32 ELR 10454 | Environmental Law Reporter | copyright © 2002 | All rights reserved

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

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.

[32 ELR 10454]

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.

However, on April 24, 2001, the Supreme Court in Alexander v. Sandoval⁷ held in a five-to-four decision that there is no private right of action to enforce disparate impact regulations promulgated under § 602 of Title VI. The majority concluded that neither § 602's language nor subsequent amendments to Title VI demonstrated congressional intent to establish a private cause of action to enforce § 602.⁸ Accordingly, Justice Antonin Scalia, writing for the majority, held that "neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602. We therefore hold that no such right of action exists."⁹ Sandoval clearly rejected the private right of action theory used in SCCIA I.

Within hours after Sandoval was decided, Judge Orlofsky asked counsel to address the impact of the Supreme Court's case on SCCIA I. In particular, Judge Orlofsky asked the parties to address the novel issue of whether the same disparate impact regulations that could no longer be enforced through a private right of action brought directly under § 602 of Title VI could be enforced pursuant to 42 U.S.C. § 1983.¹⁰ In his dissenting opinion in Sandoval, Justice John Paul Stevens had argued that future plaintiffs could enforce Title VI's § 602 disparate impact discrimination regulations through a suit under § 1983 instead of directly suing as a private right of action.¹¹

In his May 10, 2001, supplemental opinion in South Camden Citizens in Action v. New Jersey Department of Environmental Protection II (SCCIA II),¹² Judge Orlofsky concluded that the Sandoval decision did not bar the plaintiffs from using § 1983 to enforce the federal rights in EPA's Title VI § 602 disparate impact regulations. Furthermore, the court held that the plaintiffs were still entitled to preliminary injunctive relief against the NJDEP and the SLC because the proposed permit violated EPA's disparate impact discrimination regulations under Title VI, as enforced through § 1983.¹³ The court denied the SLC's motion to vacate or at least stay the injunctive and other relief ordered in SCCIA I.¹⁴ However, on June 15, 2001, a three-judge motions panel of the Third Circuit issued an order granting the SLC's request to stay the district court's injunction and, thus, allowed the facility to operate pending the SLC's appeal.¹⁵

On December 17, 2001, the Third Circuit in a two-to-one decision reversed the district court because the majority concluded that, in light of Sandoval, Title VI proscribes only intentional discrimination and, therefore, the plaintiffs did not have a right to enforce EPA's Title VI disparate impact regulations through § 1983.¹⁶ In dissent, Judge Theodore A. McKee argued that Sandoval had only addressed whether there is a remedy—a private right of action—available under Title VI disparate impact regulations and not whether they contain a right enforceable under § 1983.¹⁷ Judge McKee argued that the plaintiffs had demonstrated a reasonable probability of success on the merits and would have affirmed the district court's grant of preliminary injunctive relief.¹⁸

After providing background on Title VI and EPA's implementing regulations and guidance, this Article addresses each of these decisions in detail. The SCCIA I decision provides the most detailed discussion in any Title VI case of how cumulative impacts from pollution may harm minorities despite a facility's compliance with all applicable laws. The SCCIA II decision presents a convincing rationale for using § 1983 to enforce Title VI's § 602 disparate impact regulations. Unfortunately, the Third Circuit rejected the use of § 1983 to enforce these regulations. The Third Circuit's decision is contrary to its prior precedent, although it may reflect the current views of the majority of the Supreme Court as reflected in Sandoval's dicta. Although the plaintiffs, in the end, were unable to overturn the SLC's air permit, the decisions provide guidance to EPA in future permitting decisions and place pressure on the Agency to issue a final Title VI guidance.

[32 ELR 10456]

Title VI

Introduction to EPA's Title VI Regulations

Section 601 of Title VI of the Civil Rights Act of 1964 forbids intentional discrimination by programs or activities receiving federal financial assistance.¹⁹ Additionally, § 602 of Title VI requires federal funding agencies to adopt and enforce regulations that prohibit recipients from engaging in discrimination and that establish a process for investigating possible violations by recipients.²⁰ Since 1964, all federal agencies have consistently interpreted § 602 to prohibit recipients from engaging not only in intentional discrimination, but also in practices having discriminatory effects.²¹

First promulgated in 1973 and then revised in 1984, EPA's Title VI regulations prohibit recipients of Agency funding, which include almost all state environmental agencies, from engaging in actions that either intentionally discriminate or cause disparate impacts.²² Additionally, EPA's Title VI regulations require state recipients to create a compliance scheme to prevent discrimination by both the state and beneficiaries of state-administered funds.²³ Furthermore, the Agency's Title VI regulations define procedures for investigating possible violations by recipients.²⁴

On February 11, 1994, President William J. Clinton issued Executive Order No. 12898, which directs all federal agencies to promote environmental justice "to the greatest extent practicable and permitted by law."²⁵ Additionally, President Clinton simultaneously published a Presidential Memorandum to accompany Executive Order No. 12898 that states:

In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or other arrangements that discriminate on the basis of race, color, or national origin.²⁶

The Presidential Memorandum was significant because it alerted federal agencies that they needed to review their Title VI programs to make sure that recipients' programs or activities affecting the environment or public health were not causing intentional or disparate impacts harming minority groups.

In 1994, EPA created an Office of Civil Rights (OCR) to handle Title VI investigations.²⁷ Any person who is allegedly adversely affected by the actions of a recipient of EPA funding may file a Title VI complaint with the OCR, which will determine if the complaint is within the Agency's jurisdiction and begin an investigation if appropriate.²⁸ Unfortunately, the OCR has had serious problems resolving complaints in a timely fashion as a result of both staff shortages and substantial uncertainties about how to apply its Title VI regulations.²⁹ By May 31, 2001, EPA had a backlog of 68 pending complaints.³⁰ Of these, 47 were under review for possible investigation and 21 had been accepted for investigation.³¹ In the Agency's defense, from October 1998 until September 30, 2001, congressional budget restrictions prevented the Agency from accepting new complaints for investigation.³² Yet some of the delays cannot be blamed on the U.S. Congress and are the fault of EPA. Several pending accepted cases were filed in 1993 and 1994 even [32 ELR 10457] though the Agency's regulations normally require it to issue preliminary findings within 180 days from the start of an investigation.³³

EPA has repeatedly promised to reduce its backlog of Title VI complaints. Since 1998, the Agency has doubled its staff resources and contract dollars devoted to Title VI complaints.³⁴ Despite proposing overall budget cuts for EPA, President George W. Bush's proposed 2002 budget for the Agency includes more money to process pending Title VI complaints.³⁵ On May 3, 2001, EPA Administrator Christine Todd Whitman announced in a memorandum that she planned to issue by June 1, 2001, a comprehensive strategy to "fully eliminate" the Title VI backlog within two years.³⁶ During July 2001, she established a special task force within EPA's Office of Enforcement and Compliance Assurance to address the backlog of Title VI complaints.³⁷ In an August 9, 2001, memorandum, Administrator Whitman reaffirmed the Agency's commitment to environmental justice, although she did not specifically address the Title VI program.³⁸ By February 7, 2002, EPA had reduced the number of pending complaints from 68 to 44, the number under review from 47 to 8, and increased the number accepted for investigation from 21 to 36.³⁹ The Agency has made significant progress, at least in reviewing complaints for investigation. However, many civil rights advocates wonder if the Agency will treat complainants fairly if complaints are reviewed too quickly.⁴⁰

In November 1998, EPA for the first and so far only time decided a Title VI complaint in a detailed decision on the merits and found no adverse impact.⁴¹ It rejected a complaint challenging Select Steel's proposed construction of a steel plant in Flint, Michigan, because the facility was in compliance with the Clean Air Act's (CAA's) health-based national ambient air quality standards (NAAQS) for ozone and lead.⁴² In its Select Steel decision, EPA stated that a recipient's compliance with the Agency's health-based NAAQS created a presumption that there were no significant adverse effects on minority groups unless the complainant could present evidence that the standards were insufficient to protect a particular minority group in a specific area.⁴³ As discussed below, EPA's draft guidances and the SCCIA I decision adopt Select Steel's approach that the NAAQS are generally protective of human health and that a funding recipient is presumptively in compliance with Title VI if it meets them, but that a plaintiff or complainant may introduce evidence showing that the national standards fail to protect particular minority groups or subpopulations in a given case.

Because EPA has moved so slowly in processing Title VI complaints, some environmental justice advocates sought to enforce the statute and the Agency's regulations through a private right of action.⁴⁴ Four months after filing a Title VI administrative complaint with EPA's OCR and receiving no response, the plaintiffs in SCCIA I filed their complaint in district court.⁴⁵ Prior to the Supreme Court's Sandoval decision, most lower courts had recognized that citizens have a private right of action under § 602 of Title VI to enforce agency regulations.⁴⁶ Sandoval forecloses direct § 602 private suits.⁴⁷ If followed by other courts, the Third Circuit's decision in South Camden would prevent plaintiffs from using § 1983 suits to enforce Title VI disparate impact regulations.⁴⁸

The Interim and Draft Guidances

EPA's Title VI regulations provide a basic framework for processing Title VI complaints but do not address the difficult substantive questions relating to what is a disparate impact. In February 1998, EPA issued its Interim Guidance for Investigating Title VI Administrative Complaints Challenging [32 ELR 10458] Permits (Interim Guidance) to help the OCR evaluate Title VI complaints. The Interim Guidance addressed the procedural process for filing complaints and set forth a five-step process for assessing whether a decision causes disparate impacts.⁴⁹ If the Agency found adverse disparate impacts, the Interim Guidance provided recipients with the opportunity to justify challenged permitting actions by either: (1) rebutting EPA's findings; (2) mitigating any disparate impacts; or (3) showing that the benefits of the project outweigh its adverse impacts.⁵⁰

A wide range of individuals and organizations agreed that the Interim Guidance was too vague in defining essential terms such as "disparate impact."⁵¹ From October 1998 until September 30, 2001, Republicans in Congress tried to force the Agency to revise its Title VI policies by attaching riders to EPA's appropriation bills that prohibited the OCR from using the Interim Guidance to conduct investigations into new complaints until the Agency issued a final Title VI policy.⁵² However, Republicans did not attach such a rider to EPA's 2002 appropriation bill because they have more confidence in how the Bush Administration will address Title VI issues.⁵³ In response to intense criticism of the Interim Guidance, EPA promised to revise its Title VI guidance.

On June 27, 2000, EPA simultaneously published two draft guidances on Title VI in the Federal Register as a single large document.⁵⁴ First, prepared at the request of state and local officials seeking to avoid complaints and violations, the Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance) discusses a range of possible approaches to minimize the likelihood that a complaint will be filed against a recipient.⁵⁵ Second, the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Investigation Guidance) clarifies how the Agency's OCR will process complaints, conduct its investigations, determine whether a permit decision creates unacceptable adverse impacts, and weigh efforts by the recipient to reduce or eliminate adverse disparate impacts.⁵⁶

The Agency collected public comments on the draft guidances for 60 days until August 28, 2000.⁵⁷ EPA also conducted seven national public listening sessions in major cities to receive additional feedback on the draft guidances.⁵⁸ After receiving the public comments, EPA promised to revise the draft guidances and publish them in "final" form.⁵⁹ However, the Agency has yet to do so and some believe that EPA will avoid doing so as long as possible to avoid the political hornets' nest associated with the difficult issues of balancing economic development and protecting minority groups from inequitable environmental risks.

Does Title VI Require Recipients to Exceed Existing

Environmental Standards to Prevent Significant Disparate Impacts to Minorities?

One of the most contentious issues regarding EPA's Title VI disparate impact regulations is whether they require recipients to deny a permit that meets existing state and federal standards if the permit will nevertheless cause significant disparate impacts to a minority group. EPA has indicated that Title VI sometimes requires recipients to exceed existing standards to prevent significant adverse disparate impacts to minorities.⁶⁰ Critics have questioned whether Title VI confers independent authority on EPA or state recipients to reject an otherwise valid environmental permit. Even if such authority exists, there are valid concerns about whether EPA has adequately defined when disparate impacts are sufficiently significant and adverse to warrant the denial or modification of a permit.

Some commentators have questioned whether EPA has the authority under Title VI to reject an otherwise valid permit and have suggested that the statute's scope is similar to Executive Order No. 12898.⁶¹ In implementing Executive [32 ELR 10459] Order No. 12898's requirement that federal agencies consider environmental justice issues, which the order specifically states does not establish any enforceable judicial rights,⁶² EPA must evaluate whether a permit complies with existing statutory and regulatory standards and may not deny a permit that meets such standards even if the Agency believes that the permit may disproportionately harm minority individuals or groups. EPA's Environmental Appeals Board (EAB) has recognized that some environmental statutes give the Agency discretionary authority to implement the order's goals, especially statutes containing broadly worded "omnibus clauses" that allow the Agency to modify permit conditions to "protect health and the environment."⁶³ In In re Chemical Waste Management of Indiana, Inc., the EAB relied on the Resource Conservation and Recovery Act's omnibus clause, as well as its preamble and public participation guarantees, to find that EPA has a duty under the order to conduct an environmental justice analysis and prevent significant health risks to low-income and minority communities.⁶⁴ However, even under statutes that give the Agency omnibus authority to protect human health and environment, if a permit complies with all existing explicit requirements, there may be limits to the authority of EPA or states to impose additional permit conditions or deny a permit because of disproportionate impacts to minorities.⁶⁵ Consistent with its generally deferential review of permits approved by EPA, the EAB has never found an environmental justice violation under Executive Order No. 12898.⁶⁶

Title VI is different from Executive Order No. 12898 in many ways. Title VI is a duly enacted statute that is legally binding throughout the United States "to any program or activity receiving Federal financial assistance."⁶⁷ By contrast, Executive Order No. 12898 explicitly states that it does not establish judicially enforceable rights.⁶⁸ Title VI does not apply to federal agencies, but only to recipients of federal aid.⁶⁹ On the other hand, Executive Order No. 12898 applies directly only to federal agencies,⁷⁰ although it does indirectly affect state agencies that EPA has delegated authority to issue federal permits if such permits are reviewed pursuant to the order by EPA's EAB.⁷¹ Unlike Executive Order No. 12898, Title VI and its regulations establish judicially and administratively enforceable standards.

