Litigation Update: Louisiana v. EPA

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an Assistant Director of Practice Groups with The Federalist Society. Today, we’re excited to host a litigation update on Louisiana v. EPA. We’re joined today by Drew Ensign. Drew is an attorney, currently in private practice. He has served in the Arizona Attorney General’s Office and the Louisiana Solicitor General’s Office. Drew has extensive litigation and appeals experience at the state supreme court and federal circuit court levels.

 

      If you’d like to learn more about Drew, his full bio can be viewed on our website, fedsoc.org. After Drew gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many questions as we can.

 

      Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. And with that, Drew, thank you very much for being here today, sir, and the floor is yours.

 

Drew Ensign:  Thanks very much, Sam. So I’m going to talk about Louisiana v. EPA. This is a case that’s currently pending in the Western District of Louisiana. And before turning to specifics of the case, it’s useful to identify some of the key trends that are playing out that kind of underlie this case and a lot of others like it.

 

      The first is this administration has an unmistakable appetite for race-based decision-making, and you see that across the board—across many agencies—and EPA is certainly no exception. The second is EPA’s contempt for the limits of its authority—certainly see that pop up in a lot of contexts. Certainly comes up a lot in clean air context but also elsewhere, as you’ll see here. And third is EPA has begun prioritizing social justice over actual environmental quality, and you can kind of see that in the background here. I just want to talk about that quickly before turning to the complaints.

 

      So the dispute, ultimately, arises from the issuance by the Louisiana Department of Environmental Quality of several Clean Air Act permits for two facilities in 2020. Couple important things about these permits. It’s undisputed that they complied with all substantive environmental requirements of environmental law. It’s also the case the permits reduced the amount of allowable air emissions, producing unambiguous environmental benefits. Those environmental benefits occurred in areas that had greater minority representation, and thus, a greater portion of the environmental benefits were felt there.

 

      And finally, EPA had an opportunity to object to issuance of the permits at the time but declined to do so. Instead, they began an investigation that we’ll turn to in a minute, but I’d like to kind of go through the overview of the claims so we can understand them when we talk about what’s gone on here. 

 

      So Louisiana’s claims fall within three broad categories. The first is the private nondelegation doctrine. The second is Title VI disparate impact mandates, including a Spending Clause challenge, which is really kind of the heart of the complaint. And the third is extra-regulatory requirements, which are, essentially, mandates that EPA is just making up on the fly.

 

      So turning to the nondelegation claims. The nondelegation doctrine comes in two strains. The first is the much better-known public nondelegation doctrine, which governs what powers Congress can delegate to agencies. The nondelegation doctrine had one good year in 1935, with two favorable decisions, and it’s basically had bad years ever since. And at this point, it’s essentially [inaudible 3:57].

 

      In its modern form, all that it requires is that Congress supply an intelligible principle to guide any delegation of authority, and that’s extremely undemanding. It's enough for Congress to say, “Use this delegated power in the public interest,” and that satisfies the doctrine in its modern form. It has shown some signs of renewed vitality in recent years. It really undergirds the major questions doctrine, and a huge part of it is a sort of constitutional avoidance to avoid nondelegation problems that could otherwise be presented. And it showed some signs of life in the Gundy case but didn’t actually prevail, which is a story for another day. 

 

      Louisiana’s challenge, however, involves the private nondelegation doctrine, which is a lot lesser known but actually has substantially greater bite and continuing vitality. As its name suggests, the doctrine forbids the federal government from delegating governmental powers to non-governmental actors. And as the Supreme Court has called it, such a delegation is, “unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress.”

 

      And as I mentioned, this is alive and well. Recently, both the Fifth and Sixth Circuits struck down a provision of the Horse Racing Integrity and Safety Act, which allowed private groups to set regulations for Thoroughbred horse racing. And in particular, the Fifth Circuit explained that Congress can formalize the role of private parties in proposing regulations as long as that role is merely an aid to the governmental agency. As they said, “If the private entity does not function subordinately to the supervising agency, the delegation of power is unconstitutional.”

 

      So how did that come up here? So EPA’s regulations require it to resolve Title VI complaints within 180 days. This timetable is wildly unrealistic, and even EPA admits it. At one point, in 2015, it proposed to eliminate that timetable, variously calling its own deadlines unrealistic, inflexible, and impracticable, but they never actually finalized the proposed regulations, so it stays on the books, if rarely honored in practice.

 

      But this changed a bit in 2018 and 2020 when EPA acquiesced in two adverse judgments in the Northern District of California. These weren’t outright consent decrees, but the plaintiff sought relief. EPA didn’t oppose it and essentially allowed default judgments to be entered into against it. So for the plaintiffs in those suits, their Title VI complaints—and no one else’s—would be treated differently. For those groups, EPA committed to issuing preliminary findings and recommendations within 180 days, which could not be extended by EPA itself. It could only be extended with the consent of the private groups. Absent their consent, EPA was essentially in contempt of court if it didn’t do something within 180 days.

