Appeals Court Hears Arguments in Case Claiming Environmental Racism in Cancer Alley Zoning

Black residents of Louisiana’s St. James Parish asked a federal appeals court on Monday to overturn a lower court ruling and give them the opportunity to argue at trial that local land-use policies are racist and have concentrated polluting industrial plants in their neighborhoods.

Lawyers representing the groups Inclusive Louisiana and Rise St. James and the Mount Triumph Baptist Church presented oral arguments on Monday before a three-judge panel in New Orleans. They offered details supporting their claims that systemic racism led to land-use policies that directed heavy industry and chemical plants to two predominantly Black parish districts and away from three predominantly white districts.

During the hearing, lawyers representing the parish government defended the decision last year by U.S. District Court Judge Carl J. Barbier, whose ruling dismissed the Black residents’ claims in part by saying they had waited too long after a controversial 2014 land-use plan was adopted to file their lawsuit, and that they didn’t have legal standing.

The lower court also ruled that the environmental advocates had not sufficiently alleged an “injury” to their religious rights, reasoning they could not show the parish government was to blame for a lack of access to the graves of their enslaved ancestors on private, industrial property.

The three judges hearing the appeal—Patrick E. Higginbotham, Carl E. Stewart and Catharina Haynes of the U.S. Fifth Circuit Court of Appeals—will consider the oral arguments and other court filings in deciding whether to send the case back to Barbier for a trial. Higginbotham was nominated by the late President Gerald Ford, a Republican, in 1975; Stewart, by former President Bill Clinton, a Democrat, in 1994; and Haynes, by President George W. Bush, in 2007.

The original lawsuit traced Black history since European settlement in the 1700s through the legacy of slavery and post-Civil War racism. It aimed at practices it claimed have benefited white people with large landholdings at the expense of long-marginalized Black residents, including the parish’s first-ever land-use plan. 

The lawsuit claimed that the 2014 plan had effectively codified an existing practice of discriminatory behavior toward their neighborhoods.

The Center for Constitutional Rights, based in New York, and the New Orleans-based Tulane University Environmental Law Clinic are counsel for the plaintiffs.

Before the hearing, two leaders of Inclusive Louisiana expressed hope that the Fifth Circuit would allow their lawsuit to go forward. If not, they said they’d press on with their fight.

“We’re hoping that they will see the way we see it—that the Civil War has never been over,” said Gail LeBoeuf, co-founder and co-executive director of the group. “We can probably take this case to the Supreme Court if we have to.”

That may be necessary, she added, given a recent federal court ruling in a separate matter that effectively bars the U.S. Environmental Protection Agency from pursuing civil rights claims in Louisiana. The ruling bans EPA from addressing violations involving disparate impacts by race—a major problem in Louisiana’s “Cancer Alley”—that don’t include proof of intentional racism.

Cancer Alley is a 130-mile stretch along the Mississippi River from New Orleans to Baton Rouge that is dotted with more than 200 industrial facilities, including oil refineries, plastics plants, chemical plants and other factories. Their harmful air pollution endangers residents’ health.

The lawsuit described one parish zoning category, “Existing Residential/Future Industrial,” as a “racial cleansing plan.” The parish sought, but failed, to get that language stricken from the complaint.

Barbara Washington, another co-founder and co-executive director of Inclusive Louisiana, described a parish where chemical plants and their pollution are driving residents in Black areas away.

“We can’t breathe now, and more and more [chemical plants] are trying to come in,” she said in an interview. “We are being phased out. We are trying to fight for our community, for our loved ones, for our future. But we see so many things that have left us. We had a school; they’ve taken that from the area. We’ve had a senior center; they’ve taken that from the area. We’ve had stores; they’ve taken that from the area. We’ve had banks; they’ve taken that from the area. So we see that we are being a sacrifice zone for industry.”

Ban on Solar Farms but Not Chemical Plants

On Monday, at times, the judges seemed skeptical of both sides of the case. Haynes, for example, questioned how the county officials could be responsible for a lack of access to graves on private property, just by issuing a land-use permit.