In Sandoval, the Supreme Court recognized that Title VI and its regulations clearly prohibit intentional discrimination by a recipient against groups protected by the statute and authorize a plaintiff to file a private right of action in [32 ELR 10460] federal court to stop such discrimination.⁷² Thus, Title VI's prohibition against intentional discrimination provides independent substantive authority to review an otherwise legal permit. While Sandoval only addressed whether there is a private cause of action to enforce disparate impact regulations and assumed that federal agencies may issue disparate impact regulations,⁷³ Justice Scalia in dicta questioned whether disparate impact regulations under Title VI are consistent with the Supreme Court's determination that § 601 of the statute only prohibits intentional discrimination.⁷⁴ Nevertheless, until the Supreme Court addresses the issue, existing legal authority supports the view that EPA's disparate impact regulations allow the Agency to prohibit recipients from engaging in actions that cause significant adverse disparate impacts to protected groups.⁷⁵

Most state environmental officials have strongly argued for a "safe harbor" system in which EPA would automatically reject a Title VI complaint if a state or local recipient met certain criteria, including conformity to all existing statutes and regulations.⁷⁶ However, EPA's draft guidances warn recipients that complying with existing environmental laws does not guarantee that they are in compliance with Title VI.⁷⁷ In many cases, a policy or practice that is neutral on its face may have disproportionate discriminatory effects on a minority group. An environmental law may fail to prevent the excessive concentration of certain sources or address disproportionate impacts on particular subpopulations. For instance, an air pollution regulation may fail to control adverse impacts on asthmatics, who may be disproportionately composed of minorities.⁷⁸ Thus, in some instances, a recipient may have to exceed existing environmental standards to protect a minority subpopulation and thereby comply with Title VI. State officials are unhappy with EPA's uncertain standards and the possibility that they may have to exceed existing standards on a case-by-case basis.⁷⁹

Nevertheless, the draft guidances suggest that a recipient is less likely to be found in violation of Title VI if it complies with the Agency's health standards for a particular pollutant. While not directly mentioning the Select Steel case, the draft guidances specifically addressed whether compliance with the NAAQS established under the CAA would protect a recipient against a Title VI complaint. The Agency observed that:

By establishing an ambient, public health threshold, the primary NAAQS contemplate multiple source contributions and establish a protective limit on cumulative pollution levels that should ordinarily prevent an adverse air quality impact on public health. Air quality that adheres to such standards (e.g., air quality in an attainment area) is presumptively protective of public health in the general population.⁸⁰

However, EPA warned that there could be situations where a proposed facility that complied with the NAAQS could still harm the health of a particular minority population, and, as a result, violate Title VI.⁸¹ For example, an area may be in attainment with the lead NAAQS, but in some cases residents could still suffer adverse effects from lead if there are unusually high levels of lead in paint, soil, or water in that particular area beyond what the Agency assumed in setting the lead standard.⁸² Furthermore, "even if an area is in compliance with the NAAQS for a criteria pollutant, there still may be Title VI concerns related to other criteria pollutants, to toxic hot-spots associated with hazardous air pollutants under § 112 of the CAA, or to pollutants from other media."⁸³

States would prefer that EPA adopt a firm rule that compliance with the NAAQS and other environmental standards is enough to protect a recipient from Title VI liability.⁸⁴ However, EPA's draft guidances and its Select Steel decision clearly indicate that compliance with existing standards only creates a rebuttable presumption that a recipient has complied with Title VI and that plaintiffs or complainants may present additional evidence demonstrating disparate adverse impacts to particular minority populations. Thus, the SCCIA I decision suggests how EPA might address Title VI cases in the future where a permit meets existing standards but where there is evidence, nonetheless, of serious harms to a protected minority group.

[32 ELR 10461]

The SLC Facility: Factual Background

The applicant, SLC, proposed to operate a $ 50 million facility to grind and process granulated blast furnace slag (GBFS), an additive to portland cement, in a heavily industrialized urban area, Waterfront South, in Camden, New Jersey.⁸⁵ The SLC's proposed facility would emit significant amounts of air pollutants including particulate matter (PM) and two major precursors to ozone formation, nitrogen oxides (NO_x), and volatile organic compounds.⁸⁶ The SLC facility would generate fugitive dust emissions from the handling and movement of GBFS when it is offloaded from trucks, piled or stored, placed in the hopper, or blown from the conveyor belt.⁸⁷ Additionally, the plant would produce various air pollutants during the heating and grinding processes.⁸⁸ Furthermore, the facility would generate approximately 77,000 inbound and outbound truck deliveries each year.⁸⁹ The heavy volume of truck traffic would release significant amounts of NO_x and other pollutants contributing to ozone formation.⁹⁰

The immediate neighborhood surrounding the proposed plant is known as "Waterfront South." The area has an overwhelming minority population of 91%: 63% of the residents are African American, 28% are Hispanic, and 9% are non-Hispanic white.⁹¹ The population of Waterfront South is 2,132, 41% of whom are children.⁹² The majority of Waterfront South's population have low incomes. In 1990, the median household income of residents of Waterfront South was $ 15,082, and the per capita income was $ 4,709.⁹³ Over one-half of the residents of Waterfront South live at or below the federal poverty level.⁹⁴

It is not surprising that Waterfront South's predominantly poor and heavily minority population suffers from a disproportionate number of health problems compared to the average New Jersey citizen. The self-reported asthma rate for Waterfront South residents is 33%, which is more than twice the self-reported rate of asthma in other parts of the city of Camden.⁹⁵ Additionally, residents of Waterfront South suffer from a disproportionately high rate of other respiratory ailments and higher rates of cancer.⁹⁶

In late 1999, after the NJDEP determined that the permit application was "administratively complete," the SLC chose to begin construction of the facility even though it knew that the NJDEP would not make its final permit decision for several months.⁹⁷ The SLC established a community advisory panel (CAP) to solicit community views on the proposed facility and also hired technical experts to provide independent evaluations of the project.⁹⁸ In January 2000, the neighborhood group that eventually became the plaintiffs, the South Camden Citizens in Action, decided not to participate in the SLC's CAP meetings.⁹⁹ On August 23, 2000, after issuing draft air permits for the facility, the NJDEP held a public meeting concerning the proposed SLC facility and the NJDEP's permitting process. At the public meeting, several commentators supported the proposal and praised the SLC's community participation process, but many others opposed the facility because of its potential health impacts in the already heavily polluted Waterfront South community.¹⁰⁰ On October 31, 2000, the NJDEP Hearing Officer, Dr. Atay, issued a report responding to the comments at the hearing.¹⁰¹ The report emphasized that the proposed facility would meet applicable environmental requirements.¹⁰²

On October 31, 2000, at the same time Dr. Atay issued her report, the NJDEP simultaneously granted final approval of the SLC's air permits.¹⁰³ The NJDEP determined that the SLC plant would comply with all applicable federal and state laws and regulations and issued appropriate permits for the facility.¹⁰⁴ In doing so, the NJDEP considered only whether the facility's emissions would meet existing emissions standards for specific pollutants, especially the NAAQS for PM.¹⁰⁵ The NJDEP did not consider the 77,000 vehicle trips to and from the proposed facility because tailpipe emissions of vehicles are regulated under Title II of the CAA and are exempt under both federal and state law from inclusion as secondary emissions from stationary facilities.¹⁰⁶

The SCCIA I Decision

Compliance With Existing Environmental Laws Does Not Automatically Demonstrate Compliance With Title VI

Judge Orlofsky concluded that a permit applicant's compliance with existing environmental laws does not automatically demonstrate that a recipient's permitting program is in compliance with Title VI.¹⁰⁷ In light of the Agency's Select Steel and the draft Title VI guidance, the SCCIA I court determined that EPA interpreted Title VI to impose an independent duty on recipient agencies 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.¹⁰⁸ The court recognized that the two draft guidances are not final and, therefore, that neither was binding on the court, but it weighed them as tools helpful in understanding EPA's developing interpretation of a recipient's duties under Title VI.¹⁰⁹ The Investigation Guidance clearly states that compliance [32 ELR 10462] with environmental laws does not constitute per se compliance with Title VI:

Frequently, discrimination results from policies and practices that are neutral on their face, but have the effect of discriminating . . . . There may be instances in which environmental laws do not regulate certain concentrations of sources, or take into account impacts on some subpopulations which may be disproportionately present in an affected population. For example, there may be evidence of adverse impacts on some subpopulations (e.g., asthmatics) and that subpopulation may be disproportionately composed of persons of a particular race, color, or national origin. Title VI is concerned with how the effects of the programs and activities of a recipient are distributed based on race, color, or national origin. A recipient's Title VI obligation exists in addition to the Federal or state environmental laws governing its environmental permitting program.¹¹⁰

Similarly, in its Select Steel decision, EPA emphasized that Title VI imposes additional duties beyond compliance with existing laws such as the NAAQS:

Title VI and EPA's implementing regulations set out a requirement independent of the environmental statutes that all recipients of EPA financial assistance ensure that they implement their environmental programs in a manner that does not have a discriminatory effect based on race, color, or national origin. If recipients of EPA funding are found to have implemented their EPA-delegated or authorized federal environmental programs (e.g., permitting programs), in a manner which distributes the otherwise acceptable residual pollution or other effects in ways that result in a harmful concentration of those effects in racial or ethnic communities, then a finding of adverse disparate impact on those communities within the meaning of Title VI may, depending on the circumstances, be appropriate..¹¹¹

Additionally, the Investigation Guidance states that a recipient should evaluate the cumulative effects of multiple pollutant sources even if the source will comply with the NAAQS.¹¹²

In Select Steel, EPA found that the Michigan Department of Environmental Quality (MDEQ) was in compliance with Title VI, but the Agency observed that the fact that the Select Steel permit complied with the NAAQS was "presumptively protective," but did not automatically guarantee satisfaction of the recipient's duties under the statute.¹¹³ Judge Orlofsky argued that the facts of Select Steel, which led EPA to conclude that the MDEQ had satisfied its Title VI obligations, were completely distinguishable from the NJDEP's conduct in the South Camden case. First, the area of concern in Select Steel was in compliance for all relevant NAAQS requirements. Conversely, Judge Orlofsky pointed out that it is undisputed that Camden County is in "severe nonattainment" status under the established ozone NAAQS, and suggested, therefore, that the proposed SLC permit was entitled to less deference than the Select Steel permit had received from EPA.¹¹⁴ Second, in Select Steel, the MDEQ did not assume that compliance with the NAAQS fulfilled its Title VI duties, but Michigan officials considered community-specific health data about the actual lead levels in children living near the proposed plant before determining that the facility would not adversely affect the residents' health.¹¹⁵ In Select Steel, EPA's independent Title VI investigation examined community-specific data and concluded that "no affected population" could suffer "'adverse' impacts within the meaning of Title VI" from the proposed Select Steel facility's emissions.¹¹⁶ By contrast, the NJDEP refused to consider evidence submitted by the plaintiffs regarding the adverse cumulative health impacts from the proposed operation of the cement facility in a minority community already overburdened by multiple pollution sources.¹¹⁷

Judge Orlofsky also found that the NJDEP had failed to follow its own administrative orders implementing its environmental justice and Title VI policies. The court concluded: "The NJDEP's insistence that its obligation to Plaintiffs under Title VI does not go beyond ensuring compliance with the NAAQS is completely undermined by the NJDEP's own recognition, in numerous fora, that it has precisely such an obligation under Title VI."¹¹⁸ On October 22, 1998, NJDEP Commissioner Robert C. Shinn issued Administrative Order No. 1998-15 establishing the NJDEP's "Advisory Council on Environmental Equity" and defined "environmental equity" as "the fair and equitable treatment in environmental decision-making of the citizens of all New Jersey communities regardless of race, color, income, or national origin. Fair and equitable treatment means that no population should bear disproportionate amounts of adverse health and environmental effects."¹¹⁹ Furthermore, in 2000, Commissioner Shinn issued Administrative Order No. 2000-01, which discussed various responsibilities of the Advisory Council and identified several "environmental equity implementation strategies" to be implemented by the NJDEP.¹²⁰ However, the NJDEP has not yet incorporated [32 ELR 10463] these strategies into the permitting process.¹²¹ Judge Orlofsky found that the NJDEP had failed to follow its own administrative orders regarding environmental equity, although he did not address whether the agency had a legally binding duty to do so or whether a federal district court has jurisdiction to address such an issue.¹²² Instead of addressing whether the NJDEP had legally binding duties under these administrative orders, Judge Orlofsky instead concluded:

It is entirely clear from the Court's review of Commissioner Shinn's Administrative Orders that the NJDEP is aware that its obligations under Title VI extend beyond ensuring that permitted facilities do not violate environmental laws, and in fact include considering claims, such as Plaintiffs' in the present case, that a particular permit will result in an adverse, disparate impact in violation of Title VI.¹²³

In the draft guidances, EPA concluded that a recipient's violation of state laws that affect facility siting can establish a Title VI violation, but did not provide clear examples of when such a violation might occur.¹²⁴ More specifically, the guidance strongly encouraged states to adopt environmental equity programs as a way to minimize the chances of a complaint and mitigate any possible penalties,¹²⁵ but did not clarify under which circumstances the failure of an agency to follow such policies may violate Title VI. The failure of NJDEP to follow its own administrative orders regarding environmental equity is arguably a procedural flaw that could violate the EPA's Title VI regulations if the NJDEP's omissions resulted in an increased risk that minorities such as the residents of South Camden would be exposed to significant and adverse disparate impacts.¹²⁶ However, Judge Orlofsky's analysis did not adequately address the difficult and novel question of under what circumstances state environmental justice policies or rules create binding Title VI obligations for state agencies, especially if the agency is still in the process of developing those policies.

After reviewing the draft guidances, the Select Steel decision, and NJDEP's own administrative orders, Judge Orlofsky in SCCIA I concluded that the NJDEP had violated EPA's Title VI regulations by contending that compliancewith existing requirements such as the NAAQS automatically satisfies a recipient's Title VI duties.¹²⁷ The court found that the NJDEP had violated its Title VI obligation to consider the potential adverse disparate impacts of its permitting decisions by refusing to consider community-specific evidence of the environmental and health impacts of the proposed SLC facility to the Waterfront South neighborhood that went beyond the scope of the NAAQS.¹²⁸ Accordingly, the SCCIA I court granted a declaratory judgment concluding that the NJDEP and Commissioner Shinn had violated their Title VI duties by failing to consider the potential adverse disparate impacts of the SLC's proposed cement plant.