 

      And so, that’s what occurred in this case. Sierra Club was one of the complainants and was also a party to one of those acquiesced in Northern California judgments. And when informal negotiations approached the applicable deadline, EPA indicated that it believed an extension was warranted but couldn’t do so on its own. Instead, it needed to and would seek the consent of Sierra Club. And it ultimately obtained that consent—by its own admission—by horse-trading nonpublic information, telling the state that it didn’t think it was a very high price in order to get a 120-day extension.

 

      So clearly, the private groups have the power to tell EPA what to do, and EPA is in a position of haggling and horse-trading to get their own power back. So in our view, this violates the nondelegation doctrine—the private nondelegation doctrine, specifically—and that’s where that -- that’s that claim, and we’ll see how that played out.

 

      Turning to the second group of claims, it’s helpful to talk a little bit, at first, about the Civil Rights Act of 1964, which is absolute landmark legislation that’s probably one of the most consequential statutes ever enacted by Congress. And in particular, we’re going to focus on two titles that have nondiscrimination provisions: Title VI, which governs federal grant recipients and is ultimately this case -- but Title VII, which governs nondiscrimination in employment—and it’s helpful to talk about that first because it really illustrates the difference between disparate treatment and disparate impact. And that’s where most of the case law is, so a lot of the Title VI case law is in the shadow of Title VII.

 

      So Title VII recognizes two distinct theories of liability for discrimination for employers: disparate treatment and disparate impact. Disparate treatment is exactly what it sounds like. It’s simply treating people less favorably than others because of their race, color, or sex, or religion, or other protected characteristic. It’s essentially synonymous with intentional discrimination.

 

      Disparate impact is something very different. It involves challenged practices that are facially neutral in character, in their treatment of different groups but, in fact, fall more harshly on one group than another and cannot be justified by a business necessity. So the way the courts look at this within the employment context is -- the first step is to see if there is a statistical disparate impact, and if plaintiffs can show that, then businesses have the burden of showing a business necessity for the challenged practice. And even if they can do that, they’re still liable if plaintiffs can show an equally valid, less discriminatory alternative.

 

      Although this was originally recognized by the Supreme Court in the Griggs case in ’71, Congress subsequently codified it explicitly into the statute in Title VII. So it’s explicitly there, and there’s no doubt that it’s something that Congress has, in fact, enacted into law.

 

      Now, disparate impact mandates are substantially more controversial than prohibitions on intentional discrimination. To supporters, disparate impact is often justified as smoking out intentional discrimination through statistical disparities and, essentially, bringing to light discrimination that is otherwise difficult to detect. And one thing I’ll just note at the outset about that, lack of discriminatory intent is not a complete defense to liability. Even if an employer can show with absolute certainty that they did not act with discriminatory intent, they can still be liable, and so that’s one of the problems, among others. To its detractors, disparate impact liability is problematic because it frequently permits or even compels decision-makers to engage in intentional racial discrimination in order to avoid disparate impact liability.

 

      And the tension between these two standards really came to a head in the 2009 Ricci v. DeStefano case. Now, there, a New Haven Fire Department administered a test for promotions to lieutenant and captain. That exam was carefully designed to be tied to actual job requirements for the positions and to eliminate the bias of the exam. And essentially, there was no credible evidence that it was biased in any way—in its design, at least. The results, however, showed a disparate impact. On the captain’s exam, for example, the pass rate for white candidates was 64 percent but 37.5 percent for both black and Hispanic candidates. And there was similarly a differential on the lieutenant exam.

 

      So after seeing these racial disparities in the test results, New Haven refused to certify the test results and essentially threw them out entirely and promoted no one. As the district reported, the city rejected the test because too many whites and not enough minorities would be promoted were the list to be satisfied. So several of the white firefighters sued and argued that the refusal to promote them on race-based grounds violated both Title VII and the Equal Protection Clause. And the reaching majority kind of frames the tension this way, “That without some other justification, this express race-based decision making violates Title VII because the employers cannot take adverse employment actions because of an individual’s race.”

 

      Now, the Supreme Court kind of sidestepped much of this potential conflict by holding that an employer can only engage in race-based decision-making where there’s a strong basis in evidence that there would otherwise be an illegal disparate impact. New Haven lost under the standard since there was a clear business necessity for the test, and it was shown to be very closely tied to the actual job requirements. So because the city essentially had no real evidence that could support a claim, they lost. And they lost under Title VII’s disparate treatment’s mandate, and then, therefore, the Court never -- didn’t need to reach Equal Protection Clause issue since the firefighter plaintiffs won on the Title VII statutory grounds.

