NEW ORLEANS (CN) — A Fifth Circuit Court of Appeals panel appeared reluctant to dismiss landmark environmental racism and justice claims from Louisiana’s “Cancer Alley” Monday afternoon, despite state officials’ insistence they cannot go forward because a one-year statute of limitations to bring them has already lapsed.
U.S. Circuit Judge Catharina Haynes, a George W. Bush appointee, appeared baffled by Louisiana’s insistence that the plaintiffs — three groups representing residents of two mostly Black areas within St. James Parish affected by decades of petrochemical pollution — have no legal standing.
Haynes wondered if more recent injuries should be considered, questioning, “If X has been punching Y every day for the last 10 years, X might not be able to sue Y for 10 years ago?”
If “X punched Y in 2014 and Y’s face still hurts,” there is nothing Y can do about it now because Y lacks standing to recoup damages from that, St. James Parish attorney Carroll Devillier Jr. said.
Haynes asked Devillier, arguing on behalf of St. James Parish and its planning commission, if what he meant to say is that simply having a rule to agree to discriminate doesn’t necessarily mean there is a statute of liability.
“I’m just trying to understand your argument, which basically makes it sound like you’re saying, ‘Well, if you didn’t sue because you disagree within one year, then you can be discriminated against for eternity,'” she said.
Devillier replied that the plaintiffs knew for nearly ten years before filing a lawsuit about the parish’s land use plan that placed petrochemical facilities near majority-Black districts.
Attorneys from the Center for Constitutional Rights and Tulane University Environmental Law Clinic, on behalf Inclusive Louisiana, RISE St. James and Mt. Triumph Baptist Church, disagreed with the parish, saying it is decisions made by the parish council that have resulted in the continued destruction of property.
Jack Dean, an attorney from the Tulane Environmental Law Clinic who appeared on behalf of plaintiff Rise St. James at Monday’s hearing, said that the parish doesn’t place buffers on Black districts but does on those that are mostly white.
Pam Spees — an attorney from the Center for Constitutional Rights who appeared on behalf of Mt. Laurel Baptist Church and Inclusive Louisiana — clarified that the parish council’s 2014 plan made it very clear that the parish intended to place all the heavy and polluting industry in the 4th and 5th district.
In 2018, she said, the parish realized their plan sounded discriminatory, and certain language was removed, but enforcement of the original zoning ordinance has stayed the same and that here have been discriminatory acts within the most recent period of time.
The 2018 changes involved rezoning the parish’s 4th and 5th districts as “Residential” — where under the 2014 plan they were zoned “Residential/Future Industrial” — but industrial facilities are nevertheless permitted for those areas all the same, the plaintiffs say.
“Since we filed, the parish has continued to green light facilities” only in the 4th and 5th district, Spees said in a press conference following the hearing.
She said that if you look at the parish’s planning regulations closely, they explicitly said that they were trying to place all heavy industrial facilities they regulated into those districts.
“They’re still operating by the old playbook,” Spees said.
The groups first sued St. James Parish and its planning council in March 2023 over the disproportionate placement of plants emitting toxins in majority-Black districts, which they say violate their 14th Amendment due process rights and their 13th Amendment rights against slavery.
The groups are seeking a moratorium on new industry and air-quality monitoring.
U.S. District Judge Carl Barbier of the Eastern District of Louisiana initially dismissed most of the claims eight months after the lawsuit was filed, finding that a one-year statute of limitations had expired, and tying the claims to the 2014 parish ordinance.
Barbier additionally found the plaintiffs lack standing to bring a claim under the Religious Land Use and Institutionalized Persons Act and the Louisiana Constitution’s protection of historic linguistic and cultural origins. He said it is the petrochemical companies, and not the parish council, that have harmed sites of historic, cultural, and religious significance the plaintiff groups are concerned with, including unmarked slave burial grounds.
St. James Parish is midway between New Orleans and Baton Rouge in an 85-mile stretch along the Mississippi River called “Cancer Alley” because of the many petrochemical factories that call it home.
Residents in the 4th and 5th Districts of St. James Parish have a 95-100% chance nationwide of developing cancer.
Since 1958 — when the parish was first opened up to heavy industry — St. James Parish has permitted 24 industrial projects, 20 of which it has placed in the 4th and 5th Districts.
Haynes was joined on the panel by U.S. Circuit Judges Patrick Higginbotham, an appointee of Ronald Reagan, and Carl Stewart, an appointee of Bill Clinton.
The judges did not say how or when they will rule on the matter.