Environmental Justice, the concept that describes discriminatory siting of polluting facilities in, or disproportionately affecting, minority communities, has been a topic of growing concern in the environmental field over the past several years, but has almost never garnered the attention of the courts. In a volley of recent judicial decisions, however, the concept was infused with new judicial support, nearly snuffed out and then rekindled again. It now stands on uncertain ground awaiting a decision of the Court of Appeals for the Third Circuit.
Environmental Justice was first recognized around 1996, after a neighborhood group in Pennsylvania used Sections 601 and 602 of Title VI of the federal Civil Rights Act of 1964 to challenge the issuance of environmental permits due to an alleged disparate impact to a predominantly minority community. See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997). Section 601 prohibits intentional discrimination in programs and activities receiving federal financial assistance. Section 602 requires federal agencies providing financial assistance to adopt rules and regulations to prevent disparate impact on minority groups. In Chester, the Third Circuit found that Title VI created a private right of action to enforce those regulations. The United States Supreme Court agreed to hear the case, but the issue was declared moot when the applicant withdrew the permit application. Environmental Justice challenges in courts since then have been largely absent.
In the recent case of South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 2001 WL 392472 (D.N.J. 2001) ("SCCIA I"), though, Environmental Justice received a judicial boost. Residents filed suit against NJDEP for injunctive and declaratory relief, alleging that NJDEP had violated Title VI by approving air permit applications for a cement facility that was to be built in an area that already contained two Superfund sites, a trash incinerator, a sewerage treatment plant and fifteen known contaminated sites. Actually, at the time the suit was filed, construction of the cement plant was nearly complete. Of nearby residents, 91% were minorities and many already suffered from respiratory ailments.
In deciding the case, the District Court focused on two issues: (1) whether NJDEP violated Environmental Protection Agency's ("EPA") Title VI regulations by limiting review of the permit applications to compliance with EPA emissions limits; and (2) whether issuance of the air permits had a disparate impact in violation of EPA's §602 regulations.
In considering the first issue, the Court concluded that NJDEP, as a recipient of federal funding, was required to consider racially discriminatory disparate impacts in its permitting decisions. The Court further found that, by limiting its review and omitting consideration of the totality of the circumstances, NJDEP violated EPA's §602 regulations. For instance, the Court noted that NJDEP did not consider statistical data on the local health conditions, impacts of emissions from trucks entering and leaving the facility, or -- in reviewing particulate matter PM-10 issues -- proposed EPA regulations concerning particulate matter PM-2.5. On the second issue, the Court examined the factors mentioned above and concluded that the plaintiffs had made a prima facie showing of disparate impact discrimination.
As relief, the Court issued a declaratory judgment that NJDEP had violated Title VI by failing to consider the totality of the circumstances. On April 19, 2001, the Court also issued a preliminary injunction rescinding the permits and enjoining the facility from operating. In determining that injunctive relief was appropriate, the Court applied a four-prong Title VI disparate impact test that had been set forth in Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999), cert. denied, 528 U.S. 1046 (1999). The Court also had relied on Powell as support for its holding that Title VI created an implied private right of action. This underpinning of the SCCIA I decision, however, was dealt a serious blow by a decision of the United States Supreme Court five days later.
On April 24, 2001, the Supreme Court decided Alexander v. Sandoval, 2001 WL 408983 and held, in a 5-4 decision, that Title VI did not create a private cause of action to enforce regulations promulgated under §602. Although Sandoval was not an environmental case, the holding cast doubt on the SCCIA I opinion. In response to the decision, the SCCIA I District Court requested briefs analyzing the effect of Sandoval on the preliminary injunction.
The District Court then issued a second opinion, SCCIA II, on May 10, 2001, holding that Sandoval did not preclude plaintiffs from pursuing their claim of disparate impact discrimination in violation of EPA's §602 regulations under the Civil Rights Act. The District Court found that Sandoval was limited to a determination that §602 did not itself create a private right of action. Sandoval did not, it said, foreclose a private party from bringing a claim under §1983 of the Civil Rights Act alleging disparate impact discrimination in violation of EPA's §602 regulations. Section 1983 is a broader provision which allows any private citizen to sue a state for deprivation of any right, privilege or immunity secured by the Constitution and laws.
To confirm the propriety of the action, the SCCIA II Court conducted an analysis under §1983. The Court examined (1) whether there was a violation of a federal right and (2) whether a remedy under §1983 was specifically foreclosed by Congress. Finding that the plaintiffs could enforce the EPA §602 disparate impact discrimination regulations under §1983, the Court left SCCIA I intact, and remanded the permit application to NJDEP to make appropriate findings consistent with the Court's ruling and to file those findings with the Court within 30 days.
On June 15, 2001, the United States Court of Appeals for the Third Circuit issued an Order staying the Order of the District Court which revoked the issued permits. The Third Circuit indicated that one of the issues it would evaluate was whether §602 of Title VI creates a federal right for purposes of a §1983 analysis, as held by the District Court. The appeal has been expedited and the case is listed to be heard during the week of July 30, 2001.