A Prima Facie Case of Disparate Impact

In a Title VI disparate impact case, a plaintiff alleges that a neutral procedure or practice used by a recipient causes significant and unjustified disparate effects on individuals of a particular race, color, or national origin.¹²⁹ To establish a prima facie case of disparate impact discrimination, a Title VI plaintiff must demonstrate by a preponderance of the evidence that a recipient agency has engaged in a specific practice that causes an unjustified disproportionate impact on persons protected by the statute.¹³⁰ A plaintiff must first present evidence that a specific group of minorities are disproportionately included or excluded compared to a relevant comparison group and then persuade a court to infer that the recipient's practices caused those disproportionate impacts.¹³¹ If a plaintiff establishes a prima facie case of discrimination, the court must determine whether the recipient can articulate a "substantial legitimate justification" for the practice.¹³²

Judge Orlofsky applied a three-part approach in analyzing whether the plaintiffs had established a prima facie case of discrimination under Title VI¹³³: first, whether the proposed [32 ELR 10464] facility would cause adverse impacts to the health of the residents of the Waterfront South community; second, whether the NJDEP's permitting decision would result in disparate impacts; and, third, whether the permitting decision was the cause of the adverse impacts and disparate impacts.¹³⁴ The district court determined that the plaintiffs had established all three elements of a prima facie case of disparate impact discrimination under Title VI.¹³⁵

Adverse Impact

Initially, the district court concluded that the plaintiffs had established that operation of the proposed facility would cause adverse impacts to the health of the residents of the Waterfront South community in two specific ways.¹³⁶ First, the court found that the level of PM likely to be emitted from the proposed SLC facility would adversely affect respiratory function in the members of the surrounding Waterfront South community, especially because a disproportionate percentage already suffered from asthma and other respiratory illnesses that would be aggravated by the inhalation of PM.¹³⁷ In particular, the court observed that African American members of the community currently suffered from especially disproportionately high rates of cardiovascular disease and respiratory diseases such as asthma.¹³⁸ Second, the court determined that truck deliveries to and from the SLC facility would generate ozone precursors that would likely harm the community's health by damaging the respiratory functioning of many residents and increasing the incidence of cancer.¹³⁹

The NJDEP refused to address the plaintiffs' concerns regarding the SLC facility's PM emissions on grounds that the facility would comply with the existing PM NAAQS.¹⁴⁰ Additionally, the NJDEP did not address truck diesel emissions in the air quality analysis for the facility because federal and state law exempt tailpipe emissions of vehicles regulated under Title II of the CAA from inclusion as secondary emissions from the facility.¹⁴¹ Instead, the state of New Jersey regulates emissions from mobile sources through the regular state inspections and monitoring of individual vehicles.¹⁴²

The court agreed with the plaintiffs that mere compliance by the proposed SLC facility with the existing PM NAAQS would not prevent serious adverse health consequences to the residents of Waterfront South resulting from the particulate emissions. EPA's current PM NAAQS only regulates PM that is 10 microns in diameter (PM[10]). While the proposed SLC facility would comply with the existing PM[10] standard, the court found that the plant's emissions of PM, especially particles that are 2.5 microns in diameter or smaller (PM[2.5]), would adversely affect the health of residents of Waterfront South.¹⁴³

According to the court, the NJDEP's argument that mobile sources of pollution are regulated under a different program than stationary sources was invalid in light of the Investigation Guidance's strong recommendation that a funding recipient should consider the impact of a proposed permit on all environmental programs within the scope of the recipient's legal authority.¹⁴⁴ The court concluded that the adverse impact of the diesel truck emissions resulting from 77,000 additional truck trips to the proposed facility per year should be considered in determining whether the presence of the proposed SLC facility would likely worsen ozone pollution in an area already in "severe" nonattainment with the existing ozone NAAQS.¹⁴⁵ In light of the high incidence of respiratory disease and existing environmental burdens in the Waterfront South community, the court determined that the plaintiffs had demonstrated that particulate emissions from the proposed SLC facility as well as emissions from truck trips to the facility would likely adversely affect the residents' health to a degree that meets the standard of "adversity" under Title VI.¹⁴⁶

Disparate Impact

Second, the district court found that the plaintiffs had established that the proposed permit would cause significant disparate impacts to minority residents of Waterfront South in violation of Title VI. In a Title VI case alleging that a recipient's facially neutral practices cause significant disparate impacts to a protected minority group, a plaintiff may demonstrate that any adverse disparities are significant enough to violate the statute by using "appropriate statistical measures" that compare the amount of pollution in an affected minority community with similarly situated non-minority comparison areas.¹⁴⁷ The SCCIA I court found that the plaintiffs presented convincing statistical evidence that New Jersey facilities producing air pollution are disproportionately located in communities of color.

The plaintiffs' expert witness in statistics, Dr. Gelobter, analyzed the correlation between race and the distribution of facilities that emit air pollution in New Jersey. First, he gathered data on the number of air pollution emitting facilities from the Aerometric Information Retrieval System, Air Facilities Subsystem (AIRS/AFS) database, which is 1 of 13 [32 ELR 10465] publically available databases in EPA's "Envirofacts" database.¹⁴⁸ Second, Dr. Gelobter gathered data on the racial composition of New Jersey ZIP Code areas using the 1990 U.S. Census Bureau results. Comparing these data, Dr. Gelobter found that ZIP Code area 08104, which includes the Waterfront South area, has 21 AIRS/AFS facilities, compared to a statewide average of 7.8 AIRS/AFS facilities per ZIP code area. Dr. Gelobter further found that ZIP code regions with higher than the statewide average of 20.6% non-white residents had an average of 13.7 AIRS/AFS facilities per ZIP code area, or 105% more AIRS/AFS facilities, than those with a below-average number of non-white residents, which had an average of 6.7 AIRS/AFS facilities per ZIP Code area. ZIP Code region 08104, which corresponds with Waterfront South, has 230% of the statewide average of AIRS/AFS facilities.

Next, Dr. Gelobter performed a regression analysis of the relationship between EPA-regulated facilities and the percentage of non-whites in a ZIP Code area.¹⁴⁹ Dr. Gelobter found that for every 10% increase in the percentage of non-white residents in a given ZIP Code area, the ZIP Code would experience a 16% increase over the average number of EPA-regulated facilities. According to Dr. Gelobter's Certification (his expert report on the Camden case), based on his statistical analysis, "the odds that there is no relationship between the percentage of non-white residents and the number of facilities in a ZIP Code area are less than 3 in 10 million."

The NJDEP declined to respond to the plaintiffs' claim of disparity or Dr. Gelobter's statistical evidence because it maintained that it has no duty to consider such evidence if a proposed permit complies with existing environmental standards.¹⁵⁰ The SLC's expert, Dr. Don Coursey, argued that Dr. Gelobter's findings were analytically flawed because they: (1) failed to analyze the historical development of demographic patterns in Camden from the early 1900s to the present; (2) did not consider additional factors that have been associated with siting decisions, including population density, presence of interstate highways, and access to water transportation; and (3) employed a purely statistical, one-dimensional analysis that failed to establish a causal link between race and the siting of environmentally hazardous facilities in New Jersey.¹⁵¹ Yet, according to the court:

SLC did not contest Plaintiffs' contention that industrial facilities are unequally distributed in New Jersey, and appears willing to concede that a disproportionate number of industrial facilities may be located in Camden. The SLC, however, contended that Plaintiffs had failed to meet their burden of proof with respect to the third and final element of the test for disparate impact under Title VI: causation.¹⁵²

After weighing the conflicting views of Dr. Gelobter and Dr. Coursey, the district court concluded that the plaintiffs had established a prima facie case of disparate impact based upon Dr. Gelobter's analysis demonstrating a statistically significant association between the placement of air polluting facilities in New Jersey and the percentage of minority residents in those communities.¹⁵³ The court found that Dr. Gelobter used appropriate data and statistical measures to calculate disparity, consistent with the methodology and data sources recommended by EPA and the criteria set forth by the U.S. Court of Appeals for the Second Circuit.¹⁵⁴

Causation

In Title VI cases alleging disparate impacts, the final element of a plaintiff's prima facie case is the demonstration that the alleged adverse disparate impact is causally linked to the defendant's facially neutral policy.¹⁵⁵ In Title VII employment discrimination cases, courts usually indirectly infer whether there is sufficient causation based on statistical evidence introduced by a plaintiff that a particular employment practice causes a "substantially" or "significantly" greater percentage of minorities to experience adverse results than an appropriate similarly situated comparison group.¹⁵⁶ In Title VI cases challenging the siting of a facility, courts similarly determine whether there is a sufficient basis to infer causation relying on a plaintiff's statistical comparisons between a chosen minority host site and the racial demographics of alternative neighborhoods that would have been suitable for the challenged facility.¹⁵⁷

The plaintiffs relied mainly on Dr. Gelobter's regression analysis to demonstrate a causal link between the disparate distribution of industrial, pollutant-producing facilities in New Jersey and the NJDEP's facially neutral permitting policy, which is based exclusively on compliance with the NAAQS and other applicable legal requirements.¹⁵⁸ As discussed above, Dr. Gelobter performed a regression analysis of the relationship between facilities regulated by the [32 ELR 10466] NJDEP under EPA's jurisdiction and the percentage of non-whites in New Jersey ZIP Code areas. The regression analysis demonstrated that the odds that there is no relationship between the percentage of non-white residents and number of facilities in a ZIP Code area are approximately 3 in 10 million.

The NJDEP declined to brief the issue of causation for the same reason it did not brief the issue of disparity because of its contention that it need not consider disparate impacts if a facility meets all applicable environmental standards.¹⁵⁹ The permit applicant, SLC, did challenge the plaintiffs' causation claim. The SLC contended that the plaintiffs' causation argument was flawed because it made an "unsubstantiated leap" to the conclusion that the NJDEP's permitting process is causally linked to the admitted disparity in the distribution of industrial facilities in the state of New Jersey.¹⁶⁰ According to the SLC, the court should have rejected Dr. Gelobter's data on causation because he failed to consider all of the factors that could account for the siting of industrial facilities in particular areas, such as access to transportation, existing infrastructure, and available labor force.¹⁶¹ Thus, the SLC asserted that

even assuming the statistical evidence that Plaintiffs have produced is accurate, those statistics are not the result of some defect in NJDEP's permitting process, but are rather the result of hundreds, if not thousands, of individual siting decisions made by private entities searching on the basis of sound business principles for the most appropriate locations for their industrial facilities.¹⁶²

The district court rejected the SLC's argument because it concluded that there was a causal link between the NJDEP's permitting practices and the unequal distribution of polluting facilities in the state.¹⁶³ The court argued that the draft guidances had interpreted EPA's Title VI regulations to require recipients to consider the causal connection between the recipients' permitting practices and the distribution of polluting facilities and to ensure that the recipient's permitting decisions did not cause disparate impacts.¹⁶⁴ The court stated:

In other words, the EPA has acknowledged that because recipients are responsible for permitting, they are also responsible for considering the distribution of the facilities which they permit with respect to the classes protected by the Civil Rights Act of 1964. The regulations therefore support the conclusion that a recipient's permitting decisions are causally linked to the distribution of facilities as a matter of law.¹⁶⁵

Finally, Judge Orlofsky stated:

After reviewing the expert testimony submitted by both Plaintiffs and SLC on the issue of causation, and the facts of this case, I have concluded that the Plaintiffs have carried their prima facie burden of demonstrating that the NJDEP's permitting practices are causally linked to the adverse, disparate impact[s] about which Plaintiffs complain.¹⁶⁶

Judge Orlofsky correctly observed that Title VI recipients such as the NJDEP are responsible for the distributional impacts of their permitting decisions. A recipient must consider how each permit decision will impact the surrounding community in light of existing permits and cumulative pollution burdens. The SLC's argument that the permit decision was justified in light of transportation, labor force, and infrastructure constraints did not refute the plaintiffs' assertion that the permit would cause adverse disparate impacts and was more appropriate to a defendants' rebuttal burden.

