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South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection

Citation: 32 ELR 20425
No. Nos. 01-2224, -2296, 274 F.3d 771/(3d Cir., 12/17/2001) rev'd

The court holds that because Title VI proscribes only intentional discrimination, residents of a predominantly minority community do not have a right to enforce through 42 U.S.C. §1983 the U.S. Environmental Protection Agency's (EPA's) Title VI §602 disparate impact discrimination regulations against a state agency that issued an air permit to a cement plant. The community already has two Superfund sites and more than twice the number of permitted facilities already emitting air pollution than exist in typical New Jersey zip code areas. Residents of the community filed a complaint against the Agency alleging that the Agency intentionally discriminated against them in violation of §601 of Title VI by issuing the air quality permit and further asserted that the facility would have an adverse disparate impact on them in violation of §602. A district court granted a preliminary injunction to the residents and found that §602 and EPA's implementing regulations contained an implied private right-of-action. Five days later, the U.S. Supreme Court issued Alexander v. Sandoval, 532 U.S. 275 (2001), in which it held that Title VI did not create a private right-of-action to enforce regulations promulgated under §602. The district court then allowed the residents to amend their complaint to enforce §602 through §1983 and issued a supplemental order and opinion continuing the preliminary injunction based on the residents' §1983 claim, holding that Sandoval did not bar the plaintiffs from using §1983 to enforce the federal rights in EPA's Title VI §602 disparate impact regulations. The court first holds, however, that disparate impact regulations promulgated under §602 do not create a right that may be enforced through a §1983 action. Based on Sandoval and previous Supreme Court cases, the only right conferred by §601 is to be free of intentional discrimination, and §602 limits agencies to effectuating rights already created by §601. Thus, §602 does not grant a right to be free from disparate impact discrimination. The court next holds that EPA's regulations at issue here do more than define or flesh out the content of a specific right conferred on the residents by Title VI. Instead, EPA's regulations implement Title VI to give the statute a scope beyond what the U.S. Congress contemplated and, therefore, are too far removed from congressional intent to constitute a federal right enforceable under §1983.

[The district court's decision in this litigation is published at 31 ELR 20675.]

Counsel for Appellants
Stefanie A. Brand, Deputy Attorney General
Attorney General's Office
R.J.H. Justice Complex
25 Market St., CN-080, Trenton NJ 08625
(609) 292-4925

Counsel for Appellees
Michael Churchill
Public Interest Law Center of Philadelphia
125 S. 9th St., Ste. 700, Philadelphia PA 19107
(215) 627-7100

Greenberg, J. Before McKee, J., dissenting, and Ambro, J.