For many years, the 85-mile stretch of chemical plants located in southeastern Louisiana and stretching from Baton Rouge to New Orleans has been nicknamed “Cancer Alley.” Home to approximately 83 chemical plants and 45,000 residents, who are predominantly low-income black families, the region’s high rates of cancer have been blamed on pollution from the plants.
Community advocates have fought long and hard for changes.
For many years, industries in the area have contended that claims of higher rates of cancer due to pollution in the region are inaccurate.
“That moniker has long been disputed by industry, given arguments about data on whether emissions — those have been considerably reduced over time — are cause-and-effect for cancer rates in the river region,” according to NOLA.com. “Poverty and low educational levels, cigarette smoking and poor diets — all of these things are contributors to cancer in the river parishes as they are everywhere else.”
In a 56-page letter dated October 12, 2022, the Biden administration’s EPA Office of Environmental Justice and External Civil Rights, Office of External Civil Rights Compliance (OECRC) sent notice to the Louisiana Departments of Environmental Quality (LDEQ) and Health (LDEH) that, because of alleged “actions or inactions,” the EPA would be investigating claims of environmental racism on behalf of “Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.”
The letter stated the Agency’s initial investigation presented “significant evidence suggesting that the Departments’ actions or inactions have resulted and continue to result in disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.”
Community activists were ecstatic about what appeared to be progress at last in their ongoing battle against pollution in the area.
At the time the letter was written, Dr. Chuck Carr Brown was the head of the LDEQ, and Dr. Courtney N. Phillips led the LDEH, but both have since resigned. And Louisiana filed a federal lawsuit to challenge the investigations in May.
“But now the EPA has abruptly closed its investigation without making findings, providing relief for the communities, or compelling Louisiana to make any commitments of its own,” Human Rights Watch (HRW) notes. “The EPA says it ‘actively engaged in regular informal negotiations for several months’ with the state agencies, yet no agreement was signed. The agency also highlighted other actions it has taken and will take in Louisiana to address toxic pollution.”
According to HRW, in a statement, Rise St. James President and Founder Sharon Lavigne said, “We are disappointed in the EPA. … We were hopeful because we thought we were going to win this.”
“The administration dropped its investigation into whether Louisiana officials put Black residents living in the industrial corridor at increased cancer risk,” adds NOLA.com. “Policymaking, which requires evidence, appears to have trumped politics.”
Investigation resolution
The EPA’s initial investigation centered on two complaints:
- Whether the LDEQ uses criteria or methods of administering its air pollution control program that have the intent and/or effect of subjecting persons to discrimination based on race in violation of Title VI of the Civil Rights Act of 1964 and the EPA’s implementing regulation at 40 Code of Federal Regulations (CFR) Part 7, Sections 7.30 and 7.35, including:
- The LDEQ’s acts or failures to undertake certain actions related to the Denka facility in connection with its air pollutant emissions and the predominantly black residents of St. John the Baptist Parish; and
- The LDEQ’s decision to reaffirm issuance of 14 new air permits for the Formosa facility and the predominantly black residents of St. James Parish.
- Whether the LDEQ has implemented and is implementing the procedural safeguards required under 40 CFR Parts 5 and 7 that all recipients of federal assistance must have in place to comply with their general nondiscrimination obligations, including specific policies and procedures to ensure meaningful access to LDEQ services, programs, and activities, for individuals with limited English proficiency (LEP) and individuals with disabilities, as well as whether the LDEQ has a public participation policy and process that’s consistent with Title VI and the other federal civil rights laws and the EPA’s implementing regulation at 40 CFR Parts 5 and 7.2.
In the OECRC’s resolution letter dated June 27, 2023, regarding issue 1.a., it says the EPA reports the following actions undertaken to reduce the impacts of chloroprene emissions from the Denka facility:
- On December 20, 2022, the EPA issued a consent agreement and final order (CAFO) under the Resource Conservation and Recovery Act (RCRA) ordering Denka to improve waste management practices to lower chloroprene emissions.