Defendants' Rebuttal Burden

If a Title VI plaintiff establishes a prima facie case of disparate impact discrimination, the defendant bears the burden of rebutting the resulting inference of discrimination by showing that it had a "substantial legitimate justification" or a "legitimate nondiscriminatory reason" for its practice.¹⁶⁷ In the 1991 Civil Rights Act, Congress explicitly amended Title VII to place both the burdens of production and persuasion on the defendant once a plaintiff sets forth a prima facie case.¹⁶⁸ The 1991 Act does not address Title VI; however, Title VI decisions usually apply a similar approach as the 1991 Civil Rights Act by placing the burden of proof on Title VI defendants to either rebut the plaintiff's prima facie case or to justify their actions.¹⁶⁹

[32 ELR 10467]

The NJDEP declined to specifically address the issue of justification because of its contention that there is no need for it to do so if a permit meets all applicable environmental standards.¹⁷⁰ The SLC, however, offered several justifications for the NJDEP's decision, including: (1) the proposed facility's compliance with the NAAQS and all applicable environmental regulations; (2) the SLC and the NJDEP's public participation efforts in "consulting with the community"; and (3) the economic justification that the city of Camden "needs the economic and social benefits that come with a renewed industrial presence attuned to its environmental responsibilities."¹⁷¹

Because there is no clear legal standard on the issue of what constitutes a "substantial legitimate justification" or a "legitimate nondiscriminatory reason" under Title VI, Judge Orlofsky turned to EPA's draft guidances for help in assessing this question.¹⁷² According to the Investigation Guidance, if EPA finds that a proposed facility will have an adverse, disparate impact on the complainants, "the recipient will have the opportunity to 'justify' the decision to issue the permit notwithstanding the adverse disparate impact, based on a substantial, legitimate justification."¹⁷³ The Investigation Guidance cautions that "determining what constitutes an acceptable justification will necessarily be based on the facts of the case," but states that "generally, the recipient would attempt to show that the challenged activity is reasonably necessary to meet a goal that is legitimate, important, and integral to the recipient's institutional mission."¹⁷⁴ The Investigation Guidance provides as examples two main types of justifications that EPA may consider substantial and legitimate in appropriate circumstances: (1) a demonstration that the permitting action will provide a public health or environmental benefit to the affected population; and (2) a demonstration that the permitting action will have economic benefit and the benefit is "delivered directly to the affected population."¹⁷⁵

In theory, the SLC facility might meet the second criteria for justification by providing direct economic benefits to the community. According to the Investigation Guidance, in evaluating the soundness of an economic justification, EPA will consider both the recipient's and the affected community's perspectives regarding whether the permitted facility will actually produce direct economic benefits to the community.¹⁷⁶ The SLC argued that the proposed facility would economically benefit the Camden community, but the NJDEP's strategic refusal to address this issue and the divided response from the Waterfront South community to the project weakened the SLC's case.¹⁷⁷

Judge Orlofsky concluded "that the record in the present case is insufficient for me to determine whether the NJDEP can provide a 'substantial, legitimate justification,' in the context of Title VI analysis, for its permitting decision."¹⁷⁸ The SLC's efforts to justify its proposed plant were hampered by the silence of the NJDEP on the justification issue. It is very difficult for a permit applicant to present a convincing case of direct economic benefits to the community unless the recipient concurs, or, perhaps, if there is overwhelming community support for the proposal. Because Title VI is ultimately concerned with the recipient's compliance with the statute and applicable agency regulations, a permit applicant normally needs the cooperation and support of the recipient permitting agency to meet the recipient's burden of demonstrating adequate justification for a permit decision that creates adverse disparate impacts. The district court found that the defendants had failed to carry their rebuttal burden, and, therefore, that the plaintiffs had established a likelihood of success on the merits.¹⁷⁹

While Judge Orlofsky did not address these issues in his opinion, the NJDEP and the SLC could have provided a stronger justification for the proposed facility if they had discussed mitigation of adverse disparate impacts or whether there were less discriminatory alternatives to the proposed facility.¹⁸⁰ The NJDEP did not consider how it or the SLC could attempt to mitigate the facility's impacts. In its Investigation Guidance, EPA states that a recipient may be able to justify a project with otherwise unacceptable disparate impacts by proposing sufficient mitigation measures.¹⁸¹ Additionally, the NJDEP and the SLC did not address whether there were less discriminatory alternatives to the proposed facility. The Investigation Guidance cites Title VI case law for the principle that a recipient's otherwise legitimate justification is not valid if a less discriminatory alternative exists that could achieve the benefits sought by the recipient.¹⁸² The Investigation Guidance states that "courts have defined the term 'less discriminatory alternative' to be an approach that causes less disparate impact than the challenged practice, but is practicable and comparably effective in meeting the needs addressed by the challenged practice."¹⁸³ In the future, recipients should strongly consider providing stronger justifications for any permitting decision challenged under Title VI, including discussion of mitigation and less discriminatory alternatives.

Irreparable Harm

The district court found that operating the proposed SLC facility would cause irreparable harm to the plaintiffs and Waterfront [32 ELR 10468] South community.¹⁸⁴ Contending that compliance with the PM NAAQS prevents any serious harms to the public, the NJDEP and the SLC both argued that the plaintiffs had failed to demonstrate that the proposed facility's particulate emissions would cause irreparable harm to the Waterfront South community.¹⁸⁵ In particular, the defendants contended that the court should not consider fine particulate emissions because there is no NAAQS for PM[2.5] emissions.¹⁸⁶

In rejecting the defendants' argument that there is no evidence that the proposed SLC facility's emissions will irreparably harm the Waterfront South community because the plant complies with the existing PM[10] NAAQS, the court initially noted that EPA had concluded that the current PM[10] NAAQS is inadequate.¹⁸⁷ In 1997, EPA had issued a final agency rule that revised the NAAQS for PM[10], and, for the first time, specifically set a proposed NAAQS for PM[2.5].¹⁸⁸ Specifically, EPA's proposed 1997 NAAQS for PM observed that sensitive subpopulations, especially children and individuals with asthma and other cardiopulmonary diseases, are more likely to be affected by particulate emissions than the general population.¹⁸⁹ The SCCIA I court observed that Camden is already at the EPA-recommended level for PM[2.5], even without the operation of the SLC facility.¹⁹⁰ Furthermore, 40% of the residents of Waterfront South are children. The neighborhood includes a disproportionate number of people with asthma and other cardiopulmonary diseases.¹⁹¹

In the end, Judge Orlofsky did not appear to rest his determination of irreparable harm on the SLC facility's potential PM[2.5] emissions,¹⁹² although he had found that "PM[2.5] poses unique dangers to human health."¹⁹³ The SCCIA I court was aware that the U.S. Court of Appeals for the District of Columbia Circuit in American Trucking Ass'n v. U.S. Environmental Protection Agency¹⁹⁴ had enjoined EPA from implementing both its new NAAQS for PM[10] and the new NAAQS for ozone. In its findings, the district court strongly suggested that it believed that EPA would ultimately issue a more stringent PM standard, including one regulating PM[2.5].¹⁹⁵ Nevertheless, the court cautioned that it was "not suggesting that the NJDEP could or should have used the proposed PM[2.5] NAAQS when determining whether the proposed SLC facility would be in compliance with environmental regulations."¹⁹⁶

Because it was obviously reluctant to rest a finding of irreparable harm on the SLC facility's potential PM[2.5] emissions, the court instead based its conclusion of irreparable harm to the plaintiffs and Waterfront South community on the additional ozone generated by the diesel truck traffic traveling to and from the proposed facility and the additional cumulative environmental burdens that the SLC facility would impose on an already environmentally burdened community.¹⁹⁷ The court concluded that it need not defer to the NJDEP's decision to permit the facility because the NJDEP had failed to consider the cumulative environmental burdens in the Waterfront South community.¹⁹⁸

Having found that the issuance of a permit for the SLC facility would cause irreparable harm to the plaintiffs and Waterfront South community, the court granted the plaintiffs' request for a preliminary injunction and vacated the air permits issued by the NJDEP to the SLC.¹⁹⁹ Because purely economic injury is not irreparable harm, the court rejected the SLC's argument that injunctive relief was inappropriate because it would lose $ 200,000 for each week the facility does not operate.²⁰⁰ Retaining jurisdiction over the case, Judge Orlofsky remanded the case to the NJDEP and Commissioner Shinn to make appropriate findings within 30 days consistent with the court's opinion.²⁰¹

The SCCIA II Decision: Using § 1983 Suits to Enforce Title VI's § 602 Regulations

On the afternoon of April 24, 2001, Judge Orlofsky asked counsel to address the impact of the Supreme Court's morning decision in Sandoval on SCCIA I.²⁰² All counsel agreed that Sandoval precluded a private right of action under § 602, and, therefore, that SCCIA I's reliance on that approach was no longer valid.²⁰³ Both the SLC and the NJDEP argued that the court should vacate its preliminary injunction [32 ELR 10469] issued on April 19, 2001, in light of Sandoval.²⁰⁴ However, the counsel for the plaintiffs argued that the preliminary injunction should remain in effect because, citing Justice Stevens' dissenting opinion in Sandoval, their claim of disparate impact discrimination that was originally brought under § 602 could instead be brought under § 1983.²⁰⁵

On April 25, 2001, the plaintiffs filed a motion for leave to amend their complaint to allege a cause of action of disparate impact discrimination in violation of EPA's Title VI § 602 regulations through a § 1983 suit.²⁰⁶ The SLC opposed the motion to amend, arguing that it would suffer significant economic prejudice if the motion were granted.²⁰⁷ The SLC also filed an order to show cause for the preliminary injunction pending appeal and a motion to vacate or, in the alternative, stay the preliminary injunction.²⁰⁸

On April 25, 2001, the district court granted the plaintiffs' motion for leave to amend their complaint to allege a cause of action of disparate impact discrimination based on § 1983.²⁰⁹ The court concluded that the plaintiffs' proposed amendment was merely a technical amendment advancing an alternative legal basis for the relief sought in the plaintiffs' original complaint and that the amendment would not require the presentation of any additional evidence.²¹⁰ On the other hand, the court determined that the economic prejudice relied upon by the SLC is not the type of prejudice that would defeat a motion for leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure because Rule 15(a) mandates that leave to amend "be freely given when justice so requires."²¹¹ Thus, the district court granted the motion to amend the complaint to add a § 1983 claim that essentially incorporated § 602's prohibition against disparate impact discrimination.²¹²

In response to the SLC's request for an order to show cause and motion to vacate or stay the preliminary injunction, the court declined to make an immediate ruling.²¹³ Instead, after reading the parties' briefs and allowing oral argument, on May 10, 2001, Judge Orlofsky issued a supplemental opinion—SCCIA II—addressing the impact of the Supreme Court's Sandoval decision on SCCIA I. SCCIA II retained the court's findings of fact and conclusions of law in SCCIA I except where the court relied on a private right of action under § 602, which Sandoval had clearly rejected.²¹⁴ SCCIA II determined that the Supreme Court's Sandoval decision did not bar the plaintiffs from using § 1983 to enforce the federal rights in EPA's Title VI disparate impact regulations.²¹⁵ Furthermore, the court held that the plaintiffs were still entitled to preliminary injunctive relief against the NJDEP and the SLC because the proposed permit violated EPA's disparate impact discrimination regulations under Title VI as enforced through § 1983.²¹⁶ Accordingly, the court denied the SLC's motion to vacate or at least stay SCCIA I's order for preliminary injunctive relief against the NJDEP and the SLC.²¹⁷

Sandoval Does Not Bar § 1983 Suits to Enforce Title VI's § 602 Regulations

SCCIA II rejected both the SLC and the NJDEP's argument that the Supreme Court's decision in Sandoval barred the plaintiffs from pursuing "any" cause of action involving § 602.²¹⁸ Judge Orlofsky concluded that Sandoval's "narrow holding" simply prohibited the use of a direct or freestanding private cause of action under § 602, but did not bar plaintiffs from using § 1983 to effectuate the rights within § 602.²¹⁹ In Sandoval, the plaintiffs' disparate impact discrimination claim was based exclusively on a direct private right of action under § 602 of Title VI.²²⁰ The plaintiffs in Sandoval did not raise Title VI rights through a § 1983 suit.²²¹ Furthermore, the Supreme Court in Sandoval never reached the issue of whether § 602 disparate impact regulations are enforceable rights under § 1983.²²² Nor did the Sandoval Court address the fundamental issue of whether § 602 confers the authority for federal agencies to issue disparate impact regulations.²²³ Accordingly, SCCIA II concluded that "Sandoval does not foreclose Plaintiffs from seeking to vindicate the rights they allege § 602 and its implementing regulations create through § 1983."²²⁴

In SCCIA II, Judge Orlofsky concluded that the plaintiffs could pursue a claim under § 1983 to enforce EPA's § 602 implementing regulations. During 1999, in Powell v. Ridge,²²⁵ the Third Circuit had held that plaintiffs seeking to enforce the disparate impact regulations promulgated under § 602 may do so by bringing suit either through a private right of action under § 602 or by bringing suit under 42 U.S.C. § 1983.²²⁶ While Sandoval overruled the Third Circuit's holding that § 602 itself contains an implied private right of [32 ELR 10470] action, Sandoval did not address, and thus did not affect, Powell's holding that plaintiffs may assert a claim for violation of § 602 regulations under § 1983.²²⁷ Judge Orlofsky concluded that, "the Third Circuit's analysis of § 1983 in Powell is not affected or overruled by the Supreme Court's ruling in Sandoval and remains the governing law of this Circuit. Accordingly, this Court is bound to follow it."²²⁸

Standard for § 1983 Suits

Section 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .²²⁹

In assessing whether a plaintiff may bring suit under § 1983, a court first examines whether the complaint asserts the "violation of a federal right, not merely a violation of federal law."²³⁰ To determine whether a federal statute creates an individual enforceable federal right, the Supreme Court in Blessing v. Freestone²³¹ used a three-part test:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right purportedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.²³²

If a federal statutory right meets the three-part test, there is a strong presumption that a plaintiff may use § 1983 to enforce that right.²³³

Even when the plaintiff has asserted a federal right, the Supreme Court in Middlesex County Sewerage Authority v. National Sea Clammers Ass'n²³⁴ held that a defendant may show that Congress "specifically foreclosed a remedy under § 1983," either expressly or impliedly, by providing a "comprehensive enforcement mechanism for protection of a federal right."²³⁵ However, there is a heavy burden on the defendant to prove that a statute's enforcement scheme is so comprehensive that a court must presume that Congress could not have intended to allow a separate remedy through a § 1983 suit. In Livadas v. Bradshaw,²³⁶ the Court explained that "apart from [some] exceptional cases, § 1983 remains a generally and presumptively available remedy for claimed violations of federal law."²³⁷

It is possible to enforce a federal statutory right through § 1983 even if that right cannot be enforced as a direct private right of action.²³⁸ There is a separate and different test for determining whether a federal right may be enforced under § 1983, the three-part Blessing test, apart from whether there is a private right of action, which is governed by the four-part test established in Cort v. Ash.²³⁹ As interpreted by recent Supreme Court decisions, the most important part of the Cort test for determining whether a plaintiff may directly enforce a statute through a private suit is whether Congress intended, either expressly or by implication, to create a private right of action.²⁴⁰ By contrast, the three-part Blessing test used by the Supreme Court in § 1983 cases focuses on whether there is a mandatory federal right in favor of the plaintiff.²⁴¹ Whether the underlying substantive statute establishing a federal right in favor of the plaintiff provides a remedy is not determinative because § 1983 itself provides the remedy.²⁴² Because § 1983 provides an "alternative source of express congressional authorization of private suits," the separation-of-powers concerns that require congressional intent to authorize a private cause of action are not present in a § 1983 case.²⁴³ Thus, the Supreme Court has "recognized an exception to the general rule that § 1983 provides a remedy for violation of federal statutory rights only when Congress has affirmatively withdrawn the remedy."²⁴⁴ Accordingly, courts have allowed suits under § 1983 to vindicate federal statutory rights even when the [32 ELR 10471] underlying statute creating the right is not enforceable as a private right of action.²⁴⁵