“If the state gives Mr. X a driver’s license and he drives off and runs into someone, that doesn’t mean the state is liable for that, right?” she asked.

Jack Dean, a Tulane University student attorney representing Rise St. James, countered by saying that land-use permits aren’t comparable to driver’s licenses, where there is no direct connection between the issuance of a license and a motor vehicle accident. Land-use permits, on the other hand, can allow an industrial plant to be constructed on sites where cemeteries are found. “There’s direct traceability there,” he said, referring to a legal connection between parish zoning decisions and the fate of burial sites. 

But when attorney Carroll Devillier Jr., representing the parish, argued that a statute of limitations on suing over the 2014 land-use plan had passed, Haynes pushed back. “You can still have discrimination even behind an initial act,” she said. “I am not saying whether I agree or disagree,” but then asked, “If you fail to sue within a year, you can be discriminated against for the rest of eternity?”

And even if a statute of limitations is in effect, Haynes noted that the plaintiffs have argued they were damaged by more recent actions that arose out of earlier land-use decisions. One such action was a moratorium that parish officials adopted on solar farms. When Black residents requested a moratorium on new chemical plants, local officials rebuffed them.

Devillier countered by saying the solar moratorium was applied parish-wide, affecting Black and white residents alike, and that there was never any official action on the request for a moratorium on industrial plants. 

“There was no alleged official act. It was never placed on an agenda and was never considered,” he said.

Even though the solar moratorium was applied parish-wide, it was done at the request of white residents, said Pam Spees, a senior staff attorney at the Center for Constitutional Rights.

Spees noted that although the 2014 plan was amended in 2018 to remove some of its most obvious discriminatory policies, “the parish continues to follow the blueprint set out in 2014.” 

When asked by Higginbotham what legal remedy the plaintiffs are seeking, Speed said they want to stop new heavy industry from coming to the Black communities of St. James Parish.

Lawsuit Brings “Much-Needed Attention” to Zoning Injustices

Craig Anthony (Tony) Arnold, a land-use and property rights lawyer at the University of Louisville’s Louis D. Brandeis School of Law, described the lawsuit as “important and pathbreaking.” 

He said the lawsuit amounts to a “litigation assault on decades-long systematic patterns and practices of multi-faceted discrimination against Blacks by the St. James Parish local government,” and an example of a problem that exists in many communities.

Racial injustices in land use in the U.S. persist because of the profound impacts of more than a century of practices like exclusionary zoning, redlining, deed restrictions, racial disparities in industrial zoning and infrastructure inequalities, said Arnold, co-author of a forthcoming book from Cambridge University Press called “Racial Justice in American Land Use.”

He said the plaintiffs in the St. James case have reasonable arguments that meet the legal requirements for a valid lawsuit involving damage to property and religious rights.

But Arnold cautioned that the Fifth Circuit is “notoriously conservative” and “hostile to both racial justice and environmental justice lawsuits like this one.” The plaintiffs “ought to be able to pursue their case, but I suspect that they are going to be prevented from doing so by a judicial system and set of legal rules that reject these kinds of cases.”

Still, Arnold said, the plaintiffs’ lawsuit has brought “much-needed attention to their ongoing struggles against racial injustices in St. James Parish and may serve to mobilize further political and social action.”

The parish legal counsel brought up the racial cleansing term on Monday, though it did not prompt a discussion as it did in the lower court.

Last November, Barbier refused to excise certain elements of the complaint that parish officials had objected to, including describing the parish’s zoning decisions as “racial cleansing,” on grounds they were “scandalous,” derogatory and could prejudice a jury.

“Other allegedly scandalous allegations include several references to slavery and white supremacy throughout the complaint,” Barbier wrote in his November ruling.

But Barbier concluded that “although some of the specific ‘scandalous’ language in the complaint may offend Defendants’ sensibilities, Defendants did not attempt to identify in what way they would be prejudiced if the Court did not strike the allegations.”