 

      Very importantly, Justice Scalia authored a concurring opinion in that case, which focused on that tension and relatively -- sort of presciently predicted where all of this was headed. And in Justice Scalia’s view, the decision “merely postponed the evil day on which the Court will have to confront the question whether or to what extent are the disparate impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection.” And he similarly went on to say that “The Court’s resolutions of this case makes it unnecessary to resolve these matters today, but the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how and on what terms to make peace between them.”

 

      So that really brings us to Title VI and where a lot of this case is focused on. So Title VI prohibits discrimination on the basis of race, color, or national origin for any organization or governmental entity that receives federal assistance. The sweep of Title VI is absolutely vast. Virtually every school, hospital, police department, fire department within the United States is within it, and most state agencies in the U.S. receive federal grants and thus are also bound by it. This, for example, is how the Harvard affirmative action case was brought, and it’s the most recent Title VI case at SCOTUS. Harvard receives federal assistance, is therefore bound by Title VI, and that’s how that case was litigated.

 

      The operative provision of Title VI is Section 601. It says that no person in the United States shall, on the basis of race, color, or national origin, essentially be discriminated against under any program or activity receiving federal financial assistance. While this text would seem to suggest just a simple prohibition on discrimination on the basis of race, full stop, that’s not how the Court has interpreted it. At this point, it’s now well established that Section 601 only prohibits discrimination that would violate the Equal Protection Clause, and so, it’s coextensive with the Fourteenth Amendment. And that’s, for example, why the Harvard case got litigated under the Equal Protection standard even though Harvard isn’t a governmental actor.

 

      Importantly, though, it’s equally clear that Section 601 prohibits only intentional discrimination and not disparate impact. So how do we get to a situation where the feds are using Title VI to impose disparate impacts? Well, the putative authority for that is Section 602, which gives authority to federal agencies and says that they are “authorized and directed to effectuate the provisions of Section 601 --” and it gives -- “with rules, regulations and orders.” So the question is, is the executives’ unlimited authority to effectuate Section 601, which prohibits only intentional discrimination, allow it to prohibit disparate actions that have disparate impacts?

 

      Here, the Ninth Circuit is really -- surprisingly said it best. “A regulation cannot effectuate a statutory right by creating a new and different right.” And that’s exactly what we think we have here. Or as the -- Louisiana’s brief puts it, “Agencies cannot effectuate Section 601’s prohibition, purely unintentional discrimination, by transmuting that prescription into something entirely distinct. That is an act of mythological alchemy, not interpretation or effectuation.”

 

      Now, this important legal question has evaded meaningful judicial review for decades. The first disparate impact regulations were adopted by the Johnson administration in 1966, but in 2001, the Supreme Court held that there was no private right of action to enforce disparate impact mandates, unlike intentional discrimination—the prohibition of Section 601. So the case law is extremely limited—almost non-existent—because these enforcement actions never really go to judgment. Either the target of the enforcement action knuckles under or the agency gives up. But partly because loss of federal funds is such a sort of Damocles, these cases just don’t come up.

 

      So that was in 2001, in Sandoval -- or Alexander v. Sandoval. That’s the last time the Supreme Court has addressed it. In that case, it assumed that disparate impact regulations under Section 602 were valid, but it just assumed that because the court had never held it and has never gone back to it. It did, however, tip its hand by saying -- or by recognizing how strange it is that 601 permits the very behavior that the disparate impact regulations forbid—so kind of tipping its hand.

 

      But part of the reason this didn’t come up for the ensuing 22 years is the disparate impact mandates were not enforced aggressively until -- that really all changed with the Biden administration and where -- kind of in the name of principles of equity and environmental justice, this has become a much, much more active area.

 

      So the state has a number of arguments why we think this is wrong, including the plain text context, canons of construction, the Spending Clause, the Equal Protection Clause—both of those on constitutional avoidance—and the major questions doctrine.

 

      I actually want to focus on the Spending Clause first because I think this is the most clear cut. So Congress’s power under the Spending Clause to attach conditions to the states actually has several limitations. And importantly, one of those is that any condition has to be unambiguous. And so, that prohibition on unambiguous conditions actually has a lot of bite here. And this requirement of clear condition essentially comes in two flavors.

 

      The first is the states have a right to the clarity of the contours of conditions before they accept. And the second—and this one is more important here—states have a right not to be bound by any restriction that isn’t unambiguous from the text of the statute itself. And so, a great example of a case like this is Arlington Central, where the Supreme Court held that states can’t be liable for expert fees in IDEA cases because the statute didn’t unambiguously provide for it. It did unambiguously provide for attorney’s fees, but because it didn’t do so for expert fees, the states couldn’t be bound by it.

