Oliver Laughland for the Guardian and Delaney Nolan for the Intercept
Fri, 2 February 2024
The Louisiana state capitol in Baton Rouge.Photograph: Stephen Smith/AP
Louisiana’s far-right government has quietly obtained hundreds of pages of communications between the Environmental Protection Agency and journalists, legal advocates and community groups focused on environmental justice. The rare use of public records law to target citizens is a new escalation in the state’s battle with the EPA over its examination of alleged civil rights violations in the heavily polluted region known as “Cancer Alley”.
Louisiana sued the EPA on 19 December, alleging that the federal agency had failed to properly respond to the state’s sprawling Freedom of Information Act, or FOIA, request sent by former state attorney general Jeff Landry.
Court filings note that the public records case is related to another, ongoing lawsuit brought against the EPA by Landry, a staunch advocate for the oil and gas industry who now serves as Louisiana’s governor. Shortly after Landry’s suit was filed, the EPA dropped its investigation into the Louisiana department of environmental quality’s permitting practices, which advocates say disproportionately impact Black residents in Cancer Alley.
News that the state has sought to obtain such an array of communications as part of its efforts prompted allegations of intimidation from many of the Black residents who were targeted. It has also raised press freedom concerns for media organizations included in the request, described by FOIA experts as extremely unusual.
“The Louisiana attorney general’s office protects industry more than they protect the people,” said Sharon Lavigne, a resident of St James parish who has long fought industrial proliferation in her community, and whose emails were targeted in the request. “Maybe that’s why they got all of these emails, just to see what we’re doing and to see how they can stop us.”
Landry filed the request on 29 June 2023, just one day after the EPA announced it was dropping its Cancer Alley civil rights investigation.
The request seeks all records since March 2021 regarding “environmental justice in Louisiana, the Industrial Corridor in Louisiana”, and “the area called Cancer Alley”. It lists six advocates by name, all of whom are Black, as well as the organizations Rise St James, The Deep South Center for Environmental Justice, and several other community and law groups who have represented Cancer Alley residents.
Due to the expansive nature of the request, the EPA said it would take more than a year to locate and provide all the records. Louisiana then sued to compel the agency to move more quickly.
The Louisiana attorney general’s office declined to answer questions from the Guardian and the Intercept over why it had requested such information, but filings in its FOIA lawsuit accuse the EPA of “prodigiously leaking information to the press” and allowing environmental advocacy groups to hold undue influence on decisions.
An environmental law group said the AG’s accusations of external influence were hypocritical, noting that Landry’s office previously hired petrochemical lawyers to represent the state in its negotiations with the EPA. Those same lawyers were simultaneously representing one of the companies at the center of the EPA’s civil rights investigation, the Taiwanese petrochemical giant Formosa.
Landry’s request specifically seeks records containing mention of Formosa, as well as the Japanese firm Denka. Both companies are at the heart of ongoing campaigns and litigation in the region. Lavigne’s group, Rise St James, has been instrumental in thus far stopping Formosa from building a massive, multibillion dollar plastics plant in their parish. A Louisiana appeals court recently reinstated Formosa’s air permits, overturning a 2022 ruling.
The request also asks for emails with national and local media including MSNBC, the Washington Post and the Advocate, specifying nine journalists by name.
The co-author of this article, the Guardian’s Oliver Laughland, was one of the named journalists. “We are deeply concerned by what appears to be an attempt to intimidate journalists and interfere with their ability to report on alarming matters of environmental injustice – in particular, the dangerous toxicity of air in predominantly Black areas of Louisiana,” said Guardian US general counsel Kai Falkenberg.
“FOIA is an essential tool for informing the public on the workings of government, but in this case, we’re concerned that the state of Louisiana is abusing that law to prevent reporters from engaging in newsgathering on matters of public interest to readers in Louisiana and around the world.”
The EPA declined to answer questions from the Guardian and the Intercept, citing litigation, but it provided the 940 pages of documents already handed to the Louisiana justice department. Further releases are scheduled for 2 February.
The documents, many of which were heavily redacted, contain typical requests for comment from several journalists, internal EPA discussions over drafting and scheduling, and EPA exchanges with environmental lawyers and nonprofits, including a list of the attendees at a meeting of leading Cancer Alley advocates.
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Public records law in the US dictates that, with certain exemptions, communications by or with local, state and federal employees must be made available to the public. The law is intended to preserve government transparency.
David Cuillier, director of the Freedom of Information Project, said that requests for communications between the government and citizens – including journalists – are not uncommon. But those requests are typically made by other journalists, law groups, or members of the public – not state governments.
“It’s totally weird and rare for a government agency to request, one, records from another agency, and, two, all the communications about these advocates and citizens and journalists,” Cuillier said.
Bill Quigley, long-time director of Loyola University’s law clinic, also noted that “it is not at all common for states to sue the federal government over FOIA disputes”.
In a previous survey, Cuillier and his colleague found that only about 2% of public records requests are made by another government agency. Cuillier argued it would be in the best interests of Louisiana’s department of justice to be transparent over the FOIA’s purpose. Otherwise, he said, it gives the appearance that the state is “spying on political opponents”.
An environmental group likewise said that the requests, while lawful, would have a chilling effect on local advocates’ efforts – including those not specifically named by the request. The group, which asked not to be named, suggested the records request is an attempt to shift the narrative, framing the EPA as suspect, rather than polluters themselves.
Robert Taylor, an 83-year-old lifelong resident of St John parish who leads an advocacy organization in Cancer Alley, one of the most polluted communities in the US, said it was “frightening” and “horrible” to know the state government had targeted his emails.
“It’s certainly intimidation. What other reason could there be for it?” Taylor said.
Louisiana’s lawsuit against the EPA’s Cancer Alley investigation is continuing and expected to advance to the supreme court. In a recent hearing, Judge James D Cain, appointed by former president Donald Trump, rejected the EPA’s motion to dismiss and appears ready to side with Louisiana, citing “the whims of the EPA and its overarching mandate”. Cain, who is also presiding over Louisiana’s FOIA lawsuit, issued a ruling on 23 January temporarily blocking the EPA from enforcing some aspects of civil rights law in Louisiana.
Troy Carter, Louisiana’s lone Democrat in Congress whose district includes the Cancer Alley region, urged the state government to drop both lawsuits against the EPA and its pursuit of records.
“This would remove any need for these citizens’ private conversations with the government to be disclosed,” Carter said. “The first amendment protects the right to free speech. The government should not have any appearance of targeting private individuals in a manner that could inhibit freedom.”
This article was published in partnership with the Intercept
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