Environmental Justice

Earlier this month the Third Circuit Court of Appeals voted 9-3 against rehearing the St. Lawrence Cement environmental discrimination case before the full 12-judge panel. The district court's rulings, which were reversed, had the potential, if followed elsewhere, to subject vast aspects of commercial activities to disparate impact analyses by the relevant agencies.

In December, the Third Circuit decided in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001), that plaintiffs could not maintain their action under 42 U.S.C. § 1983 for disparate impact discrimination. The Third Circuit held that "an administrative regulation cannot create an interest enforceable under section 1983 unless the interest already is implicit in the statute authorizing the regulation, and that inasmuch as Title VI proscribes only intentional discrimination, the plaintiffs do not have a right enforceable through a 1983 action."

Plaintiffs alleged that the New Jersey Department of Environmental Protection ("NJDEP") discriminated against them by issuing an air permit to St. Lawrence Cement Co. to operate a facility that would have an adverse disparate racial impact upon them in violation of Title VI of the Civil Rights Act of 1964 and its implementing regulations. In April 2001 U.S. District Judge Stephen M. Orlofsky issued an injunction that barred the opening of an already built $50 million cement plant in Camden. See South Camden Citizens in Action v. NJDEP, 145 F. Supp. 2d 446, 505 (D.N.J. 2001) ("South Camden I"). In South Camden I, Judge Orlofsky found that section 602 of Title VI contained an implied private right of action. The case was remanded to the NJDEP for a Title VI analysis to consider the disparate impact on a minority neighborhood for which permits had already been issued for a regional sewage treatment plant, a trash-to-steam incinerator and a co-generation plant.

Shortly after the injunction was issued, however, the U.S. Supreme Court handed down Alexander v. Sandoval, 532 U.S. 275 (2001). The 5-4 Sandoval decision eliminated the basis for the injunction by holding that Title VI does not create a private right of action to enforce "disparate impact" regulations promulgated under section 602. Based on Sandoval, St. Lawrence Cement moved to dissolve the injunction. Judge Orlofsky denied the request and allowed the plaintiffs to amend their complaint to add a claim to enforce section 602 through section 1983. In May 2001 a supplemental opinion and order was issued by the district court continuing the preliminary injunction based on plaintiffs' section 1983 claim. See South Camden Citizens in Action v. NJDEP, 145 F. Supp. 2d 505 (D.N.J. 2001) ("South Camden II").

The Third Circuit suspended the injunction pending appeal in June 2001. Then, in December, the appeals court ruled that none of the opinions relied upon by Judge Orlofsky, including the decision in in Powell v. Ridge, 189 F. 3d 387 (3d Cir.), cert. denied, 528 U.S. 1046 (1999), justified the district court's conclusion that valid regulations may create enforceable rights under section 1983: "But Powell did not analyze the foundation issue that is central here, i.e., whether a regulation in itself can create a right enforceable under section 1983. Thus, while plaintiffs rely heavily on Powell, that reliance is misplaced, and, accordingly, quite aside from the impact of Sandoval, Powell could not control the outcome here."

The Circuit Court also found that language in Sandoval and other U.S. Supreme Court decisions shows that section 1983 cannot be used to enforce a regulation unless the statute itself created the right. According to the decision, applicable Supreme Court precedent limits the use of section 1983 in enforcing regulations to cases in which the plaintiffs could show that the regulation was "entitled to deference as valid administrative interpretations of the statute" and in which "Congress had conferred upon plaintiffs that right by statute."

The Third Circuit found that the Supreme Court's "primary concern" in evaluating the viability of federal claims under section 1983 "has been to ensure that Congress intended to create the federal right being advanced." The Third Circuit then held "that a federal regulation alone may not create a right enforceable through section 1983 not already found in the enforcing statute. Similarly, we reject the argument that enforceable rights may be found in any valid administrative implementation of a statute that in itself creates some enforceable right. Applying these rules here, it is clear that, particularly in light of Sandoval, Congress did not intend by adoption of Title VI to create a federal right to be free from disparate impact discrimination and that while the EPA's regulations on the point may be valid, they nevertheless do not create rights enforceable under section 1983."