SCCIA II Holds EPA's § 602 Regulations Enforceable Under § 1983

In SCCIA II, the district court held that EPA's § 602 regulations are enforceable under § 1983.²⁴⁶ First, the court observed that a number of courts have held that federal agency regulations may create enforceable rights under § 1983 as long as they are consistent with the underlying statute authorizing them and establish regulatory rights that meet the three-part Blessing test for whether a federal right may be enforced under § 1983.²⁴⁷ The court then examined the complex question of whether disparate impact regulations issued pursuant to § 602 of Title VI may be enforced through § 1983.²⁴⁸

Since 1964, all federal agencies have consistently interpreted § 602 to prohibit recipients from engaging in not only intentional discrimination, but also in practices having discriminatory effects.²⁴⁹ Despite its "fractured" Title VI jurisprudence,²⁵⁰ all of the Supreme Court's decisions, including Sandoval, have assumed that these implementing regulations are valid.²⁵¹ During 1983, the Supreme Court in Guardians Ass'n v. Civil Service Commission²⁵² addressed a Title VI discrimination suit by minority police officers against New York City based on both the statute and the U.S. Department of Labor's § 602 disparate impact regulations. No opinion of the Court commanded a majority. Nonetheless, five Justices held that disparate impact regulations adopted by federal agencies under § 602 were valid interpretations of Title VI.²⁵³ In Alexander v. Choate,²⁵⁴ the Supreme Court stated in dicta: "The [Guardians] Court held that actions having an unjustifiable, disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI."²⁵⁵ Additionally, the Alexander Court stated that Congress had "delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted significant social problems, and were readily enough remedial, to warrant altering the practices of the federal grantees that had produced these impacts."²⁵⁶

In light of numerous Supreme Court and lower court decisions upholding the validity of § 602 disparate impact regulations, SCCIA II concluded that these implementing regulations establish clear federal rights that may be enforced through a § 1983 suit.²⁵⁷ Under the three-part Blessing test for enforcing federal rights through § 1983, the first issue is whether EPA's implementing regulations were intended to benefit a class that includes the plaintiffs. The SCCIA II court easily concluded that there is no question that EPA's § 602 regulations are intended to protect persons of color such as the plaintiffs.²⁵⁸ Additionally, the court found that specific language in EPA's implementing regulations, especially the mandate that "no person" suffer discrimination from a program or activity receiving Agency assistance,²⁵⁹ demonstrated an intent to benefit individuals such as the plaintiffs."²⁶⁰ The SCCIA II court concluded that EPA's [32 ELR 10472] § 602 implementing regulations establish individual rights that may be enforced by persons such as the plaintiffs.²⁶¹

The second prong of the Blessing test requires an analysis of whether the right the plaintiffs are asserting is "so vague and amorphous" that it is incapable of practicable judicial enforcement.²⁶² The SCCIA II court found that EPA's § 602 implementing regulations clearly and specifically prohibit disparate impact discrimination.²⁶³ Numerous court decisions have interpreted and applied Title VI disparate impact discrimination regulations.²⁶⁴ Additionally, the ability of courts to enforce Title VI disparate impact regulations is demonstrated by the existence of a well-established three-part burden shifting regime in which a plaintiff must establish a prima facie case of disparate impact discrimination, a defendant may offer a substantial and legitimate justification in rebuttal, and, finally, if a defendant has offered a proper rebuttal, a plaintiff may establish that the defendant ignored an equally effective alternative with less discriminatory impact.²⁶⁵ Accordingly, the court concluded that enforcing EPA's § 602 regulations was not beyond judicial competence under Blessing's second prong.²⁶⁶

The third and final factor in the Blessing analysis is whether the statute or regulation at issue "unambiguously imposes a binding obligation on states,"²⁶⁷ or, in other words, whether a federal statute establishes mandatory rights for the benefit of an identifiable class of plaintiffs. In SCCIA II, the court concluded that EPA's § 602 implementing regulations use mandatory language directing recipients not to discriminate and, therefore, are enforceable under § 1983.²⁶⁸ Accordingly, having satisfied all three prongs of the Blessing test, the court found that there was a rebuttable presumption that EPA's § 602 implementing regulations create a right enforceable under § 1983.²⁶⁹

Next, SCCIA II considered whether Congress had expressly or impliedly foreclosed the plaintiffs' ability to enforce EPA's § 602 implementing regulations under § 1983.²⁷⁰ It is undisputed that neither Title VI nor its regulations expressly restrict the availability of relief under § 1983.²⁷¹ Accordingly, the burden was on the defendants to establish that allowing a remedy under § 1983 would be inconsistent with Title VI's enforcement regime or, more specifically, the administrative remedies in EPA's § 602 implementing regulations. There is a heavy burden on the defendant to prove that a statute's enforcement scheme is so comprehensive that a court must presume that Congress could not have intended to allow a separate remedy through a § 1983 suit. In only two cases has the Supreme Court found that a statutory enforcement mechanism is sufficiently comprehensive to preclude a remedy under § 1983.²⁷²

In SCCIA II, the defendants argued that plaintiffs were foreclosed from seeking a remedy under § 1983 because EPA's § 602 regulations already provided extensive remedies.²⁷³ In National Sea Clammers, the Supreme Court held that a federal statute containing enforceable rights may either expressly or impliedly preclude a remedy under § 1983 if the substantive statute's remedial scheme is so comprehensive that a § 1983 action would interfere with that remedial scheme.²⁷⁴ According to the defendants, EPA's "comprehensive" § 602 regulations preclude § 1983 suits because the Agency regulations require recipients to provide grievance proceedings to enable citizens to raise discrimination complaints with the recipient, although the NJDEP had never established such procedures.²⁷⁵ Second, EPA's regulations define "Agency Compliance Procedures" that the Agency uses to encourage compliance by its recipients.²⁷⁶ Finally, the EPA Administrator is authorized, under § 602, to withdraw federal funding from a recipient in the event of noncompliance.²⁷⁷

In Blessing, the Supreme Court emphasized that the mere existence of administrative remedies is not enough to defeat the availability of relief under § 1983. In SCCIA II, the court concluded that the limited remedies in EPA's § 602 regulations for termination of funding were not equivalent to the extensive citizen suit provisions under the Clean Water Act that the Supreme Court had found sufficient in National Sea Clammers to bar § 1983 suits.²⁷⁸ In particular, EPA's § 602 regulations do not provide any individual remedies for those harmed by the adverse disparate impact of a facially neutral environmental permitting policy implemented by a federally funded agency.²⁷⁹ The SCCIA II court concluded that § 602's limited administrative remedies were not "comprehensive" under the National Sea Clammers' comprehensive remedy standard for precluding § 1983 suits,²⁸⁰ and, therefore, the plaintiffs were entitled to enforce § 602 regulations pursuant to § 1983.²⁸¹

According to Judge Orlofsky, the Supreme Court's Sandoval decision did not affect his conclusion that the [32 ELR 10473] plaintiffs were entitled to enforce § 602 regulations pursuant to § 1983.²⁸² First, the issue of whether § 602 itself creates a direct private cause of action is governed by a separate and different analysis, the four-factor Cort analysis, than whether § 602 regulations may be enforced pursuant to § 1983, which is determined by the three-part Blessing test.²⁸³ Thus, Sandoval's central holding that there is no private cause of action to enforce § 602 does not affect whether the same regulations may be enforced through § 1983.²⁸⁴ Second, the SLC argued that Justice Scalia's majority decision in Sandoval stated, in analyzing a different issue, that § 602's provisions for agency enforcement are "elaborate," and, therefore, that under the National Sea Clammers' test for determining whether a statute's remedies are sufficiently comprehensive to preclude a § 1983 suit, Congress must have intended to preclude enforcement of § 602 rights under § 1983.²⁸⁵ However, Justice Scalia himself in Sandoval stated that the Court was not addressing the separate issue of whether the remedies provided in § 602 are sufficiently comprehensive to override the strong presumption in favor of enforcing federal rights through § 1983.²⁸⁶ According to Judge Orlofsky, Justice Scalia's dicta in Sandoval that § 602's enforcement scheme is "elaborate" did not directly address and could not control the issue of whether "§ 602's enforcement mechanisms are so 'elaborate' that they overcome § 1983's presumption in favor of a plaintiff's ability to enforce federal rights under § 1983."²⁸⁷ The SCCIA II court concluded that Title VI's limited administrative remedies, which do not provide individual remedies for complainants, were too narrow to meet the National Sea Clammers' comprehensive remedies test for assuming that Congress must have intended to preclude a remedy under § 1983.²⁸⁸ Accordingly, the plaintiffs were entitled to enforce § 602 regulations pursuant to § 1983.

SCCIA II: The Court Awards Declaratory and Injunctive Relief

The defendants argued that the Eleventh Amendment barred the court from vacating the air permits issued by the NJDEP to the SLC because such an order would constitute retrospective relief that a court may not impose against a state agency under the Eleventh Amendment.²⁸⁹ However, the SCCIA II court concluded that it did have the authority to award prospective declaratory and injunctive relief.

Under § 1983, a court may issue a remedy only if the challenged conduct was committed by a "person" acting under color of state law.²⁹⁰ Under the Eleventh Amendment's sovereign immunity principles, states are normally immune from suit in federal court because they are not treated as "persons" within the meaning of § 1983 or other federal statutes.²⁹¹ Additionally, in Will v. Michigan Department of State Police,²⁹² the Supreme Court held that a suit for damages against a state official in his official capacity should be treated as one against the state and that such a state official is not to be considered a "person" under a § 1983 suit.²⁹³

However, in Ex Parte Young,²⁹⁴ the Supreme Court established a narrow exception to Eleventh Amendment immunity that authorizes federal courts to grant prospective injunctive relief against state officials to prevent a continuing violation of federal law.²⁹⁵ In Will, the Supreme Court held that a state official may be sued in her official capacity as a "person" under § 1983 where a plaintiff seeks prospective injunctive relief because "official-capacity actions for prospective relief are not treated as actions against the State."²⁹⁶ Accordingly, in SCCIA II, the court concluded [32 ELR 10474] that it could impose injunctive relief against NJDEP Commissioner Shinn.²⁹⁷

Finally, the SCCIA II court addressed whether the declaratory judgment it issued in SCCIA I against the issuance of a permit by NJDEP and Commissioner Shinn to the SLC was still appropriate. The SCCIA II court observed that declaratory relief may be appropriate even where injunctive relief is precluded and that the decision whether to issue declaratory relief may be based on equitable circumstances.²⁹⁸ Because "issuance of a declaratory judgment in this case will impose no burden on the state treasury and is ancillary to the injunctive relief issued by this Court," the SCCIA II court concluded that it was appropriate to continue to maintain a declaratory judgment against the NJDEP and Commissioner Shinn prohibiting the issuance of a permit that would violate the rights established in EPA's Title VI regulations.²⁹⁹

On May 10, 2001, immediately after Judge Orlofsky issued his supplemental opinion, the SLC applied to the district court for a stay pending its appeal of the preliminary injunction prohibiting operation of its facility.³⁰⁰ On May 14, 2001, the district court denied the SLC's stay application.³⁰¹ On May 29, 2001, the NJDEP and Commissioner Shinn requested a stay of the remand process from the district court, but on June 4, 2001, the district court denied the defendants' request for a stay of the orders.³⁰²

The Third Circuit Reverses the District Court

Preliminary Moves: The Third Circuit Lifts the Injunction Pending the Appeal

On June 12, 2001, the Third Circuit granted the SLC's request for an expedited appeal.³⁰³ Additionally, on June 15, 2001, a three-judge motions panel of the Third Circuit issued an order granting the SLC's request to stay the district court's preliminary injunction pending the SLC's appeal and, thus, allowed the facility to operate during the appeals process.³⁰⁴ First, the Third Circuit concluded that the SLC was likely to prevail on appeal because the plaintiffs had failed to assert a violation of a federal right enforceable under § 1983 and instead had merely alleged a violation of a federal law that is not enforceable under § 1983.³⁰⁵ The order did not fully explain why it determined that § 602 merely creates federal law rather than enforceable rights, but it "noted the Supreme Court's discussion in Alexander v. Sandoval . . . regarding the question whether Section 602 . . . creates rights."³⁰⁶ While acknowledging that Sandoval's discussion of whether § 602 creates rights are "dicta," the court stated that "'we must consider [them] with deference.'"³⁰⁷ It appears that the Third Circuit panel believed that a majority of the Supreme Court would follow Sandoval's dicta.

Second, the court of appeals panel determined that the SLC would suffer irreparable economic injury if it could not operate the plant.³⁰⁸ In its motion, the SLC claimed economic losses of more than $ 500,000 per week, and alleged it is suffering permanent loss of market share.³⁰⁹ The district court had argued that purely economic injury does not constitute irreparable injury, but the Third Circuit concluded that irreparable injury may be found when a money judgment cannot compensate for economic injury.³¹⁰ The motions panel determined that the SLC's losses from its inability to operate the plant pending appeal could not be compensated for by a money judgment because even if the defendants ultimately prevailed, the plaintiffs would not be responsible for any economic losses.³¹¹

Third, in considering whether lifting the injunction would cause harm to other parties, the court of appeals panel noted that the facility is in compliance with all applicable federal and state laws and that the stay will only authorize operation of the plant for a short time pending the resolution of the expedited appeal.³¹² Fourth, in addressing whether granting or denying the motion will serve the public interest, the Third Circuit observed that the preliminary injunction would cause at least a temporary and perhaps a permanent loss of jobs and other economic harm in the Camden area.³¹³ Implicitly, the court appeared to believe that these economic losses outweighed the health and safety risks of operating the facility for a short period of time pending the expedited appeal.

