The ACR Project and Hamilton Lincoln Law Institute together filed an amicus brief with the U.S. District Court for the Western District of Louisiana, supporting Louisiana in its challenge to the EPA’s misapplication of Title VI and its regulations to impose disparate-impact analysis.* You can see the full brief, below.
The EPA argues that its Title VI regulation from the early 1970s is and always has been a catch-all, all-purpose, disparate-impact regulation. It argues that its mid-litigation dismissal of its investigations into whether a pair of Louisiana’s otherwise proper permitting decisions had such unjustified disparate impacts, and so allegedly vi0lated that regulation, moots Louisiana’s challenge to the EPA’s systematic national application of its re-interpretation of that regulation. It insists that any argument to the contrary comes fifty years too late and conflicts with Supreme Court precedent.
The EPA misstates the content of its regulation and the state of substantive law. The regulation’s text and modern constitutional law show that it is not and could not constitutionally be a catch-all, all-purpose, disparate-impact regulation. We argue that the district court should apply the canon of constitutional avoidance to refuse to read the regulation as the EPA prefers or, if it decides that it cannot, should hold that the regulation unconstitutionally exceeds the EPA’s power.
Among other things, we also argue that the district court must reject the strategic gamesmanship of the agency curtailing its investigation mid-litigation in an effort to avoid judicial scrutiny of its continuing, illegal “enforcement” of the regulation at issue. The EPA undertook that effort as part of the administration’s pattern of simultaneously pursuing an interpretation of its regulatory power at odds with the Supreme Court’s interpretation of Title VI and dodging challenges to the legality of that “whole of government” effort.
* – In the interest of perfect accuracy, we filed a motion for for leave to file an amicus brief, with that amicus brief attached as an exhibit.