- On February 28, 2023, the EPA filed in federal court a Clean Air Act (CAA) Section 303 civil complaint against Denka to compel immediate measures to eliminate the imminent and substantial endangerment posed by its chloroprene emissions and address and mitigate the harm to public health. The EPA’s CAA Section 303 civil complaint and the OECRC’s Letter of Concern relied on data from the same chloroprene monitors and reached similar conclusions about cancer risk to residents living near Denka due to chloroprene emissions.
- On April 25, 2023, the EPA published a proposed rule under Section 112 of the CAA to significantly reduce emissions of toxic and other harmful air pollutants, including chloroprene and ethylene oxide (EtO), from Denka and other chemical plants nationwide. The proposed rule projects a 96% reduction to the number of people with elevated excess lifetime cancer risks as a result of breathing air toxics near these chemical plants. The EPA is required by court order, issued by the District Court of the District of Columbia in Texas Environmental Justice Advocacy Services, et. al. v. Regan, No. 1:20-cv-07733, to issue a final rule by March 29, 2024.
- For the community near the Denka facility in particular, based on the EPA’s fact-finding regarding the significant pollution exposure for this community, the Agency plans to conduct a cumulative impact assessment (CIA) in this area. This analysis, which isn’t under Title VI and wouldn’t impose any obligations on the state agencies, will include the totality of exposures to combinations of chemicals and nonchemical stressors and their effects on health, well-being, and quality-of-life outcomes. A CIA is a process of evaluating various types of data, including health and environmental data, at the same time to inform a decision. It helps characterize the current baseline cumulative health risks and burdens and the potential state of vulnerability or resilience of a community.
- The first step of the CIA process will be to convene a multi-stakeholder work group of locally affected parties that will create a charter. The charter will describe roles, responsibilities, goals of the CIA, deliverables, and a timeline for those deliverables. Community participation is critical to identifying problems and potential intervention and decision points to improve community health and well-being. Participation by the LDEQ and the LDH, while not required, would be valuable in identifying problems and potential intervention and decision points to improve community health and well-being. The EPA has invited the LDEQ and the LDH to participate. The Agency is in the process of organizing the EPA resources that will be devoted to the CIA.
- The main work of the CIA will be to review and analyze available data to assess priority baseline exposures to both chemical and nonchemical stressors and effects of concern in the community. The CIA will identify and recommend but not require decision alternatives for mitigation that address stakeholder goals and assess projected effectiveness of different decision alternatives for meeting those goals. The CIA report will be a plain-language report that includes the purpose of the CIA and the analytical methods used, a prioritization of exposures and effects to mitigate, a description of the development and assessment of decision alternatives, a summary of the main findings, voluntary recommendations for prioritized mitigation actions, potential implementation steps and estimated timelines, and voluntary recommendations for monitoring to ensure the goals are being met.
- Finally, to promote greater transparency regarding inspections of the Denka facility and actions taken because of the inspections, EPA Region 6 provides a variety of information on its public website, LaPlace, St. John the Baptist Parish, Louisiana, including final RCRA inspection reports, the RCRA CAFO, air monitoring data, and the EPA’s CAA Section 303 imminent and substantial endangerment civil complaint.
“In sum, based on the totality of actions discussed above, OECRC is administratively closing its investigation and no further action will be taken regarding Issue 1. a. under Title VI.13,” the resolution letter says.
For issue 1.b., where complaints primarily centered on proposed EtO emissions from the planned Formosa facility:
- On September 8, 2022, Louisiana’s 19th Judicial District Court Parish of East Baton Rouge in Rise St. James et al. v. LDEQ, Docket No. 694,029, vacated the Formosa permits issued by the LDEQ and remanded them to the LDEQ, which has appealed that decision.
“After careful consideration, OECRC has determined that, given the pending state court litigation, whether and when the Formosa facility will receive the permits, and the levels of EtO and other hazardous air pollutants it will be allowed to emit, OECRC is administratively closing its investigation and no further action will be taken regarding Issue 1. b. under Title VI,” the resolution letter states.
Regarding Issue 2, the “LDEQ expressed interest in addressing its procedural safeguards, including through the recommendations identified by OECRC during Informal Resolution Agreement discussions. OECRC is available to work with and provide voluntary technical assistance to LDEQ to address its procedural safeguards. OECRC is administratively closing its investigation of Issue 2.”
