Biden’s environmental justice agenda will soon be put to the legal test

President Biden has made tackling environmental justice a pillar of his climate change agenda.

Now, an ambitious regulation at the heart of the president’s plan to use environmental rules to pursue businesses accused of making poor communities unhealthy is about to be thrust under a legal microscope.

The Environmental Protection Agency is suing to force Louisiana chemical plant Denka Performance Elastomer LLC to severely limit its emissions under the Clean Air Act to levels the company says are impractical.

The case has been on hold, however, because the EPA says it may no longer be needed.

The agency is finalizing a stringent industrywide emissions proposal to limit the release of likely cancer-causing toxins. The rules will affect more than 200 plants that manufacture synthetic chemicals and materials such as resins and polymers used in everyday items, such as baseball bats, yoga mats, hoses, automobile tires and cellphone cases.

Critics say the new emissions limits are politically motivated and based on outdated data and will do more to crush businesses than safeguard public health.

Whether it’s with Denka or the industry writ large, one thing is certain: A legal battle is on the horizon for the EPA.

“If they’re successful, this gives [the administration] a powerful weapon that they can use against numerous industries that are being politically targeted by activist groups,” said Paul Nathanson, senior principal at Bracewell, a law firm representing Denka. “If EPA wants to join in and put pressure on them, this gives them a pretty powerful tool to do that.”

The EPA told The Washington Times in a statement that it has sent the final rules to the White House Office of Management and Budget for review and “expects to issue the final regulations soon after interagency review is complete.”

The industry expects a final decision in the coming days.

EPA declined to comment about its litigation with Denka.

Denka is prepared to resume its fight against EPA. If industrywide rules render the agency’s lawsuit moot, Denka is prepared to sue over the new regulations.

Denka says the EPA is relying on outdated and faulty risk assessments to try to force further emission reductions of chloroprene and that the government’s actions could put plants and companies out of business.

The EPA classified chloroprene as a likely carcinogen. The chemical is used in producing neoprene, a synthetic rubber used in items such as car parts, medical equipment, military gear and wetsuits.

The Denka plant, located in Louisiana’s “Cancer Ally” industrial strip that borders the Mississippi River between Baton Rouge and New Orleans, is the only neoprene-producing facility in the country.

The EPA says its proposal would shrink cancer risks for those living near such facilities by 96%.

The EPA case against Denka has been marred in recent months by troubling allegations that could undermine its chemical plant emissions policies, including that agency officials fabricated documents before the lawsuit to justify forcing Denka and other manufacturers to limit emissions further.

Denka says its facility has spent tens of millions of dollars since the Japanese-owned company took over the facility in 2015 to slash emissions by 85%. The EPA says the reductions are still inadequate, based on its prior assessments of chloroprene’s dangers from a 2010 study.

Denka is seeking a new risk assessment, which it says would undermine the EPA’s case.

The EPA’s regional office of research and development that covers Louisiana agreed that a new assessment was warranted and made a request in 2021. Washington denied the request months later, citing an email from an official at the regional office who withdrew the recommendation.

That official, regional liaison Michael Morton, testified to Denka’s attorneys during a deposition that he did not author that email. Metadata records showed that the letter was crafted and sent by another EPA official in an alleged attempt to create a fictitious paper trail after the fact to deny a new assessment.

Congress inserted itself into the matter this year upon learning about EPA’s apparent fabrication.

The House Science, Space and Technology Committee told EPA Administrator Michael S. Regan in January that it was investigating EPA’s “decision to forgo a scientific review” and the “potential silencing of scientists at the agency.” The Republican lawmakers leading the investigation feared EPA “may have violated scientific integrity policies.”