In June 2001, the NJDEP conducted the disparate impact analysis ordered by the district court and determined that the cement plant would not have such an impact on the Waterfront South neighborhood.³¹⁴ On August 10, 2001, the three-judge panel of the Third Circuit that had been assigned to hear the appeal expressly retained jurisdiction of the case but also remanded the case to the district court so that Judge Orlofsky could clarify whether his "order vacating the air permits survived the completion of the [NJDEP's] adverse impact study."³¹⁵ If Judge Orlofsky's order vacating the permits was no longer in effect, the Third Circuit might not need to decide the contentious appeal. However, on August 13, 2001, Judge Orlofsky responded to the Third Circuit that he "fully intended that the injunction would survive the filing [32 ELR 10475] of a disparate impact statement by NJDEP, pending a hearing to determine whether the NJDEP had, in fact, complied with Title VI."³¹⁶

The Majority Reverses the District Court

On December 17, 2001, the Third Circuit in a two-to-one decision reversed the district court. In his majority opinion, Judge Morton I. Greenberg, joined by Judge Thomas L. Ambro, concluded that the plaintiffs did not have a right to enforce EPA's Title VI disparate impact regulations through § 1983 because Sandoval had clearly stated that Title VI establishes a judicially enforceable right against only intentional discrimination.³¹⁷ Accordingly, the Third Circuit held that the district court had erred as a matter of law in relying on § 1983 to issue a preliminary injunction against the defendants and reversed the lower court.³¹⁸

The federal circuit courts of appeals are divided about whether a valid federal regulation may create a right enforceable through § 1983 where the proposed right is not explicitly contained in the statute.³¹⁹ The majority implicitly rejected prior Third Circuit decisions that had favored enforcement of regulatory rights and instead adopted the narrow approach used in the U.S. Courts of Appeals for the Fourth and Eleventh Circuits that regulations may create enforceable rights only if they clearly reflect rights already inherent in the statute itself.³²⁰ According to the majority, disparate impact regulations under Title VI were generally inconsistent with the statute's prohibition against only intentional discrimination and, thus, could not be enforced through § 1983.³²¹

In Wright v. City of Roanoke,³²² the Supreme Court had held that certain U.S. Department of Housing and Urban Development regulations could create enforceable rights under § 1983.³²³ There has been fierce debate over the meaning of Wright because it is the Supreme Court decision that most clearly addresses whether a regulation is enforceable through § 1983.³²⁴ The majority disapproved the district court's holding that the Supreme Court in Wright had established that valid federal regulations may create rights enforceable through § 1983 under the Blessing analysis.³²⁵ According to the majority, the regulation in Wright had "merely defined the specific right that Congress had already conferred through the statute."³²⁶ The majority concluded that Wright had not held that a regulation alone may establish a right that does not explicitly appear in the statute itself.³²⁷ Because disparate impact regulations go beyond the intentional discrimination prohibition in § 601 of Title VI, the majority concluded that the district court had erred in relying on Wright.³²⁸ However, the majority failed to address the more difficult issue of whether a regulation might establish enforceable rights through § 1983 if the right is implicit in the statute.

The majority strained to demonstrate that none of the Third Circuit's prior decisions had justified the district court's determination that valid regulations may create rights enforceable through § 1983. For example, in 1984 the Third Circuit in Alexander v. Pope³²⁹ had concluded that a regulation had created an enforceable right,³³⁰ but the majority in South Camden argued that the right at issue did not go beyond rights already in the statute, and, in the alternative, that Alexander was inconsistent with more recent Supreme Court decisions if it indeed relied on regulations to go beyond statutory rights.³³¹ The majority dismissed a statement in West Virginia University Hospital v. Casey³³² that regulations could create rights enforceable through § 1983 as mere dicta because that case relied on a statute to create the right at issue.³³³ In a 1999 decision, Powell,³³⁴ the Third Circuit had held that there is a private right of action to enforce disparate impact regulations under § 602 of Title VI³³⁵ and strongly implied that there was also such a right through § 1983.³³⁶ However, the South Camden majority observed that Powell had not explicitly held that there is an enforceable right through § 1983 and that even if it had that any such conclusion could not survive Sandoval.³³⁷ Even if the majority's characterization of the actual holdings of these decisions is accurate, the court adopted a far narrower approach to the enforcement of rights through § 1983 that is contrary to at least the spirit of these earlier Third Circuit decisions.

The majority also argued that a number of decisions relied upon by the district court did not support the view that regulations alone could create rights enforceable through § 1983 and instead had merely supported the conclusion that a statute and an accompanying regulation could do so.³³⁸ Furthermore, the majority favorably cited decisions [32 ELR 10476] from the Fourth and Eleventh Circuits concluding that a regulation alone may not create a right enforceable through § 1983.³³⁹ The majority explicitly rejected the U.S. Court of Appeals for the Sixth Circuit's holding in Loschiavo v. City of Dearborn³⁴⁰ that a regulation alone could create a right enforceable through § 1983 as inconsistent with Wright and with at least the spirit of the subsequent Sandoval decision.³⁴¹

Ultimately, the majority in South Camden rejected the district court's decision because they held in light of Sandoval that Congress had not intended to create a right against disparate impact discrimination in Title VI.³⁴² Sandoval clearly stated that § 601 of Title VI prohibits only intentional discrimination and that § 602 does not provide any additional rights beyond those in § 601.³⁴³ While Sandoval only addressed whether there is a private right of action to enforce § 602 disparate impact regulations, the majority in South Camden concluded that the discussion in Sandoval clearly precluded a finding that Congress intended to create a right in § 602 against disparate impact discrimination.³⁴⁴ Thus, even if § 602 disparate impact regulations are valid, the majority concluded that such regulations do not further a statutory right in Title VI and, therefore, that these regulations may not be enforced through § 1983.³⁴⁵ Accordingly, the majority held that the district court had erred as a matter of law in concluding that § 602 disparate impact regulations establish a right that is enforceable through § 1983 and, therefore, erred in finding that the plaintiffs were likely to succeed on the merits of their claim.³⁴⁶ Accordingly, the court reversed the district court's issuance of preliminary injunctive relief and remanded the case to the lower court for further proceedings consistent with its opinion.³⁴⁷

Judge McKee's Dissenting Opinion

Judge McKee criticized the majority for overreading the scope of Sandoval and unnecessarily overruling Third Circuit precedent that there is a right to enforce § 602 disparate impact regulations through § 1983.³⁴⁸ In Powell,³⁴⁹ the Third Circuit had held that plaintiffs may enforce § 602 disparate impact regulations through a private right of action.³⁵⁰ Furthermore, Powell had clearly stated that the plaintiffs could enforce those same regulations through § 1983.³⁵¹ While Sandoval had overruled the portion of Powell holding that there is a private right of action to enforce § 602 disparate impact regulations, Judge McKee strongly criticized the majority for misstating and ignoring Powell's § 1983 analysis.³⁵² He demonstrated that Sandoval was a narrow decision addressing only the question of whether a private right of action to enforce § 602 disparate impact regulations and that the Supreme Court had not determined the entirely separate issue of whether those same regulations may be enforced through § 1983.³⁵³

Judge McKee contended that the majority should have followed the Powell decision's conclusion that there is a right to enforce § 602 disparate impact regulations through § 1983 because Sandoval had neither overruled nor undermined the intellectual basis for that precedent.³⁵⁴ Because the Blessing test for § 1983 actions is different from the Cort analysis for implying private rights of action, Judge McKee agreed with Justice Stevens' dissenting opinion in Sandoval that it was entirely possible for the Supreme Court to hold that plaintiffs may not enforce § 602 disparate impact regulations through a private right of action, but for the Third Circuit to hold those same regulations are enforceable through § 1983.³⁵⁵ Furthermore, Judge McKee argued that the majority had read Wright too narrowly and ignored the fact that the Supreme Court in that decision had applied the Blessing analysis to the regulations rather than the statute.³⁵⁶ Thus, he contended it was appropriate under Wright to conclude that valid regulations may establish rights through § 1983.³⁵⁷ Because agencies have authority under § 602 to issue valid disparate impact regulations, Judge McKee concluded that the plaintiffs could enforce them through § 1983 even if § 601 is limited to intentional discrimination.³⁵⁸ In light of Powell's continuing precedential value, as well as other decisions including Loschiavo and Justice Stevens' dissenting opinion in Sandoval, he maintained that the plaintiffs had a "reasonable probability of success" on the merits,³⁵⁹ which he argued was the correct standard of review rather than the majority's analysis of whether the plaintiffs' claim was "likely" to succeed.³⁶⁰

On January 15, 2002, the Third Circuit by an eight-to-three vote denied the plaintiffs' request for an en banc rehearing.³⁶¹ Judges Julio M. Fuentes, Carol Los Mansmann, and McKee would have granted a rehearing.³⁶²

[32 ELR 10477]

Impact on Future Title VI Complaints

In Sandoval, the Supreme Court assumed that § 602 disparate impact regulations may be enforced by federal agencies, although Justice Scalia in dicta observed that such regulations are in "tension" with the Court's rule that § 601 forbids only intentional discrimination.³⁶³

Because environmental justice advocates can still file Title VI administrative complaints with the Agency, EPA still needs to consider how to address environmental justice challenges similar to the South Camden situation. In light of EPA's draft guidances on Title VI and the antidiscrimination principles underlying Title VI and its implementing regulations, the SCCIA I decision correctly interpreted EPA's § 602 disparate impact regulations to impose an independent duty on recipients to go beyond compliance with existing regulations to examine whether a permit decision will have significant unjustified adverse disparate impacts on a minority group protected by the statute. Even though the Third Circuit rejected SCCIA II's § 1983 holding, EPA should follow SCCIA I's reasoning when the Agency decides administrative complaints under § 602 of Title VI. According to SCCIA I, state and local environmental agencies that receive federal funding have a separate obligation under Title VI and EPA's implementing regulations to prevent unjustified adverse disparate impacts against minority groups beyond just requiring compliance with federal and state environmental laws. In assessing whether a permit is likely to cause adverse disparate impacts to a protected minority group, EPA's draft guidances, which admittedly are not binding, strongly encourage state or local agencies receiving EPA financial assistance to evaluate the probable cumulative health and environmental impacts from a permit in surrounding areas even if the impacts from the proposed facility are beyond the scope of existing environmental laws.³⁶⁴ Furthermore, as long as the recipient agency has some legal authority to control the distribution of pollution-creating facilities in an area, EPA's draft guidances on Title VI state that the recipient should consider the cumulative impact of both proposed and prior permitting decisions in creating unjustified adverse disparate impacts to protected minority groups.³⁶⁵

Critics may argue that SCCIA I at least implied that state agencies must engage in affirmative action to avoid placing polluting facilities in minority neighborhoods and instead locate them in predominantly white areas, but the decision in fact is limited to situations in which a plaintiff can prove substantial unjustified disparate impacts. SCCIA I required the plaintiffs to demonstrate that the proposed facility would cause serious health impacts, in conjunction with cumulative impacts from surrounding sources, to minority residents in the Waterfront South community. Additionally, the court required the plaintiffs to show that the amount of air pollution in the Waterfront South community was significantly disproportionate to the level of pollution in similarly situated non-minority comparison areas.³⁶⁶ Thus, the court's reasoning generally does not imply that state agencies must always avoid siting in minority areas or that there must be a precise proportional balance of facilities in minority and majority areas.

In the future, state agencies can reduce the likelihood they will lose a Title VI case by taking reasonable steps to address and mitigate potential harms to minority communities. First and most importantly, state agencies must carefully examine the health impacts of a proposed facility on both majority and minority populations. Because minority populations often suffer from a higher incidence of asthma and other diseases, a state agency must consider whether a proposed facility will cause significant health risks to minority populations even if the permit will meet existing legal standards. The refusal of the NJDEP to evaluate the health impacts of the proposed SLC facility on minority populations in the Waterfront South community was probably the most important factor leading Judge Orlofsky to find a Title VI violation.

Even if a proposed facility could cause significant health risks to a minority community, a recipient may still be able to justify a project under EPA's § 602 regulations if the recipient can demonstrate that the facility has significant net benefits to the general public and minority community and that there are no suitable less discriminatory alternatives.³⁶⁷ Alternatively, a recipient can also justify a permit that would otherwise produce unacceptable disparate impacts if appropriate mitigation measures can reduce the facility's risk to the affected community.³⁶⁸ Because of its strategy of denying that it had any obligation to consider Title VI issues as long as the facility complied with existing requirements, the NJDEP refused to provide any justification for the facility. The NJDEP never addressed whether the proposed facility's net benefits outweighed the harms alleged by the plaintiffs, the possibility of less discriminatory alternatives, or mitigation measures.³⁶⁹ In the future, permit applicants and state agencies should be careful to present stronger justifications for their facilities and address any significant health concerns even if they go beyond existing requirements.

Conclusion

SCCIA I was the first decision to use EPA's Title VI disparate impact regulations to invalidate an otherwise valid environmental permit. Relying on EPA's draft guidances and Select Steel decision, SCCIA I concluded that state or local agencies receiving EPA funding have an independent obligation under Title VI to determine whether a permit decision causes significant unjustified disparate impacts to a protected minority group despite a permit applicant's compliance with all existing regulations. SCCIA I appeared to be a great victory for environmental justice advocates. Then just five days later, the Supreme Court in Sandoval³⁷⁰ held that there is no private right of action to enforce disparate impact regulations promulgated under § 602 of Title VI, which seemed to overrule SCCIA I.

