropped her on June 20.
Climate change is a direct economic threat to BIPOC as well. On average, Black families leverage more debt to purchase homes and have lower wealth and incomes than white families, putting them in more economically precarious positions. Flooding and other consequences from storms also disproportionately impact Black residents. According to the Urban Institute, low-earning Black residents in New Orleans were more likely than low-earning white residents to experience unemployment in the aftermath of Hurricane Katrina, “creating a significant barrier to mobility and the ability to rebuild after the storm.” Now they’re being squeezed by the simultaneous threats of climate change, fleeing insurance companies, and a muzzled environmental regulatory agency with dwindling avenues for help.
The number of hurricanes that make landfall, brought by warming waters and storm systems, have increased every year since 2015. The storm system this year, according to Scientific American, “looks remarkably similar to the way it did in 2005, the year Hurricane Katrina crossed the Loop Current before devastating New Orleans.” The conditions are “cause for concern.” Storms aren’t just becoming more frequent, they’re becoming more severe.
Before Ida, the last time Cayette experienced a devastating storm firsthand was the 1965 Category 4 Hurricane Betsy when he was just 14 years old. Cayette would eventually go on to work for one of the area’s petrochemical plants, and later would organize with Lavigne against their political influence and pollution. Cayette has diabetes and prostate cancer, and his wife passed away from complications due to breast cancer. Hurricane Ida was devastating to Cayette, who was trapped in his house for two days because of trees that had blocked his driveway. Cayette, who uses a wheelchair, waited until volunteers helped him leave his property.
Severe storms cause more than just damage to land and property—they can also leave pollution in their wake, often from facilities in affected areas. Yoder and her colleagues at Healthy Gulf studied pollution data from state and federal records, finding that there were a total of 2,230 pollution events caused by Hurricane Ida, either directly or indirectly, including over 1 million pounds of air pollutants emitted from 48 instances of reported pollution. Many of these pollution sites were located along the Mississippi River, in Cancer Alley.
“[T]he situation starts to resemble intentional ‘sacrifice zones’ where people and ecosystems are discarded or regarded as lesser than others,” the Healthy Gulf report says. “The recklessness of the fossil fuel industry, and the lack of meaningful regulation of that industry, is evident since there are myriad pollution incidents that occur with every massive hurricane.”
Yoder explains that emissions standards are suspended when there’s a storm because regulatory agencies know that there will be increased pollution levels either due to leaks or a standard practice of burning up gas that’s built up to relieve pressure from a tank to avoid explosion. And while companies are required to report pollution after severe storms, even if they go over their permit levels, “there’s no penalty for that.” Meaning that when it comes to air pollution, Yoder explains, “mostly nothing happens” to the polluters.
The way the systems of industry, regulation, and federal environmental law are set up mean it becomes difficult to prove harm by air pollution in an area with many facilities because “you can’t pinpoint one,” Yoder said. And while the state government agencies maintain the lax status quo for industry, the recommendations for impacted residents are a catch-22. With acute air pollution, Yoder says, residents will be mandated to shelter in place, which is difficult if someone’s home has been destroyed in a hurricane.
“[The] EPA is now struggling with how to fit environmental justice into the statutes that it administers,” Heinzerling said. “I think the agency struggles, probably for some of the same structural reasons that we have these problems in the first place.”
BIPOC frontline communities already face an uphill battle with the EPA being ill-prepared to address compounded experiences of environmental racism. Now advocates have to plan how to protect their homes, knowing that the West Virginia v. Environmental Protection Agency ruling has rendered the EPA’s ability to regulate industries producing greenhouse gas emissions even more tenuous.
With a hamstrung EPA and a Congress stalled on significant steps to address climate change, the question facing at-risk communities and environmental advocates is what to do next. For some, this is just further proof that regulations were never going to force the industries to stop polluting their communities. Lavigne says she wants to “shut the plants down because they’re not going to follow the regulations,” and Yoder adds that with predictable pollution, even the promise of regulation isn’t enough. What can now be done in the wake of the ruling to restrict greenhouse gas emissions and other pollutants produced by companies and protect vulnerable communities remains to be seen.
