Tort claims and toxic tort claims have long been a vehicle to address the gaps left by statutes. Butler v. Denka raises a fundamental question: can citizens successfully sue a factory that caused multiple cancer illnesses in their community by emitting excessive pollution? In Butler v. Denka, the District Court denied plaintiff Juanea L. Butler’s tort claim, finding that the defendant, Denka Performance Elastomer, LLC, did not owe the plaintiff a duty of care. The U.S. Court of Appeals for the Fifth Circuit upheld the decision. In later decisions, however, district courts have ruled differently in cases concerning the same geographical area in Louisiana. These courts recognized a duty of care based on Title 33 of the Louisiana Administrative Code and its sections relating to fugitive emission control.
Butler is one of many cases that aimed to provide relief to communities harmed by pollution. The area has been in the public spotlight for having some of the highest concentrations of toxic chemicals in predominantly Black communities. The health impacts on adjacent communities are so startling that the EPA addressed a letter to Louisiana state agencies, stating that “Louisiana residents who identify as Black and are living and/or attending school near the Denka facility have been subjected to adverse and disparate health impacts as a result of LDEQ’s [Louisiana Department of Environmental Quality] decisions.” However, in July 2023, the EPA announced that it had closed its investigation without taking further action under Title VI or other civil rights laws after being challenged in federal court. A tort claim could be part of a larger struggle to address this environmental injustice.