Environmental Justice ("EJ") is garnering increased attention under federal and state permitting policies nationwide. Currently, the Louisiana Supreme Court is being asked to weigh in on how and if EJ fits into the Louisiana Public Trust Doctrine. The Louisiana First Circuit Court of Appeal (“First Circuit”) recently determined that EJ is part of the state’s constitutional Public Trust Doctrine. The Louisiana Department of Environmental Quality (“LDEQ”) is now seeking cert on this issue. If the Louisiana Supreme Court grants cert, it could have major implications on whether and to what extent EJ analyses are required in Louisiana permitting decisions.

I.   The Louisiana Public Trust Doctrine and Environmental Justice

The Public Trust Doctrine, which is enshrined within the Louisiana Constitution, requires that the state ensure environmental protection “insofar as possible and consistent with the health, safety, and welfare of the people.” In the seminal case Save Ourselves, Inc. v. La. Env’tl Control Com’n, 452 So. 2d 1152, 1156 (La. 1984) (widely referred to as “the IT Case” because it related to a facility proposed by IT Corporation), the Louisiana Supreme Court observed that this is a “rule of reasonableness,” which requires an agency, before granting approval of a proposed action affecting the environment, to determine that adverse environmental impacts have been minimized or avoided as much as possible consistent with the public welfare.

EJ has been defined by EPA as: “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies,” with “fair treatment” meaning that “no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial operations.”

The First Circuit decision, discussed below, considered how these two doctrines interact under Louisiana law.

II.   Louisiana First Circuit Court of Appeal Decision

On January 19, 2024, the First Circuit reversed a lower court’s order and reinstated the Formosa Plastics facility air permits. Rise St. James v. Louisiana Department of Environmental Quality, 2023-CA-0578.  In September 2022, the district court vacated the facility’s air permits finding, among other reasons, that the LDEQ had not done a proper analysis under the Louisiana Public Trust Doctrine. In doing so, the district court opined that an EJ analysis was mandatory under the Public Trust Doctrine and that LDEQ’s EJ analysis was inadequate.

Although the First Circuit reversed the district court on nearly every point and reinstated the permits, it agreed that an EJ analysis was part of the Louisiana public trust duty applicable to state permitting, explaining: “we find the directives from the Louisiana Supreme Court in Save Ourselves,… which require consideration of ‘economic, social, and other factors,’ broad enough to include an analysis of [EJ], as defined by the EPA, ” i.e.  “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The First Circuit described that to meet this requirement an agency should first determine whether there are any adverse impacts, and then determine whether the impacts are disparate.

For the Formosa Plastics facility permits, the First Circuit held that LDEQ’s EJ analysis had fulfilled its duty—LDEQ found that, because the facility would meet the standards for criteria pollutants and toxic air pollutants, and because the facility would not increase the emission burden or associated risks in the surrounding community, there were no adverse impacts. While the First Circuit concluded LDEQ was not required to analyze disparate impacts because it had found no adverse impacts, the First Circuit noted that LDEQ’s analysis of disparate impacts was adequate. LDEQ took a multi-pronged approach, looking at past permitting decisions, emission trends, and cancer rates, and found that the emissions and rates were comparable to state averages.

III.   Petitions for Writ of Certiorari to Louisiana Supreme Court

On March 18, 2024, LDEQ and the permit challengers separately petitioned the Louisiana Supreme Court to overturn parts of the First Circuit’s decision.

LDEQ’s petition focuses entirely on whether the Public Trust Doctrine requires it to conduct an EJ analysis in permitting decisions, arguing that it does not. LDEQ acknowledges that under the Save Ourselves opinion, the Public Trust Doctrine is “a rule of reasonableness” that “requires a balancing process in which environmental costs and benefits must be given full and careful consideration along with economic, social, and other factors.” However, LDEQ argues that requiring an EJ analysis under the doctrine is too prescriptive; LDEQ should be given discretion on how to balance environment costs and benefits with economic, social, and other factors. It argues quoting Save Ourselves, that this “rule of reasonableness” standard “leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances.” Accordingly, LDEQ states that the First Circuit erred when it interpreted the Public Trust Doctrine to mean that LDEQ must conduct an EJ analysis in permitting decisions.

The petitions filed by the challengers of the Formosa permit focus on, among other things, the First Circuit’s interpretation and application of the standards set forth in the Public Trust Doctrine and the Save Ourselves opinion. They assert that the First Circuit failed to apply these constitutional standards requiring an evaluation of the “reasonableness” of LDEQ’s EJ analysis. Instead, the petition states, the First Circuit’s decision “entirely ignored key aspects of [EJ] present in this case, and reached numerous conclusions about the environmental impacts of the proposed Formosa project that do not follow logically from the agency’s basic findings.” Moreover, the EJ advocates’ petition provides that the First Circuit failed to correctly apply these constitutional standards when it held that “LDEQ’s purported compliance with its regulations also satisfied the agency’s heightened constitutional duty as a public trustee to avoid or minimize potential and real adverse environmental effects of the proposed facility to the maximum extent possible.”

IV.   Conclusions

If the Louisiana Supreme Court decides to grant cert, its holding will likely have major implications on whether an EJ analysis is required under the Louisiana Public Trust Doctrine, and if it is, under what circumstances and to what extent. However, based on the First Circuit’s ruling, permit applicants should currently continue to ensure a robust EJ analysis is undertaken and well-documented in the permitting record.

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Written on behalf of the Environmental Law Committee