 

      And to argue, this makes this case very simple. Whatever you think about Section 602, its effectuate text does not unambiguously provide authority to sweep disparate impact liability into Section 601. And the Supreme Court has even specifically applied this Spending Clause principle to Title VI, holding in the Cummings case that emotional distress damages were unavailable against the states because Title VI didn’t unambiguously provide for them. And then, even more importantly, agency regulations cannot provide the requisite clarity. It has to be in the statute itself. And both the Fourth and Fifth Circuits have held that expressly. In this case, it’s obviously in the Fifth.

 

      I want to just quickly walk through the other arguments. One is plain text. As you might expect, effectuate means to cause or make happen. It doesn't mean to change or transform. You can’t effectuate something by turning it into something very different. Similarly, as was saying earlier, the fact that disproving intentional discrimination is not a complete defense shows you that it’s doing something else because all Section 601 does is prohibit intentional discrimination. So if you can disprove that, there should be absolutely no basis for liability. But the feds are very clear that they can still impose liability under disparate impact, even in the absence of that. So whatever it’s doing, it’s not effectuating Section 601.

 

      Similarly, context, we think, is really important here. Notably, Title VII explicitly has a textual disparate impact mandate, while Title VI has no such thing. Similarly, there’s a lot of other civil rights statutes that expressly allow for disparate impact claims, but Title VI isn’t one of them.

 

      Just kind of quickly, with the canons of construction, for similar reasons, we think that different or omitted words, canon comes in because Title VII says disparate impact; Title VI doesn’t. The federalism canon, that you don’t disrupt the balance of power between the federal government and the states without a clear statement, also comes in here. So does the presumption of good faith for state actors since, basically, what these regs are doing is presuming bad faith anytime there’s a statistical disparity. And even worse than that, the presumption is frequently irrebuttable since you can’t even defeat liability by showing the lack of discriminatory intent.

 

      And finally, constitutional avoidance comes in with the Equal Protection Clause. And really, that -- as Justice Scalia’s Ricci concurrence identifies it, this is -- disparate impact liability is ultimately, potentially at war with the Equal Protection Clause. Similarly, in cases like Parents Involved in Community Schools v. Seattle School District, which have barred use of racial tiebreakers, the use of racial balancing, and “working backwards to achieve a particular type of racial balance,” which is really what EPA is doing here.

 

      And finally, we think it falls within the major questions doctrine, and it has both vast economic and political significance, and it also has significant federalism concerns. So given that, the federal government would need a clear statement from Congress that it can impose disparate impact mandates, and, of course, nothing like that exists here.

 

      The final group of claims is the extra-regulatory requirements. So when Section 602 permits agencies to issue rules, regulations, and orders of general applicability, you have to do at least two things with that. One, there’s an explicit requirement that you receive approval from the president. And the second is, to make rules, you have to go through APA notice-and-comment rulemaking—or, at least, comply with the APA in some manner. But basically, EPA is just making up stuff, and this case shows that, and we’ll get into that in just a second.

 

      So this case came up from the ferments I was mentioning, even though they were issued in 2020 and EPA did not object to them at the time. In April 2022, they, nonetheless, accepted some untimely complaints from environmental groups, which started the 180-day clock, at least, in theory. But EPA really didn’t do anything until it issued a letter of concern 189 days later, and then informal negotiations with Louisiana began on November 16. So we’re already 200 days into this before informal negotiations even start at all.

 

      During the course of those informal negotiations, EPA admitted that the permits complied with all substantive environmental law, but their position was very clear that compliance with environmental laws is not a shield to Title VI. During those negotiations, they made several demands that were found nowhere in the Title VI regulations. So these are the extra regulatory requirements.

 

      They demanded that Louisiana conduct public meetings. Somewhat extraordinarily, they demanded that Louisiana refrain from criticizing EPA on contested scientific matters, which seemed like a mild First Amendment problem. And they also demanded that Louisiana perform cumulative disparate impacts mandates -- cumulative disparate impacts analysis rather. And this is one where they actually promulgated several guidance documents, not with the notice-and-comment rulemaking, but essentially, they were treating those guidance documents as if they were binding rules. And again, none of these were ratified by the president. None of them were the product of APA rulemaking, and so we thought that all those are illegal.

 

      As the clock came up for the informal negotiations in March 2023, as mentioned, EPA made clear that it thought an extension was warranted, but it had to get Sierra Club’s approval, and it only got that through horse-trading nonpublic information. So that’s the nondelegation doctrine one. And this was going on -- Louisiana filed the suit on May 25, and following that, EPA became extremely squirrelly. It canceled every single regularly scheduled negotiating meeting after that, but always at the last minute, with less than 24 hours’ notice. So they were clearly -- something strange was going on. We weren’t sure exactly what, but with the July 11 deadline for EPA to resolve the investigation approaching, the state sought a preliminary injunction on June 21.

