A federal appellate court has effectively blocked EPA from swift enforcement of stricter regulations on a Louisiana synthetic rubber manufacturer that has featured prominently in the Biden administration’s campaign to target pollution in the area often dubbed “Cancer Alley.”
In a stay order issued late Wednesday, a three-judge panel on the 5th U.S. Circuit Court of Appeals endorsed a recent decision by Louisiana regulators to give Denka Performance Elastomer (DPE) until mid-2026 to meet tighter limits on emissions of chloroprene, an organic compound that EPA deems a likely carcinogen.
Under the strengthened regulations published in May, the federal agency had set an October compliance deadline on the grounds that the plant, located near an elementary school, posed an imminent danger to public health. If it stands, the 5th Circuit’s order would circumvent earlier rulings by the U.S. Court of Appeals for the District of Columbia Circuit that no stay was warranted.
The New Orleans-based 5th Circuit is often ranked as the nation’s most conservative appellate court. The three-judge panel included Kurt Engelhardt, named to the appellate bench by former President Donald Trump, as well as James Graves Jr., an Obama pick, and Jerry Smith, a Reagan appointee.
While the D.C. Circuit is the usual arbiter of nationally applicable regulations, Denka’s tactics resemble those employed last year by foes of a separate EPA “good neighbor” smog control rule.
Those state and industry opponents successfully used decisions by the 5th Circuit and other regional appellate courts on a related regulatory measure to hamstring the rule’s implementation in many states before the Supreme Court blocked it altogether this past June.
Denka is the United States’ only manufacturer of neoprene, a synthetic rubber used in products ranging from gasoline hoses to wet suits. In seeking the 5th Circuit order, the company had reiterated that it would likely have to shut down permanently if the October deadline remained in place.
“Under these dire circumstances, DPE must obtain certainty” that the extension granted by the Louisiana Department of Environmental Quality “is valid, and quickly,” Denka lawyers wrote in the motion filed last month.
But in a rebuttal motion last week, attorneys for EPA accused the company of mounting a “collateral attack” on the new regulations that “improperly duplicates the D.C. Circuit litigation and risks inconsistent rulings.”
EPA is now reviewing the 5th Circuit’s decision, spokesperson Tim Carroll said in a Thursday email. In a statement, Denka officials said they were pleased with the ruling, “which provides important, near-term certainty to our company and the 250 employees at our facility.”
The plant is located in St. John the Baptist Parish, a predominantly Black area located in the Mississippi River corridor between Baton Rouge and New Orleans that owes its Cancer Alley nickname to the preponderance of petrochemical plants and other industrial operations.
The parish was one stop on EPA Administrator Michael Regan’s “Journey to Justice” tour in late 2021 intended to highlight President Joe Biden’s efforts to combat the disproportionate impact of pollution on people of color and low-income communities. Early last year, EPA brought a separate enforcement suit against Denka that is now on hold with the U.S. District Court for the Eastern District of Louisiana until at least October.
While the company notes that the plant’s chloroprene emissions have plummeted in recent years, those releases still totaled more than 19 tons in 2022, according to the most recent final data available from EPA’s Toxics Release Inventory.
After challenging the stricter EPA regulations in the pending D.C. Circuit litigation, Denka brought the 5th Circuit suit last month soon after the Louisiana Department of Environmental Qualitygranted the compliance deadline extension. While the approval letter listed the new cutoff as October 2026, a Denka spokesperson Thursday called that a clerical error and indicated that the correct date is mid-July 2026.
