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South Camden Citizens in Action v. New Jersey Department of Environmental Protection: Will §1983 Save Title VI Disparate Impact Suits?

April 2002

Citation: ELR 10454

Author: Bradford C. Mank

During 2001, an environmental justice suit by neighborhood groups challenging the siting of a cement plant in a minority neighborhood in South Camden, New Jersey, resulted in three complex and important decisions regarding whether there is a right to enforce in federal court the U.S. Environmental Protection Agency's (EPA's) Title VI regulations prohibiting disparate impact discrimination by recipients of the Agency's funding. The environmental justice plaintiffs won two decisions in the district court, but the U.S. Court of Appeals for the Third Circuit reversed, with one judge dissenting. The outcome in the Third Circuit was strongly influenced by a U.S. Supreme Court decision in April 2001, holding that there is no private right of action in federal court to enforce Title VI disparate impact regulations. Despite their defeat in the Third Circuit, environmental justice advocates can still file Title VI administrative complaints with EPA alleging that a state or local environmental agency receiving federal funding has engaged in practices resulting in disparate impact discrimination. Further, the district court's decisions in the South Camden cases can still serve as a model for EPA in deciding disparate impact complaints.

On April 19, 2001, in South Camden Citizens in Action v. New Jersey Department of Environmental Protection (SCCIA I),1 the U.S. District Court for the District of New Jersey for the first time found that a state agency's issuance of an environmental permit violated EPA's disparate impact regulations under § 602 of Title VI of the 1964 Civil Rights Act2 despite the state agency's compliance with all applicable environmental statutes and regulations. The New Jersey Department of Environmental Protection (NJDEP) argued that its issuance of a permit to applicant St. Lawrence Cement Co., L.L.C. (SLC),3 for a proposed cement plant would not violate Title VI because the facility would comply with all applicable federal and state laws and regulations.4 However, in light of EPA's two draft guidances5 on Title VI and its Select Steel6 decision involving a Title VI administrative complaint, SCCIA I concluded that recipients of federal aid have a distinct duty under EPA's Title VI regulations to prevent significant unjustified disparate impacts to protected minority groups even if avoiding such impacts requires the recipient to go beyond requiring compliance with existing laws. The court found that the plaintiffs had established a prima facie case of disparate impact discrimination by submitting substantial evidence that the surrounding predominantly minority community would suffer significant adverse harms from the facility's particulate and ozone precursor emissions. Notably, the court concluded that the NJDEP had a duty under Title VI to consider the cumulative pollution impacts of the proposed plant in an area with a large number of existing polluters. In SCCIA I, Judge Stephen M. Orlofsky concluded that the NJDEP had violated its duties under Title VI to the residents of the Waterfront South community in South Camden because the NJDEP had refused to [32 ELR 10455] consider the SLC's cumulative health impacts on a predominantly minority community already burdened with numerous polluting industries. The SCCIA I court granted the plaintiffs' request for a preliminary injunction, vacated the NJDEP's issuance of air permits to the applicant, and remanded the case to the NJDEP to address the issues raised in its opinion.

Brad Mank is a James B. Helmer Jr. Professor of Law at the University of Cincinnati. He would like to thank Theresa Zawacki for her research assistance. Professor Mank, along with several other law school professors, joined an amicus brief in support of the plaintiffs-appellees.

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