 

      And that’s where some fairly extraordinary things happened. Six days later, EPA completely abandoned all of its investigations regarding those permits. It basically surrendered entirely as to all of those investigations, and it further rejected other complaints that environmental groups had filed about Louisiana. And so, basically, they abandoned or rejected all pending Title VI complaints—and many of you may see where this is going. They then argued in their subsequent filing that they had mooted Louisiana’s challenge because they had resolved everything.

 

      So in response to EPA’s fairly extraordinary surrender of all these investigations, the state has narrowed its PI. We’re no longer seeking a preliminary injunction on the private nondelegation claims, although we’re still ultimately seeking judgment on the merits. We’ve narrowed the extra-regulatory requirements to the cumulative impacts requirements because there, EPA has binding guidance that it seems to think applies to everywhere.

 

      But in our view, this is not moot because EPA—and the federal government, generally—take the position the states are still bound by disparate impact mandates every single time they make -- they grant a permit or take some other governmental action. So this comes up every single time that we have to grant a permit or do something else. And we, thus, incur fresh injury every single time we make a decision where we’re bound by this federal mandate that we have to consider disparate impact. And so, we think it’s not moot for that reason, and we think it’s also not moot because it falls within the voluntary cessation exception, particularly as EPA’s actions were so transparently litigation-based.

 

      I’ll also add that the groups are very upset at EPA and very willing to say public things about how EPA is doing all of this as a result of this suit and how it’s, essentially, trying to surrender its way into mooting out Louisiana’s challenge. So, in addition to mootness -- if you’ve ever litigated against the federal government, it will not surprise you that they have an absolute litany of procedural defenses. They have, I believe, 28 pages, in Garamond font, of various procedural defenses. So a lot of that standing, they say that we lack injury. They say the injury lacks imminence. They say that we lack traceability and redressability. There’s mootness. They say that it’s barred under Thunder Basin Coal doctrine. They say there’s a lack of final agency action, and they say the suits are untimely.

 

      We’ve got answers to all of those, but if you’ve ever litigated against Federal Programs Branch, you know they have a playbook, and they rarely -- it’s almost more of a checklist, and you will often see that same checklist played out in every one of these briefs.

 

      So next steps are: Louisiana’s final brief is due to the Court on September 19. There’s likely still time for anyone to file an amicus brief in support of the state if anyone desires to do so. And if so, please feel free to reach out to me. EPA’s final brief is due on October 19, and then a hearing on cross-motions is set for January 9, 2024. And then, finally, I just want to highlight some of the EPA’s actions elsewhere so you can get a sense of how -- what the agency is up to and how far we are through the looking glass.

 

       In April, EPA coerced Alabama into a Title VI disparate impact settlement that, remarkably, bans the state from enforcing its criminal laws regarding unlawful sewer discharges in a particular county. So here, you have the Environmental Protection Agency employing Title VI to prevent the enforcement of environmental laws, thus ensuring worse environmental quality. So we are in a very strange and uncharted land.

 

      EPA has also made similar cumulative impacts demands from other states, including Missouri and Michigan, though, notably, abandoned that effort in Michigan recently, to the extreme consternation of a lot of environmental justice groups, who have basically said, “This is, again, an attempt to moot out Louisiana’s challenge.” So we are starting to see this reverberate around, and there’s a lot of discussion that DOJ is essentially trying to restrain EPA so that its actions don’t threaten programs elsewhere and in other contexts. 

 

      So that’s kind of where we’re at, and so I look forward to answering questions that people may have and talking about this further.

 

Sam Fendler:  That’s great. Drew, thank you so much for providing what was a very comprehensive discussion of this case. We will now turn to audience questions, so again, if you have a question, please enter into the Q&A function at the bottom of your Zoom window. We have plenty of questions to get to, plenty of time to get there, as well. Drew, I want to ask you at the outset, do you have a sense of what EPA’s desired end state is here? Because it seems -- you mentioned at the very end of your remarks -- the end state in that Alabama case where it winds up with Alabama not being able to enforce laws regarding sewage dumping. So it seems strange. What do you think the EPA’s desired outcome is here?

 

Drew Ensign:  It’s hard to say exactly. I mean, if you go by their buzzwords, they’re very fixated on social justice and equity and -- sorry, environmental justice. And their view is that environmental laws are not just to protect the environment but, ultimately, to kind of restructure society in a way that have distributions that are more to their liking.

