Now we know more about why the Environmental Protection Agency last year suddenly punted on one Louisiana case trying to expand its powers beyond its legal authority, thanks to a similar case initiated by Republican Gov. Jeff Landry.
Last week, a federal district court blocked the EPA from creating rules that would allow use of disparate impact requirements in its decision-making process. This process utilizes a disparate impact study, which assesses whether proposed actions that may have differential impacts on protected classes under Title VI of the Civil Rights Act and assumes foundationally that significant differences must connote racist intentions deemed illegal.
Over two decades ago the U.S. Supreme Court instructed the EPA that it couldn’t impose this requirement, but only at the tail end of the Republican Pres. Donald Trump Administration did it issue a repeal. But before the rule became final, predictably the new Democrat Pres. Joe Biden EPA dropped it. Illegally imposing the rule threatens, in this instance, hundreds of millions of dollars in state grant money from the federal government because, as part of its role in approving these, EPA insists on including the language that the state must follow.
That led to a special interest group ideologically opposed to chemical facilities in its neighborhood, RISE St. James, lodging a complaint that used disparate impact as a justification to curtail development of these facilities. Louisiana argued that doing this violated statute in that it constituted reverse discrimination, i.e. to conjure a power not granted by statute made for an illegal race-based approach, where statute only allowed race-based solutions in the case of intentional discrimination and not simply on disparate outcomes as an indicator assuming that.
The court agreed with the state that the EPA showed no reluctance to trying to impose such a standard again, and so enjoined it. Landry launched the case (GOP new Atty. Gen. Liz Murrill pushed it across the goal line), which proved to be his last solo victory in that office (along with other states, just as he exited office he also beat the EPA in another case), which will have ramifications nationwide as the EPA now can’t overstretch its authority anywhere in overseeing use of federal grant monies.
But an interesting side note to that case resonates both to a case against the state the EPA abandoned last summer and to yet another now overseen by Murrill still working its way through the courts. The only part that the state didn’t prevail upon was getting the court to declare that the EPA had illegally coordinated with an interest group, the Sierra Club, in having the case play out.
It turns out that the state’s suspicion that coordination of the Biden EPA with sympathetic private parties, spanning not just interest groups but journalists, was much wider. Additionally, attorney general Landry was, and now Murrill is, pursuing another suit against the EPA for failure to respond to federal Freedom of Information Act requests detailing communications between it and these parties. The state asserts that the EPA is stonewalling production of these records, with the request going back a couple of years surrounding previous efforts that the EPA made to try to bludgeon the state with its permitting of chemical producers from expanding their footprints on the basis that the attempts constituted “environmental racism.” This alleged that the state’s decisions were a form of illegal racial discrimination based upon the alleged impact the subsequent activities would have on protected classes under the Civil Rights Act.
Landry stepped up to the plate and sued the EPA for acting on the complaint, asserting that it exceeded its authority under federal and in the process delegated authority to special interest groups. Within a month, the EPA abruptly closed its investigation without any action – an unusual resolution, since with almost every case it typically extracts concessions. At the time, speculation was it had such a thin case using environmental racism as a justification that if the case continued the judiciary could rule the EPA had exceeded its authority. The recent ruling partially addresses that issue insofar as to the use of disparate impact requirements.
Yet in light of the recent ruling, back then another and perhaps even greater motivation existed for Biden’s EPA to fold up – evidence of coordination with outside sympathetic parties. Keep in mind that only weeks earlier Landry and Missouri’s attorney general had succeeded in another federal court case where a number of federal agencies were enjoined from contact with social media companies after finding sufficient evidence that they had colluded to support Biden Administration policies and election activities. That case, after enforcement was put on hold by the U.S. Supreme Court, will be heard on Mar. 18.
Production of these public records not only would touch upon the communications with the Sierra Club subject to the other suit, but also apparently with a host of others entities, including special interests RISE St. James, Concerned Citizens of St. John, and the Deep South Center for Environmental Justice, as well as with journalists working with news outlets including the Times-Picayune, The Advocate, the Guardian, WGNO, WWNO, and MSNBC. These groups and outlets sympathize with climate alarmism and other politically leftist issue preferences on issues of the environment and race, and therefore are antipathetic to Landry.
Given the facts of the case before the Supreme Court – Murthy v. Missouri – it’s not unreasonable to think that the EPA engaged in similar tactics to collude with certain special interests and to influence certain media outlets in order to impose its will on Louisiana. Indeed, that behavior would be a variant of the “sue-and-settle” tactics first employed by Democrat Pres. Barack Obama and adopted by Landry’s predecessor Democrat former Gov. John Bel Edwards. With this, government would try to make end runs around the law by having a friendly special interest sue over a certain practice, then give the group its way – also preferred by government – through a court settlement. In the present variation with the EPA, it would come though administrative law processes, the complaint procedure.
And maybe that’s another reason why the complaint last summer was dropped like a hot potato, the threat of revelation that perhaps there exists deep ties among these groups, and even these journalists, with the Biden EPA and its agenda. Continuing it further might have exposed them and opened up litigation along the lines of Murthy v. Missouri.
Except that Louisiana and now Murrill don’t plan on stopping with discovery, through FOIA requests instead of as attendant to an administrative law case. Which is the right thing to do to ensure oppressive government with its beneficiary allies don’t run roughshod over democracy.
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