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Louisiana was open to Cancer Alley concessions. Then EPA dropped its investigation

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FILE - The Fifth Ward Elementary School and residential neighborhoods sit near the Denka Performance Elastomer Plant, back, in Reserve, La., Sept. 23, 2022. The Environmental Protection Agency spent more than a year investigating whether Louisiana's oversight of industrial air emissions discriminated against Black residents. The EPA's investigation ended, however, before it secured commitments from the state to strengthen its oversight.
FILE - The Fifth Ward Elementary School and residential neighborhoods sit near the Denka Performance Elastomer Plant, back, in Reserve, La., Sept. 23, 2022. The Environmental Protection Agency spent more than a year investigating whether Louisiana's oversight of industrial air emissions discriminated against Black residents. The EPA's investigation ended, however, before it secured commitments from the state to strengthen its oversight. (AP Photo/Gerald Herbert, File) Photo Gallery

For more than a year, the Environmental Protection Agency investigated whether Louisiana officials discriminated against Black residents by putting them at increased cancer risk. Federal officials said they had found evidence of discrimination and were pressuring the state to strengthen oversight of air pollution from industrial plants.

Now, a draft agreement obtained by The Associated Press shows that Louisiana health officials were open to stronger oversight, including looking at how new industrial plants could harm Black residents.

But the federal government dropped its investigation in June before it got any firm commitments from Louisiana. Advocates said it was a missed opportunity to improve the lives of people who live near refineries and chemical plants in an industrial stretch of the state commonly called “Cancer Alley.”

Experts say the Biden administration, facing a federal court challenge to the investigation, may have worried that a loss would limit its investigative power. But activists expressed concern that dropping the investigation weakened the administration’s fight against environmental discrimination.

Eric Schaeffer, executive director of the Environmental Integrity Project and former head of EPA’s Office of Civil Enforcement, reviewed the draft agreement Louisiana health officials edited and sent to the agency, reflecting the state of negotiations in late May.

“It’s just a shame that it’s basically, you know, gone,” he said.

Schaeffer added that community members are even less likely to see stronger regulations now that Louisiana voters elected Republican Jeff Landry as governor. As attorney general, Landry fought the EPA’s investigation.

After receiving complaints from environmental groups in 2022, the EPA opened a civil rights investigation into state regulators. Officials scrutinized the Louisiana Department of Environmental Quality, which reviews industrial permits, and the Louisiana Department of Health, which supplies information about health risks.

Among its initial findings late last year, EPA said state officials let a Denka polymer plant expose residents and children at a nearby elementary school to chloroprene, increasing their cancer risk, and health officials didn’t do enough to inform the public about that risk.

As part of the investigation, the EPA wanted to strike a deal with the state that would overhaul the review of industrial air pollution from factories there. The state had to agree to any changes.

The new document shows health officials were willing to analyze how new sources of pollution would make it more dangerous to live near existing industrial sites and detail how residents of different races and income levels would be affected.

That information can be powerful for activists who want to challenge permits, Schaeffer said.

Health officials, however, also proposed deleting significant parts of the EPA’s proposal, according to Deena Tumeh, an Earthjustice attorney who represented groups that asked the EPA to investigate. Health officials, for example, wanted the unilateral power to decide if and when they had to do the EPA-proposed analysis.

Tumeh called that idea “nonsensical” since state officials were already being scrutinized for allegedly ignoring health risks. Tumeh also criticized state officials for changing the language so they wouldn’t be forced to do anything if an analysis found a new project would hurt people.

Officials also crossed out an EPA proposal that Louisiana appoint a scientific integrity official and that the state agree to make decisions supported by “the best available science.”

“They don’t take environmental health risks seriously,” Tumeh said of the Louisiana Department of Health after reviewing its edits.

The AP reviewed a draft agreement edited by state health officials and sent to EPA in May, reflecting negotiations at the time. It has not reviewed any draft agreement that would show what Louisiana’s environmental agency might have been willing to accept.

The state health department did not respond to questions about the draft agreement but said it “worked closely with the EPA to resolve this issue” and takes its civil rights obligations seriously, spokesperson Kevin Litten said.

State environmental officials declined to comment.

Messages and court documents show the negotiation between EPA and state authorities quickly broke down after the state sued to stop the probe on May 24, developments first reported by the radio station WWNO. That lawsuit, filed the same day health officials sent EPA their edits, is still pending.

The EPA had pursued its investigation using Title VI of the Civil Rights Act of 1964 that says anyone who receives federal funds may not discriminate based on race or national origin. It’s been used in housing and transportation, but rarely on environmental matters.

Biden’s White House promised that would change, saying Title VI would be used aggressively to achieve fundamental changes that stopped environmental discrimination. Louisiana’s lawsuit accused the EPA of weaponizing its Title VI power.

The state argued Title VI forbids intentional discrimination, but not policies that happen to hurt Black residents more than whites, referred to as “disparate impacts.” EPA’s targeting of those disparate impacts “effectively transform the agency from one purely or largely concerned with environmental protection into a free-ranging, social-justice-warrior,’” Louisiana wrote in its legal filings.

Less than a week after Louisiana made that argument, Sharon Lavigne’s phone rang while she was in her car on the way to breakfast. Lavigne, a Louisiana resident and founder of Rise St. James, one of the groups that asked the EPA to investigate state practices, said it was an EPA official reaching out to explain the investigation was ending and promising they weren’t going to forget about the community.

Lavigne had been optimistic the EPA’s work would finally bring real change and she had been impressed that EPA Administrator Michael Regan had visited Cancer Alley in 2021 and again this year, describing conditions there as unjust.

But after hearing the news, “We just felt let down,” Lavigne said.

The EPA declined to comment on the specifics of the Louisiana case, citing ongoing litigation, but said it was committed to environmental justice and improving the health of residents. The agency said previously that closing the investigations in Louisiana was “based on the facts and circumstances of those specific cases” and didn’t reflect any broader change in EPA policy.

The agency said it has taken action to reduce the risk from the Denka polymer plant that makes synthetic rubber, including reaching an agreement that cut emissions. It also sued the company, alleging it imposed an unacceptable cancer risk to nearby residents. And the EPA is proposing regulations to reduce emissions of pollutants like chloroprene.

It’s also started work on its own analysis of the harm faced by residents near the Denka plant.

A Denka Performance Elastomer LLC spokesperson said the facility has eliminated the majority of its air emissions and “strongly believes its operations do not contributed to alleged increased risk of health impacts,” arguing the EPA’s risk assessment is faulty.

The Biden administration has prioritized environmental justice, creating a new office to focus on cases of alleged environmental discrimination and the White House ensures that a portion of federal investments in climate change benefit disadvantaged communities.

But in the Louisiana investigation, EPA officials may have decided it was too risky to defend the investigation, especially with the state pushing back so hard, said Stacey Sublett Halliday, an environmental attorney at the law firm Beveridge & Diamond who is not connected to the case. It doesn’t help that the conservative-controlled Supreme Court has been skeptical of the EPA’s power to regulate the environment, she said.

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But dropping the investigation also sends a signal that the agency may fold if there’s pressure, she said.

The EPA can still pursue environmental discrimination and go after wrongdoing when companies violate regulations, but there isn’t a law specifically aimed at environmental justice. That makes the agency’s work harder.

“There’s some growing pains that I think the agency is navigating as they try to intensify their environmental justice work,” Sublett Halliday said.

The Associated Press receives support from the Walton Family Foundation for coverage of water and environmental policy. The AP is solely responsible for all content. For all of AP’s environmental coverage, visit https://apnews.com/hub/climate-and-environment

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