Yet Justice Stevens' dissenting opinion in Sandoval raised the possibility that § 602 regulations could be enforced [32 ELR 10478] under § 1983.³⁷¹ In SCCIA II, Judge Orlofsky argued that § 602 regulations establish a definite federal right for a class including the plaintiffs, and, therefore, there is a strong presumption that they may be enforced through § 1983. Despite dicta in Justice Scalia's Sandoval opinion suggesting that § 602 remedies are "elaborate,"³⁷² Judge Orlofsky concluded that § 602 remedies are not extensive enough to preclude relief under § 1983 because EPA's regulations do not provide any individual relief.³⁷³ Accordingly, SCCIA II reaffirmed the injunctive and declaratory relief in SCCIA I preventing Commissioner Shinn and the NJDEP from awarding a permit to the SLC to operate the proposed cement facility in South Camden.³⁷⁴

SCCIA II's analysis of whether § 602 regulations may be enforced under § 1983 was consistent with the three-part Blessing test. Because Congress has explicitly authorized § 1983 suits to enforce federal statutory rights, including regulations that "flesh out" rights that are clearly implicit in a federal statute, it is appropriate to use § 1983 to enforce federal rights that may not be enforced through a private right of action.³⁷⁵ Blessing's three-part test for enforcing federal rights under § 1983 is broader than Cort's four-part test for implying a private right of action.³⁷⁶ Under Blessing's three-part test, a § 1983 suit may be used to enforce a definite federal right that is intended to benefit a class including the plaintiff even if there is no evidence that Congress must intend to allow a direct private right of action.³⁷⁷

Nevertheless, the Third Circuit read Blessing narrowly to require specific evidence that Congress intended to establish a right in Title VI itself against disparate impact discrimination and rejected the district court's reliance on EPA's regulations.³⁷⁸ Applying the strict test used in the Eleventh and Fourth Circuits that regulations alone may not establish rights enforceable through § 1983 unless they merely flesh out rights clearly established in the statute, the majority concluded that § 602 disparate impact discrimination regulations could not establish enforceable rights in light of the Supreme Court decisions determining that Title VI prohibits only intentional discrimination.³⁷⁹ The majority explicitly rejected the Sixth Circuit's holding in Loschiavo that regulations alone may establish rights enforceable under § 1983.³⁸⁰ Furthermore, the majority adopted a cramped construction of Powell and other Third Circuit decisions that had taken a broader view toward enforcing regulations under § 1983.³⁸¹ While contending that their decision was technically consistent with prior Third Circuit decisions, the majority acknowledged that they were reading such decisions narrowly in light of Sandoval's actual holding and its dicta.³⁸²

While assuming that disparate impact discrimination regulations under § 602 are valid,³⁸³ the majority relied on Sandoval's holding that Congress did not intend to establish a private right of action to enforce disparate impact regulations to address the separate and different question of whether Congress intended such regulations to establish a right enforceable through § 1983.³⁸⁴ Based on Sandoval's conclusion that Title VI prohibits only intentional discrimination,³⁸⁵ the majority inferred that the § 602 disparate impact regulations go beyond the statute and therefore do not establish federal rights enforceable under § 1983.³⁸⁶ Thus, while Sandoval only addressed what remedies are available under § 602, the majority used that analysis to consider whether Congress intended to create a right against disparate impact discrimination that is enforceable through § 1983.³⁸⁷

Judge McKee's dissenting opinion was more consistent with prior Third Circuit precedent regarding § 1983 actions, but he did not persuade his colleagues that those decisions survived Sandoval.³⁸⁸ Judge McKee correctly observed that Sandoval's actual holding did not preclude enforcement of Title VI's disparate impact discrimination regulations through § 1983.³⁸⁹ Agreeing with the Sixth Circuit's holding in Loschiavo and prior Third Circuit decisions that regulations may establish rights enforceable under § 1983, he would have affirmed the district court's issuance of a preliminary injunction to prevent the issuance of a permit by the NJDEP.³⁹⁰

Ultimately, the Supreme Court is likely to address whether § 602 disparate impact regulations may be enforced under § 1983.³⁹¹ First, there is a split in the circuits regarding [32 ELR 10479] whether and when agency regulations may establish rights enforceable through § 1983.³⁹² Additionally, it is quite possible that other circuits will adopt Judge McKee's dissenting approach. An interesting question is whether the Court would divide along the same five-to-four vote found in Sandoval, or whether at least one Justice will conclude that § 1983 suits enforcing Title VI regulations require a different result.

Despite the Third Circuit's reversal of SCCIA II, the SCCIA I decision may increase pressure on EPA to issue a final Title VI guidance.³⁹³ EPA should use the SCCIA I decision as a model for its own investigation and resolution of Title VI administrative claims. Based on EPA's draft guidances and its Select Steel decision, the SCCIA I court correctly concluded that Title VI imposes a separate duty on a recipient agency to examine whether a permit will cause significant disparate impacts on protected minority groups even if the permit complies with all existing standards. To meet its Title VI duties, a recipient should examine whether a proposed facility's cumulative environmental and health impacts will harm a protected minority community in light of the residents' health concerns and the existing distribution of facilities and pollution in a community. The SCCIA I court properly found that the plaintiffs had submitted substantial evidence that the surrounding, predominantly minority community would suffer significant adverse harms from the facility's particulate and ozone precursor emissions, especially because the proposed plant would have significant cumulative impacts in an area with a large number of existing polluters.

Even if EPA fails to develop new Title VI guidance, some states are likely to develop new procedures to avoid disputes over environmental justice. Perhaps in response to the controversy surrounding the South Camden case, on February 4, 2002, the NJDEP proposed new rules to require a pre-application meeting with the department to determine if an applicant's proposed new permit, renewed permit, or major modification of an existing permit should be subject to an Expanded Community Participation Process for Environmental Equity that could include environmental justice screening and assessment of potential impacts to communities determined to be at risk.³⁹⁴ The proposed New Jersey rules seek to expand community participation by strongly encouraging permit applicants to negotiate with state and community officials to resolve any environmental justice issues, even if a permit meets all legal requirements.³⁹⁵ Furthermore, the proposal provides a voluntary mediation option for the permit applicant and community to submit any unresolved issues to the NJDEP's Office of Dispute Resolution.³⁹⁶ During March 2002, the NJDEP will hold three public meetings on the proposed rules and will accept written comments on them until April 5, 2002.³⁹⁷ If successful, these New Jersey procedures could serve as a model for EPA in improving the Agency's resolution of Title VI disputes and for other states. However, it is difficult to evaluate this proposal until the NJDEP issues final rules and there is some experience with its implementation.

While they were on the same side regarding Title VI, on January 11, 2002, the NJDEP issued a notice of violation to SLC for failing to properly monitor particulate emissions from the South Camden cement plant.³⁹⁸ The NJDEP has proposed a $ 20,550 penalty for alleged violations between the facility's opening in July 2001 and September 2001, but SLC says it will contest the proposed fine.³⁹⁹ SLC has contended that the violation is simply a paperwork mistake resulting from a malfunctioning air monitor and that a backup monitor demonstrated that the facility's emissions were in compliance.⁴⁰⁰

Many state officials and industry representatives may believe that the approach in SCCIA I would prevent new industrial projects in industrial areas with significant minority populations, but the decision in fact does not preclude projects that carefully minimize pollution impacts to communities of color. In the future, recipients can do a better job than the NJDEP in justifying their permit decisions. First, recipients should carefully examine a proposed permit's cumulative impacts on a minority community and assess whether those impacts are significant in light of the community's health status. Second, they should consider possible less discriminatory alternatives. Third, recipients should require permit applicants to mitigate any significant impacts whenever feasible. Fourth, recipients should evaluate the proposed facility's environmental and economic benefits to the affected community and the public at large. By following these four steps, a recipient may be able to justify a proposed facility that otherwise would have unacceptable adverse disparate impacts. With careful planning, it is possible to achieve both economic growth and less pollution in America's minority communities.

2. Section 602 of the Civil Rights Act provides:

Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with the achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.

42 U.S.C. § 2000d-1.

n4 Id. at 475. According to the NJDEP's Third Circuit Brief, the district court's statement that the NJDEP only claimed a duty to comply with existing environmental standards "grossly mischaracterized" the agency's position. Brief for Appellees NJDEP and Commissioner Robert C. Shinn Jr., at 33 footnote *. South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, 274 F.3d 771 (3d Cir. 2001) [hereinafter South Camden]. According to its brief, the NJDEP "acknowledges that it may not use discriminatory criteria or methods . . . ." Id.

5. See generally U.S. EPA, Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance), 65 Fed. Reg. 39650 (June 27, 2000) (available from the ELR Document Service, ELR Order Nos. AD-4517 (Draft Recipient Guidance) and AD-4516 (Draft Revised Investigation Guidance)) [hereinafter Guidances]; Bradford C. Mank, The Draft Title VI Recipient Revised Investigation Guidances: Too Much Discretion for EPA and a More Difficult Standard for Complainants?, 30 ELR 11144 (Dec. 2000) [hereinafter Mank, Guidances].

6. See Letter from Ann E. Goode, Director, EPA's Office of Civil Rights, Re: EPA File No. 5R-98-R5 (Select Steel Complaint) to St. Francis Prayer Center [Complainant] and Michigan Department of Environmental Quality [Recipient] (Oct. 30, 1998) (dismissing Title VI complaint against Michigan Department of Environmental Quality); LUKE W. COLE, WRONG ON THE FACTS, WRONG ON THE LAW, 29 ELR 10775 (Dec. 1999) (criticizing EPA's dismissal of the Select Steel complaint).

7. 121 S Ct. 1511 (2001).

8. Id. at 1521-23.

9. Id. at 1523.

10. Section 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

See 42 U.S.C. § 1983.

11. Justice Stevens stated:

To the extent that the majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. section 1983 in framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference section 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama's English-only policy in a complaint that invokes section 1983 even after today's decision.

Sandoval, 121 S Ct. at 1527 (Stevens, J., dissenting); see generally Bradford Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, 49 U. KAN. L. REV. 321 (2001) (arguing Title VI disparate impact regulations may be enforced through § 1983).

13. Id. at 548, 31 ELR at 20690.

14. Id. at 549, 31 ELR at 20691.

15. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, No. 01-2224 (3d Cir. June 15, 2001) [hereinafter Order]; Shannon P. Duffy, Injunction Is Lifted; Cement Plant Can Open, LEGAL INTELLIGENCER, June 20, 2001, at 3; Peyton Sturges, Environmental Justice: Third Circuit Should Reconsider Decision Lifting Ban on Cement Plant, Residents Say, Daily Env't Rep. (BNA), June 22, 2001, at A-4.

16. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, 274 F.3d 771 (3d Cir. 2001) [hereinafter South Camden].

17. See id. at 791-99 (McKee, J. dissenting).

18. See id. at 799 (McKee, J. dissenting).

19. Section 601 of the statute provides that "no person in the United States shall, on the ground of race, color, ornational origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 601-605, 78 Stat. 241, 252-53, 42 U.S.C. § 2000d; Alexander v. Sandoval, 121 S. Ct. 1511, 1516-18 (2001); Bradford C. Mank, Title VI, in THE LAW OF ENVIRONMENTAL JUSTICE 23-25 (Michael Gerrard ed., 1999) [hereinafter Mank, Title VI].

20. 42 U.S.C. § 2000d-1; Mank, Title VI, supra note 19, at 25; Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations?, 24 COLUM. J. ENVTL. L. 1, 12 (1999) [hereinafter Mank, Private Cause of Action].

21. Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 618 (1983) (Marshall, J.) (recipients may not use "'criteria or methods of administration which have the effect of subjecting individuals to discrimination'" (quoting 45 C.F.R. § 80.3(b)(2) (1964)); Guardians, 463 U.S. at 592 n.13 (White, J.) (observing that "every Cabinet department and about [40] agencies adopted Title VI regulations prohibiting disparate-impact discrimination"); see Mank, Private Cause of Action, supra note 20, at 13; Mank, Title VI, supra note 19, at 25; Paul K. Sonn, Fighting Minority Underrepresentation in Publicly Funded Construction Projects After Croson: A Title VI Litigation Strategy, 101 YALE L.J. 1577, 1581 n.25 (1992) (listing Title VI regulations for several federal agencies).

22. "A recipient [of federal funds] shall not use criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin." 40 C.F.R. § 7.35(b); see generally 38 Fed. Reg. 17968 (Apr. 20, 1973), as amended 49 Fed. Reg. 1656 (Jan. 12, 1984) (codified at 40 C.F.R. pt. 7)); Mank, Private Cause of Action, supra note 20, at 17; Mank, Title VI, supra note 19, at 25-26.

23. See 28 C.F.R. § 42.410; Mank, Private Cause of Action, supra note 20, at 17; Mank, Title VI, supra note 19, at 26.

24. See 40 C.F.R. § 7; James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 STAN. ENVTL. L.J. 125, 128 (1994); Mank, Title VI, supra note 19, at 27-29.

25. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898, § 1-101, 3 C.F.R. § 859 (1995), reprinted in 42 U.S.C. § 4321, ADMIN. MAT. 45075; see generally Bradford C. Mank, Executive Order No. 12898, in THE LAW OF ENVIRONMENTAL JUSTICE 103 (Michael Gerrard ed., 1999).

26. See Presidential Memorandum Accompanying Executive Order No. 12898, 30 WEEKLY COMP. PRES. DOC. 279, 280 (Feb. 11, 1994); Mank, Executive Order No. 12898, supra note 25, at 107.

27. See generally Mank, Executive Order No. 12898, supra note 25, at 107-09 (discussing efforts by President William J. Clinton and EPA Administrator Carol Browner to expand EPA's environmental justice programs).

28. See Mank, Guidances, supra note 5, at 11147-48, 11157-61 (discussing EPA's criteria for accepting a complaint); Mank, Private Cause of Action, supra note 20, at 20-23.

29. See Mank, Guidances, supra note 5, at 11147-48.

30. See U.S. EPA, STATUS SUMMARY TABLE OF EPA ADMINISTRATIVE COMPLAINTS (2001); see generally 40 C.F.R. § 7.115(c)(1) (stating EPA will issue preliminary findings within 180 days from start of complaint).

31. See STATUS SUMMARY TABLE OF EPA ADMINISTRATIVE COMPLAINTS, supra note 30.

32. Through riders attached to EPA's annual appropriations bill from October 1998 until September 30, 2001, Congress prohibited EPA from conducting investigations for complaints received after October 21, 1998, until the Agency released final Title VI guidance. See Margaret Kriz, Coloring Justice Green, NAT'L J., July 28, 2001, 2001 WL 25925949 (all news database, no page numbers); Bradford C. Mank, Environmental Justice and Title VI: Making Recipient Agencies Justify Their Siting Decisions, 73 TUL. L. REV. 787, 810-11 & n.119 (1999) [hereinafter Mank, Recipient Agencies]; infra note 52 and accompanying text. However, Congress eliminated the restrictions beginning with the fiscal year (FY) 2002 budget. See Marcia Coyle, The EPA Braces to Clear Title VI Pileup, NAT'L L.J., Oct. 15, 2001, at A12; Kriz, supra; infra note 53 and accompanying text.

33. See U.S. EPA, TITLE VI COMPLAINTS FILED WITH EPA available at http//:www.epa.gov.civilrights/t6complnt.htm (last modified Nov. 29, 2001) (under "List of Title VI Complaints Filed With EPA").

34. OCR, U.S. EPA, DRAFT TITLE VI GUIDANCE DOCUMENTS: QUESTIONS AND ANSWERS 6 (Question 20), available at http://www.epa.gov/civilrights/t6guidefaq2.pdf [hereinafter U.S. EPA, QUESTIONS AND ANSWERS].