 

      And so, this is something that pervades the agency, and somewhat remarkably -- so they’ve created a new Office of External Civil Rights. They’ve vastly expanded it, and they have given it equal status as the Air and Water Departments within EPA. So it has equal standing as clean air and clean water in the Environmental Protection Agency, and it’s similarly headed by an assistant director just like all of those other divisions. 

 

      And so, this is something that’s extraordinarily important to them. They view it as central to their mission. Their views of equity are very different from mine and very different from many others, but they believe very strongly in it, and it’s what they want to achieve. And that’s one of the reasons they got so far over their skis in this case, is because they believe these things very genuinely, and they want to, sort of, change the world.

 

Sam Fendler:  I want to ask you a question from an audience member. They noted that the complaint spotlights one EPA employee’s aggressive dealings with the Louisiana state agency—behavior that this viewer thinks underscores some danger in allowing environmental justice policies to continue in somewhat of an unfettered way. Could you talk about those exchanges that were outlined in the complaint?

 

Drew Ensign:  Sure. And I should say that I wasn’t on those discussions, so this will all be second-hand. But it’s pretty extraordinary, and I’ll say -- I’ll preface this with, DOJ regards all of this as mere negotiating positions, and, essentially, none of this is subject to judicial review. And the way that the agency seems to be operating is to push as hard as they can, see if they can extract settlements out of people, and if they can, so much the better. And then we saw with this case where Louisiana filed suit back. They rapidly retreated. So that seems to be the MO.

 

      Some of the crazier things that they demanded -- as I mentioned earlier, they strongly objected to Louisiana officials criticizing EPA’s scientific views on particular scientific issues, which -- and suggested that that needed to stop and that the state could only read EPA-approved bullet points in these public meetings that it demanded that the state conduct. So if you think about it, it’s not just a content-based restriction of speech. It’s also compelled speech because they were going to compel the state to hold meetings in which it could only say EPA-approved talking points that are, essentially, forcing the state to speak the feds’ message. So that was one of the crazier things.

 

      Another crazy thing is that she kept saying that the EPA had total discretion as to whether or not to proceed or pull away from informal negotiations, which is absolutely wrong because Section 602 says, explicitly, you can’t proceed to enforcement unless you first determine that voluntary compliance isn’t available. And EPA’s own regs mandate that they achieve -- that they resolve things by informal procedures whenever possible. And that was just clearly wrong.

 

      It’s very clear that cumulative impacts are part of their mission or is part of their agenda, but they don’t have an actual reg that’s binding. So instead, what they’re doing is they’re essentially putting in demands and negotiations for requirements that have no lawful basis to see if people will knuckle under and thus save them rulemaking and is an approach that -- it’s a reasonably effective one because loss of federal funds would be such a sort of Damocles hanging over the states that people do, in fact, knuckle under a lot. And so, they can exploit -- they know they are -- an enforcement action would be so potentially devastating that lots of people will knuckle under.

 

      And the other thing to think about, too, is lots of state agencies, particularly directed by friendly governors, are more than happy to knuckle under. And so, EPA can kind of wield its authority to achieve consent decrees that are not really opposed. So that’s a lot of the reason, I think, we’re seeing these things. We were fairly amazed at some of the things that were being said, and I think you get a flavor for that in the complaint.

 

And I think, ultimately, that’s one of the reasons why DOJ and EPA were so desperate to abandon these investigations and sort of wipe the field clean because there’s some bad facts for them in here. And it doesn’t make them look very good about what they were doing, and so, I think they want to run away from that as much as possible. And if that involves a somewhat humiliating capitulation, they’re willing to do it.  

 

Sam Fendler:  You were talking about this just at the end there, and you mentioned it a bit in your opening remarks. Do you sense tension between the EPA and DOJ?

 

Drew Ensign:  So certainly, commentators do. I mean, that’s my sense as well. And I should stress these are just my views. These are not the views of the State of Louisiana, so this is just my impression. My impression is this seems panicked. It seems like a frantic response, and it seems like it has the feel of the grown-ups at DOJ got involved and decided to chart a different path. So that’s certainly how it seems to me, but it’s impossible to know their thought processes and why they’re reaching particular decisions. That’s my best guess, but there could be a lot of things going on there.

 

Sam Fendler:  I want to ask you, Drew, about the recent huge decision in the Harvard case. Of course, that case turns on the Fourteenth Amendment. The Supreme Court has elevated a race-neutral reading of the Fourteenth Amendment, and I know that this case is particularly wrapped up in Title VI. But do you think having the Harvard case decided will affect the future of this Louisiana case?

