Community groups in Louisiana have filed a federal lawsuit alleging a state law that regulates air-pollution monitoring violates their constitutional rights.
Private organizations have been using low-cost air sensors to detect toxic pollution from the state's refineries and chemical plants. The testing, some of which has been funded by the Environmental Protection Agency, serves as a critical line of defense, environmental and public health advocates say, especially for residents of an industrial corridor in Louisiana known as Cancer Alley. Air testing by community groups can fill gaps in monitoring programs conducted by industry and state regulators, advocates say, and provide real-time alerts when accidents happen.
Last year, Louisiana lawmakers put new requirements on those community testing activities. The law says that for community groups to allege violations of environmental rules, they have to use federally-approved monitoring equipment, and it sets restrictions for analyzing and sharing the data.
Several community groups said in a complaint in Louisiana federal court on Thursday that the law's "onerous restrictions" violate their rights to free speech and to petition the government.
"This is just an obvious attempt to keep citizen groups from doing any monitoring," says David Bookbinder, a lawyer for the plaintiffs and the director of law and policy at the Environmental Integrity Project, which helps frontline communities push for tough environmental standards.
"The impact has been muzzling — groups either stopping doing monitoring, not starting to do monitoring that they wanted to do or no longer publishing results," Bookbinder says.
The community groups' free-speech claims are based on Louisiana's alleged restrictions on "publicly discussing, advocating for cleanup action, or warning people about potentially dangerous air pollution" when it's detected using air monitors that don't meet federal standards, according to the Environmental Integrity Project.
Jo Banner, co-director of The Descendants Project, one of the plaintiffs in the lawsuit, says the new law has made it harder to take action against polluters.
"We are prepared to just keep moving forward with the work that we've been doing and trying our best to communicate that to the public," Banner says. She adds, "If we have [data] that is alarming, our community needs to know for their own safety."
Louisiana Attorney General Liz Murrill said she'll fight the lawsuit. "I'm not sure how regulating community air monitoring programs 'violates their constitutional rights,'" Murril said in a statement to NPR.
The state's Department of Environmental Quality declined to comment on pending litigation. The bill's sponsor, Republican Sen. Eddie Lambert, didn't respond to messages seeking comment.
The air-monitoring law, which had bipartisan support, says the intent is to ensure the public gets "accurate air quality information."
David Cresson, chief executive of the Louisiana Chemical Association, said in a statement that the air-monitoring law doesn't prevent community groups from collecting or sharing data. "What this law clarifies is that if air monitoring data is going to be used to trigger regulatory enforcement, penalties, or as the sole source for a lawsuit, it must meet the same EPA-approved standards already required of industry and government agencies," Cresson said.
Critics say ambiguities in the law are part of the problem
George Wyeth, a visiting scholar at the Environmental Law Institute, says the law is still concerning. For example, if community groups detect high levels of certain pollutants in their area and suggest there's been an environmental violation, it's unclear if that would break the new law. It's also unclear, Wyeth says, what groups have to do when they analyze and communicate air-pollution data to comply with the law.
"If I were a community member, I wouldn't know what some of these [requirements] meant, and I would probably just stay away from it," says Wyeth, a former EPA lawyer who isn't involved in the lawsuit.
Kentucky recently enacted a law that's similar to Louisiana's.
Those laws were passed following several years during which community groups conducted more air monitoring as lower-cost testing equipment became widely available, says Jay Benforado, board chair of the Association for Advancing Participatory Sciences, which isn't involved in the Louisiana lawsuit.
However, Benforado says it's unclear if there's an actual problem that needs solving by passing laws like those in Louisiana and Kentucky. "We've asked people, can you give us an example of where community air monitoring data has been misused in a government enforcement case? And we haven't come across any examples," he says.
Banner of The Descendants Project says the Louisiana law effectively labels groups like hers as "troublemakers."
"If you want to see bipartisan cooperation, you should look to Louisiana and the way that we invite industry to come in, and the dangers that communities face," Banner says. "And both sides, all sides, support this."
Democratic state lawmakers who represent Banner's district didn't respond to a message seeking comment.
"It is the job of our regulatory agencies to protect us, to protect our air, to protect our health. And if that standard is not being met and people are going out to do it by themselves, that seems to be indicating that there's a problem at that first step," says Peter DeCarlo, an atmospheric chemist at Johns Hopkins University who has studied air pollution in Louisiana.
DeCarlo was part of a team of researchers that found the toxic gas ethylene oxide in parts of Louisiana at levels that were significantly higher than EPA estimates for the region. That suggests residents there face much greater cancer risks than previously thought, DeCarlo says.
"Now, there's retaliation against community groups for going out and trying to figure out what's going on in their air," DeCarlo says, "and if they're being impacted, and how they're being impacted."
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