The Louisiana Supreme Court has declined to review the First Circuit Court of Appeal’s ruling in Rise St. James v. LDEQ, essentially cementing the appellate court’s holding that an analysis of environmental justice (EJ) issues is required under Louisiana’s Public Trust Doctrine. The Supreme Court’s election to pass on the issue is particularly significant because challenges to Louisiana Department of Environmental Quality (LDEQ) permits must be brought in the 19th Judicial District Court, which is within the jurisdiction of the First Circuit Court of Appeal.
This matter arose when environmental groups challenged LDEQ’s air permits issued to a Formosa Plastics facility in St. James Parish. They challenged the permits on several grounds, including that LDEQ had not adequately considered environmental justice concerns when issuing the permits. The district court vacated the permits in September 2022, agreeing with the plaintiffs on several points, including that the agency’s environmental justice analysis was lacking.
LDEQ appealed the district court’s decision, arguing that its analysis and issuance of the permits was adequate and that it was not required to consider environmental justice under the Louisiana Public Trust Doctrine. In January 2024, the First Circuit reversed the district court’s ruling and reinstated the permits. However, in that ruling, the First Circuit held that an analysis of environmental justice is required because it is part of the “economic, social, and other factors” which must be considered under the Public Trust Doctrine. The First Circuit went on to analyze how LDEQ had considered EJ when issuing the Formosa permits and found that LDEQ’s analysis was adequate.
Shortly after the First Circuit ruling, the environmental groups and LDEQ filed petitions for writ of certiorari with the Louisiana Supreme Court. LDEQ specifically argued that the public trust doctrine does not encompass EJ, while the environmental groups argued that LDEQ’s EJ analysis was inadequate. On September 4, 2024, the Supreme Court summarily denied these petitions.
By denying the petitions, the First Circuit’s ruling that EJ analysis is required under the public trust doctrine stands. The final ruling also provides a framework of what an adequate EJ analysis includes—
- First, determining whether there are any adverse impacts, and
- Second, if there are adverse impacts, determining whether the impacts are disparate based on race, color, national origin, or income.
For a more thorough analysis of the EJ holding please refer to our previous blog article on the First Circuit’s decision, Louisiana Appeals Court Finds Environmental Justice Is Part of the Louisiana Public Trust Duty.
Based on the writ denial, industry should prepare for potential permit challenges based on the adequacy of EJ analyses under Louisiana law. While a federal court order issued in Louisiana v. EPA, prohibits EPA from enforcing some aspects of EJ in Louisiana under Title VI of the federal Civil Rights Act, Louisiana’s public trust doctrine is purely a matter of state constitutional law and is not covered by that injunction. Therefore, undertaking a robust EJ analysis that includes community engagement and ensuring that the agency considers the analysis and public input in the permitting record remain key steps in permitting a successful project in Louisiana.
For assistance in EJ matters in Louisiana, please contact Liskow attorneys Clare Bienvenu, Greg Johnson, Cherrell Simms Taplin, and Emily von Qualen and visit our Environmental Justice practice page.
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