 

Drew Ensign:  I think it will, although not as directly as it might be. They’re different doctrinal aspects of Title VI and the Equal Protection Clause. So in the Harvard case, there’s no dispute whatsoever that what Harvard and UNC were doing was they were making intentional classifications based on race. And they said that was justified under the Grutter decision and the Court’s affirmative action policies. So that’s doctrinally a bit different from what we have here where it’s disparate impact.

 

      Although a lot of it ultimately has a very similar flavor because disparate impact ultimately often causes the decision maker to engage in intentional discrimination on the basis of race. In both cases, that intentional racial classification in decision-making is putatively benign, but lots of people take a different view of that, including us in this suit. I think it’s also kind of important for the overall sense the Court is conveying about how it looks at Title VI, and I think that’s going to be important as this plays out.

 

      And one other aspect that’s kind of interesting. The Court long ago read Title VI to be coextensive with the Equal Protection Clause, but I mean, if you look at the text, that is not the best reading of it. And Justice Gorsuch has a concurrence where he explains that “No. If you look at this, what it says is you can’t discriminate on the basis of race, full stop.” Not that you can do so through affirmative action or through a disparate impact mandate. You can’t do it.

 

      And so, obviously, the district court and the Fifth Circuit are bound by the Supreme Court’s construction of Section 601, but there does seem to be at least one justice—and probably several—that might be open to reinterpreting 601 to be more consistent with its plain text, which, by its plain text, it says you can’t discriminate on the basis of race. And what you have here is EPA essentially demanding the state discriminate on the basis of race in a way that EPA would like it to.

 

Sam Fendler:  I want to ask you, Drew—and this may require a little bit of speculation, so please don’t feel like I’m putting you in any kind of hot seat or anything -- but you were talking about, at the very beginning of your remarks, the very clear race consciousness in the Biden administration, the overreaching that EPA has engaged in, and I’m looking here at the EPA’s strategic plan. They have seven goals. The strategic plan is supposed to go out to 2026. The first goal is to tackle the climate crisis. The second goal is to take decisive action to advance environmental justice and civil rights. And then the third is to enforce environmental laws, and then we start talking about air, water. For your interactions with the EPA, what is your sense of how they view and execute their mission?

 

Drew Ensign:  And again, I wasn’t involved in these negotiations, so this will all be second hand. And I think it really depends on what part of EPA you’re dealing with. If you’re dealing with their Office of External Civil Rights, I think you’ll find that they are very fixated on that environmental justice mission and these sort of concepts of equity. If you’re dealing with the Air Department, they’re probably going to be more focused on actual air emissions or actual air quality. So I don’t think any -- EPA, much like any large agency, is not monolithic, but certainly—and you’ll probably get a flavor for this from the complaint—the Office of External Civil Rights has a particular worldview, and they’re very focused on it.

 

      We see it in the states. At least in my view and the view of the state as expressed in the complaint, that’s one to the -- almost to the exclusion of the environment. Because, again, these permits are ones that did unambiguous environmental good. They resulted in less air emissions in a way that improved air quality, and for Environmental Protection Agency, it’s awfully strange that that’s so problematic to them.

 

      And you can even add to that, that those environmental benefits accrued] most of the people they cared -- to be caring about -- claim to be caring about. So it’s very strange. They have a different worldview, and that does come through. And I think that comes through a lot more when you’re talking to their civil rights people and -- but that -- it does pervade the whole administration.

 

      For example, their Department of Agriculture has had some very, very crude uses of race-based decision-making that have fared very poorly in courts: ones where the SG’s office was unwilling to take them to the Supreme Court because they were so crude. You do see this in a lot of places, and it definitely permeates a lot of stuff.

 

Sam Fendler:  Let’s stick with the macro, the bigger picture. The administrative state is nothing new. People have been talking about it for a long time, certainly people who would be tuned into this call. Cases like this one -- there are other cases that we’ve done litigation updates on very recently. For example, a lot of this stuff is coming out with COVID, with social media companies. Although the administrative state’s not new, there seems to be a bit of a stress test going on for how far some of these administrative agencies can affect law without going through Congress. You talked about the nondelegation doctrine. I’m just curious what you think of the bigger picture of separation of powers, these Executive Branch agencies, the administrative state, how you see it playing out on the ground. If you could give me your sense of the current state of things, where you think they’re going, I’d love to hear your opinion.

 

Drew Ensign:  So again, these are just my views and not those of anyone else. And I come at this from a very state-oriented view, having worked in the Arizona Attorney General’s Office for many years. In my mind, a lot of this change—particularly visa vie the states, in Obama’s second term—that’s very much where he had a self-described pen and phone strategy, where he was going to achieve as much as possible through administrative regulations, lacking control of the House of Representatives.

 

      And in that period, the amount of litigation from the states started increasing rather substantially. And it did not slow down whatsoever. If anything, it amped up a step when President Trump came into office. Certainly, the states that were suing flipped, but the volume of litigation stayed at a very high or even higher level. And I think it continues at that rather high level to stay with. 