What does the data reveal?
A study published by Tulane University dated January 13, 2022, states:
“We investigated how cancer incidence relates to cancer risk from toxic air pollution, race, poverty, and occupation across Louisiana census tracts, while controlling for parish-level smoking and obesity rates, using linear regression and Akaike information criterion model selection. We used the most recent cancer data from the Louisiana Tumor Registry (2008–2017), estimates of race, poverty, and occupation from the US Census Bureau’s American Community Survey (2011–2015), and estimated cancer risk due to point sources from the (EPA’s) 2005 National Air Toxics Assessment (accounting for cancer latency).
“Further analysis revealed that the tracts with the highest (i.e. top quartile) proportions of impoverished residents (or Black residents) were driving the association between toxic air pollution and cancer incidence. These findings may be explained by well-established disparities that result in greater exposure/susceptibility to air toxics in Black or impoverished neighborhoods. Regardless, our analysis provides evidence of a statewide link between cancer rates and carcinogenic air pollution in marginalized communities and suggests that toxic air pollution is a contributing factor to Louisiana’s cancer burden. These findings are consistent with the firsthand knowledge of Louisiana residents from predominantly Black, impoverished, and industrialized neighborhoods who have long maintained that their communities are overburdened with cancer.”
According to WWNO, the Tulane study found that “poor neighborhoods with high levels of air pollution accounted for about 85 new cancer cases per year. The average annual cancer rate in the state’s poor neighborhoods with high levels of air pollution is 502 cases per 100,000 people, compared to the state average of 480.3 cases per 100,000 people.”
The data from this study supports the conclusion that cancer rates are higher in this region of Louisiana.
Why did the EPA back down in its highly publicized investigation into civil rights violations in Louisiana?
After the OECRC investigation began and negotiations with the DEQ and the DEH began, draft agreements included many changes to the process Louisiana uses to approve new industrial plants, including:
- Requiring state regulators to assess current levels of pollution to determine if the area already exceeds certain levels before adding new permits for additional sources of pollution in the area,
- Adding community involvement to the process, and
- Requiring that officials provide evidence that emissions won’t disproportionately impact people of color both before and after operations begin at a new facility.
“The Title VI statute states that no person should, on the basis of race, color, or national origin, be subject to discrimination under any program that receives federal funding,” according to Grist. “The provision is wide-reaching, covering hundreds of thousands of programs across the country and governing decisions as diverse as where a road can go or who can get treatment at a hospital. But in the environmental space, it’s been largely underutilized, with the EPA routinely failing to respond to dozens of cases within the 180-day period required by the law.”
Multiple sources report that negotiations between Louisiana regulators and the EPA soured at some point, which culminated in Louisiana’s attorney general filing suit against the EPA in late May.
Louisiana’s case hinges “on the EPA’s ability to pursue actions based on ‘disparate impacts,’ or the idea that a policy or agency decision can disproportionately harm a specific group of people, regardless of whether or not that harm is intentional,” Grist adds.
Multiple analysts agree that the legal arguments raised by Louisiana are unlikely to have any impact on Title VI rights, which leaves a great deal of confusion regarding the EPA’s decision to throw in the towel and close the investigation.
In its letter announcing the end of the investigation, the OECRC committed to addressing concerns from residents through other means.
“But residents told Grist that those measures do not cover the totality of their concerns, and that a major benefit of the Title VI process is its speedy timeline: While court cases can drag on and emissions standards can take years to implement, a resolution of the complaints may have granted communities much faster relief from toxic emissions,” continues Grist.
“I think the reason EPA’s Title VI program is so hamstrung is because it is so directly butting up against corporate interests,” said Claire Glenn, a criminal defense attorney with a background in civil rights law, according to Grist.
Advocates say this isn’t the end of the battle; it’s merely a roadblock that will be overcome.
“We come from a long line of people who fought,” said Joy Banner, an activist and longtime resident of the region, Grist reports. “This is just one little hill that we have to overcome — but ultimately I see us heading to the mountain, and victory is the mountain.”