 

      And I think there’s another trend here, too, where oftentimes, business groups are happy to let states carry the water for them. It’s a fairly daunting thing to sue your regulator, and so that has also affected how these things play out. There’s also been congressional gridlock for quite a while, particularly where the executive and Congress are divided control. Not a lot of legislation gets passed, and so that really increases the opportunities for achieving policy ends through administrative rulemaking or not even rulemaking -- skipping notice-and-comment rulemaking. This definitely is more active. There definitely is much more active administrative activities.

 

      Really, I think agencies are probably our principal sources of law-making these days. And as long as that’s going to be the case, I think you’re going to see a lot of litigation, too, because when the stakes are that high—and that’s when a lot of laws are being made and particularly where a lot of regulations are being made that don’t seem to be either procedurally or substantively valid—I think you’re going to -- you see a lot of litigation. And we’ve been a part of a lot of that.

 

Sam Fendler:  Well, Drew, I appreciate you entertaining my questions about the bigger picture, the administrative state, the Constitution. I’ll walk it back in. Certainly, in the civil rights space, and I think, in particular, this growth of environmental justice, the EPA does seem to be—at maybe the cutting edge, but—a group that is pushing forward some potentially novel ideas around disparate impact. I know that when it comes to environmental justice, these environmental laws, the question of disparate impact—at least to me; I’m mostly a layman here—it seems that it’s an unsettled question or it’s -- the EPA is maybe trying to unsettle how disparate impact works. And so, I’m wondering if you could talk about that, in specific, for a little bit?

 

Drew Ensign:  So within the EPA, there’s no question that the Biden administration came into office and wanted to be more active in this space and certainly viewed disparate impact and Title VI as one of their principal ways of achieving the sort of environmental justice that they wanted to do so. And so, that’s definitely something that they’ve focused on, but I think it’s pretty emblematic throughout the administration. I don’t think it’s a very profound revelation to just note that the Supreme Court and the administration are just on very, very different paths.

 

      The Supreme Court increasingly is making very clear that they believe that race neutrality is what the Constitution and many federal statutes demand. And the administration increasingly wants to have race-conscious decision-making by the executive branch. And so, those things are fundamentally different and at loggerheads with each other, and I think that’s going to play out.

 

      It’s certainly going to play out with EPA, but I think it’s going to play out with a whole bunch of agencies. As I mentioned, the USDA one, but I think there’s a lot of -- you would struggle to find any agency that doesn’t have some view of this that may ultimately lead to a conflict much like this. Even things like the Treasury Department, I think, has the sort of initiatives that could be problematic. 

 

Sam Fendler:  Drew, you mentioned that there’s still time for some future amici. I’m wondering, if you’d like, is there a way for anybody to get in touch with you on that front?

 

Drew Ensign:  Yeah. Absolutely. I’ll try to -- Sam, I’ll send you the briefs that -- they have my contact information on them. Feel free to reach out to me on that. If anyone wants to discuss these things, I’m more than happy to, and it certainly -- I certainly would love to have amicus support in the district court, or I don’t think it’s betraying any secret that this case may go up on appeal at some point. So there’ll probably be another opportunity for amicus briefs at the Fifth Circuit or beyond—later on in the case if the current timetable doesn’t work for anyone.

 

Sam Fendler:  So the immediate future, Drew, what are you focused on now? What do you expect in just the next few months here?

 

Drew Ensign:   So our next brief is due on September 19. I am just neck-deep in DOJ’s various procedural defenses. It’s like a month-long federal courts exam or administrative law exam that I actually love, so I shouldn’t denigrate too much. But it’s a lot, and they have a lot of reasons they think the merits are completely ungratiable and beyond the scope of the powers of the judiciary to remedy. So that’s the next steps for a while. At least in my mind, the merits are a bit more straightforward, and that’s something that -- that’s where the next month is, and then, eventually, there’ll be that hearing in January next year.

 

Sam Fendler:  That’s great news. Well, Drew, this has been tremendous. We are closing in on the top of the hour, and I want to give you the opportunity for any final thoughts on this case.

 

Drew Ensign:  Nothing other than thank you very much for joining us. I love to talk about this case, so I’m very excited that people wanted to hear about it. And if you have any questions about it, please feel free to reach out to me.

 

 

Sam Fendler:  That’s tremendous. Well, Drew, on behalf of The Federalist Society, I want to thank you very much for joining us today. We appreciate you sharing your time and your expertise with us. I want to thank our audience as well. Thank you very much for tuning in. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms, @fedsoc, to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in. Drew, thank you for being here, and we are adjourned.