35. See Kriz, supra note 32 (reporting House appropriations panel provided $ 11.9 million for civil rights complaints, $ 2.7 million more than FY 2001); Steve Cook, Environmental Justice: "Disparate Impact" Suits Dealt Blow in Supreme Court Civil Rights Decision, 32 Env't Rep. (BNA) 819, 819 (Apr. 27, 2001) (reporting Bush Administration plans to increase budget for processing Title VI complaints despite overall budget cuts for EPA).

36. Memorandum from Christine Todd Whitman, EPA Administrator, to All EPA Employees, on Progress on Fairness and Equal Opportunity Initiatives (May 3, 2001); Hearing on EPA Budget Before the Senate Environment and Public Works Committee, 107th Cong. (May 15, 2001), 2001 WL 21754879 (statement of EPA Administrator Christine Todd Whitman); Whitman Memo Promises Elimination of Equity Case Backlog, ENVTL. POL'Y ALERT, May 16, 2001, at 41.

37. Steve Cook, Environmental Justice: EPA Convenes Task Force to Clear Backlog of Civil Rights Complaints, 32 Env't Rep. (BNA) 1426, 1426 (July 23, 2001); Coyle, supra note 32, at A12; Kriz, supra note 32.

38. See Memorandum from Christine Todd Whitman, EPA Administrator, to Senior Agency Staff, on EPA's Commitment to Environmental Justice (Aug. 9, 2001), available at www.epa.gov/oeca/main/ej/epacommit.pdf (also available from the ELR Document Service, ELR Order No. AD-4661).

39. See U.S. EPA, STATUS SUMMARY TABLE OF EPA ADMINISTRATIVE COMPLAINTS (2002), available at http://www.epa.gov/civilrights/docs/t6stfeb2002.pdf.

40. See Coyle, supra note 32, at A12 (reporting many civil rights proponents are skeptical that EPA will reduce backlog or will do so fairly).

41. See STATUS SUMMARY TABLE OF EPA ADMINISTRATIVE COMPLAINTS, supra note 39, at tbl. 3: Reasons for Dismissal of Complaints (listing one complaint as dismissed with no adverse impact found).

42. See Letter from Ann E. Goode, supra note 6 (dismissing Title VI complaint against Michigan Department of Environmental Quality); COLE, supra note 6 (criticizing EPA's dismissal of Select Steel complaint); Mank, Title VI, supra note 19, at 48-50.

43. Mank, Title VI, supra note 19, at 47-48; but see COLE, supra note 6 (arguing Michigan was not actually in compliance with NAAQS and that even if it were in compliance then it was inappropriate to assume such compliance necessarily precluded a Title VI claim).

44. See generally Mank, Private Cause of Action, supra note 20.

46. See generally Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) (holding private right of action under disparate impact regulations issued pursuant to § 602 of Title VI), rev'd, Alexander v. Sandoval, 121 S. Ct. 1511 (2001); Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999) (same), cert. denied, 528 U.S. 1046 (1999); Mank, Private Cause of Action, supra note 20, at passim; Guidances, supra note 5, at 39671 n.77 (raising issue of private right of action).

47. See supra notes 7-9 and accompanying text.

48. See infra notes 317-47 and accompanying text.

49. The Agency set forth a five-step process for evaluating whether a recipient's approval or renewal of a permit will create disparate impacts: (1) identifying the affected population, especially those in close proximity to the facility; (2) determining the demographics of the affected population through mapping technology such as geographic information systems; (3) determining the universe(s) of facilities and total affected population(s), especially the cumulative pollution burden of neighboring facilities; (4) conducting a disparate impact analysis by both examining the racial or ethnic composition within the affected population and by comparing that composition to non-affected populations in other relevant areas; and (5) determining the significance of the disparity through the use of standard statistical methods. See U.S. EPA, INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS 9-12 (1998) (available from the ELR Document Service, ELR Order No. AD-3660) [hereinafter U.S. EPA, INTERIM GUIDANCE]; Mank, Title VI, supra note 19, at 40-45; Mank, Recipient Agencies, supra note 32, at 795-98.

50. See U.S. EPA, INTERIM GUIDANCE, supra note 49, at 11-12; Mank, Title VI, supra note 19, at 43-44.

51. See Guidances, supra note 5, at 39651, 39692; Cheryl Hogue, Comments on Title VI Guidance Seek Clearer Definitions, Input From More Parties, 29 Env't Rep. (BNA) 234 (May 22, 1998) [hereinafter Hogue, Comments on Title VI Guidance]; Mank, Title VI, supra note 19, at 44.

52. The riders did not affect complaints that had already been accepted for investigation prior to October 1998 date. See, e.g., Departments of Veterans Affairs and Housing and Urban Development—Appropriations, Pub. L. No. 106-377, 114 Stat. 1441, 1441A-41 (Oct. 27, 2000) ("That none of the funds made available in this Act may be used to implement or administer the interim guidance issued on February 5, 1998, by the [EPA] relating to Title VI of the Civil Rights Act of 1964 . . . with respect to complaints filed under such title after October 21, 1998, and until guidance is finalized."); U.S. EPA, QUESTIONS AND ANSWERS, supra note 34, at 6 (Question 19); Appropriations Act for Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies for Fiscal Year Ending September 30, 1999, Pub. L. No. 105-276, 112 Stat. 2461, 105th Cong. tit. III (1998); supra note 32 and accompanying text.

53. See Kriz, supra note 32.

54. See supra note 5 and accompanying text; Mank, Guidances, supra note 5. Because they were released together in the Federal Register, Judge Orlofsky treated the two collectively as the draft guidances, thus, this Article will largely follow his nomenclature.

55. Guidances, supra note 5, at 39650, 39651-52, 39655, 39656-64; Mank, Guidances, supra note 5, at 11151-56.

56. Guidances, supra note 5, at 39651-54, 39668-83; Mank, Guidances, supra note 5, at 11155-73.

57. Mank, Guidances, supra note 5, at 11146.

58. See Guidances, supra note 5, at 39650, 39654 (listing six locations for public listening sessions: Washington, D.C.; Dallas; Chicago; New York City; Los Angeles; and Oakland); EPA, Public Meetings to Receive Comments on the Draft Title VI Guidance Documents, at http://www.epa.gov/ocrpage1/t6pubmtgs.htm (last visited Feb. 7, 2002) (observing EPA added Philadelphia as seventh public listening location); Mank, Guidances, supra note 5, at 11146.

59. See Guidances, supra note 5, at 39650; U.S. EPA, QUESTIONS AND ANSWERS, supra note 34, at 3; Mank, Guidances, supra note 5, at 11146.

60. See infra notes 77-78, 81-83, 116, and accompanying text.

61. See, e.g., Jeffrey M. Gaba, South Camden and Environmental Justice: Substance, Procedure, and Politics, 31 ELR 11073, 11074-75 (Sept. 2001).

62. The Executive Order provides:

This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, its agencies, its officers, or any other person with this order.

Exec. Order No. 12898, supra note 25, § 6-609, ADMIN. MAT. at 45076; Sur Contra la Contaminacion v. EPA, 202 F.3d 443, 449-50, 30 ELR 20358, 20360 (1st Cir. 2000); Mank, Executive Order No. 12898, supra note 25, at 106.

63. The EPA EAB has stated that:

If a permit applicant meets the requirements of RCRA and its implementing regulations, the Agency must issue the permit, regardless of the racial or socio-economic composition of the surrounding community and regardless of the economic effect of the facility on the surrounding community.

In re Chemical Waste Mgmt. of Ind., Inc., 6 E.A.D. 66, 73, ADMIN. MAT. 40392, 40394 (EPA EAB June 29, 1995) (emphasis in original); Mank, Executive Order No. 12898, supra note 25, at 126.

64. The omnibus clause of the Resource Conservation and Recovery Act (RCRA) authorizes the Agency to impose "such terms and conditions as the Administrator (or the State) determines necessary to protect human health and the environment." 42 U.S.C. § 6925(c)(3), ELR STAT. RCRA § 3005(c)(3). In light of the order, the Agency's omnibus authority included the protection of low-income and minority subpopulations. See In re Chemical Waste, 6 E.A.D. at 75, ADMIN. MAT. at 40394 (stating that "the omnibus clause would require the Region to include in the permit whatever terms and conditions are necessary to prevent such impacts. This would be true even without a finding of disparate impact"); Mank, Executive Order No. 12898, supra note 25, at 126-27; see also In re Envotech, 6 E.A.D. 260, 281-82, ADMIN. MAT. 40454, 40460 (EPA EAB Feb. 15, 1996) (holding EPA has authority to consider health impacts on minorities pursuant to omnibus clause in the Safe Drinking Water Act's UIC regulations); In re EcoElectrica, L.P., 7 E.A.D. 56, 67 n.15, ADMIN. MAT. 40632, 40635 n.15 (EPA EAB Apr. 8, 1997) (holding EPA has general discretionary authority under the CAA's prevention of significant deterioration (PSD) program to consider environmental justice impacts and stating that "although EPA has not issued formal rules or detailed written guidance on environmental justice with respect to PSD permitting . . . the absence of such guidance does not prevent the Agency from addressing environmental justice issues"); Sheila R. Foster, Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking, 30 ELR 10992, 10995 (Nov. 2000) (discussing EPA's authority under Executive Order No. 12898 to review permits for environmental justice problems); Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice Into EPA Permitting Authority, 26 ECOLOGY L.Q. 617, 656-77 (1999) (discussing several EPA EAB decisions applying Executive Order No. 12898).

65. See Gaba, supra note 61, at 11075 (arguing there are limits on the authority of EPA under Executive Order No. 12898 and even statutory omnibus clauses to reject a permit that complies with legal standards but may disproportionately impact minorities).

66. See Denis Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898 on Environmental Justice, 30 ELR 11133 (Oct. 2001).

67. 42 U.S.C. § 2000d-4a (overruling Grove City College v. Bell, 465 U.S. 555 (1984)); Mank, Title VI, supra note 19, at 30.

68. Exec. Order No. 12898, supra note 25, § 6-609, ADMIN. MAT. at 45076; Sur Contra la Contaminacion v. EPA, 202 F.3d 443, 449-50, 30 ELR 20358, 20360 (1st Cir. 2000). Courts generally do not allow judicial review of administrative actions that are allegedly inconsistent with an Executive Order because the order fails to provide explicitly or impliedly for a cause of action, although some commentators have argued that courts should do so in some circumstances. See, e.g., Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 235-36 (8th Cir. 1975) (rejecting challenge to U.S. Department of Agriculture regulations under Executive Order No. 11281 because order did not have force and effect of law and the president did not intend to create a private cause of action); Peter Raven-Hansen, Making Agencies Follow Orders: Judicial Review of Agency Violations of Executive Order No. 12291, 1983 DUKE L.J. 285, 287 n.7 & passim (citing numerous cases rejecting judicial review of agency compliance with Executive Orders, but arguing for judicial enforcement of Executive Order No. 12291); Steven Ostrow, Enforcing Executive Orders: Judicial Review of Agency Action Under the Administrative Procedure Act, 55 GEO. WASH. L. REV. 659, 661 n.12 (1987) (citing numerous cases rejecting judicial review of agency compliance with Executive Orders, but arguing for judicial enforcement of Executive Orders pursuant to the Administrative Procedure Act).

69. See Cannon v. University of Chicago, 441 U.S. 677, 715 (1979); Mank, Title VI, supra note 19, at 29.

70. See Melva J. Hayden, A Prospective on the Environmental Protection Agency's Title VI and Environmental Justice Programs, 10 FORDHAM ENVTL. L.J. 359, 364-65 (1999).

71. See Mank, Executive Order No. 12898, supra note 25, at 104-07 (discussing Executive Order No. 12898's impact on federal agencies), 126-29 (discussing review of federal permits under Executive Order No. 12898 by EPA's EAB).

72. See Alexander v. Sandoval, 121 S. Ct. 1511, 1516-18 (2001) ("We do not doubt that regulations applying § 601's ban on intentional discrimination are covered by the cause of action to enforce that Section.").

73. See id. at 1517.

74. Justice Scalia stated:

We must assume for purposes of deciding this case that regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601. Though no opinion of this Court has held that, five Justices in Guardians voiced that view of the law at least as alternative grounds for their decisions . . . . These statements are in considerable tension with the rule of Bakke and Guardians that § 601 forbids only intentional discrimination . . . but petitioners have not challenged the regulations here.

See id. at 1517; see also id. at 1519.

76. See ENVIRONMENTAL COUNCIL OF STATES (ECOS), COMMENTS ON ENVIRONMENTAL JUSTICE GUIDANCE 3-4 (as approved by the Cross Media Committee on Aug. 14, 2000); Mank, Guidances, supra note 5, at 11145-46, 11151, 11167-68 (discussing ECOS' criticisms of the Draft Title VI Guidance) [hereinafter ECOS, COMMENTS ON ENVIRONMENTAL JUSTICE].

77. See Guidances, supra note 5, at 39680; Mank, Guidances, supra note 5, at 11167.

78. See Guidances, supra note 5, at 39680; Mank, Guidances, supra note 5, at 11167.

79. ECOS, COMMENTS ON ENVIRONMENTAL JUSTICE, supra note 76, at 3-4 (criticizing EPA's Draft Title VI Guidance for not providing clear standard that compliance with existing laws is sufficient for compliance with Title VI); Mank, Guidances, supra note 5, at 11145-46, 11151, 11167-68.

80. See Guidances, supra note 5, at 39680; Mank, Guidances, supra note 5, at 11167 (emphasis added).

81. See Guidances, supra note 5, at 39681; Mank, Guidances, supra note 5, at 11167-68.

82. See Guidances, supra note 5, at 39681; Mank, Guidances, supra note 5, at 11167-68.

83. See Guidances, supra note 5, at 39681 n. 130; Mank, Guidances, supra note 5, at 11168.

84. See ECOS, COMMENTS ON ENVIRONMENTAL JUSTICE, supra note 58, at 3-4; Mank, Guidances, supra note 5, at 11145-46, 11151, 11167-68.

86. Id. at 453-58.

87. Id. at 454.

88. Id.

89. Id. at 466.

90. Id. at 466.

91. Id. at 459.

92. Id. at 458.

93. Id. at 459.

94. Id.

95. Id. at 460.

96. Id. at 461.

97. Id. at 455.

98. Id. at 456.

99. Id.

100. Id. at 469.

101. Id.

102. Id. at 470.

103. Id. at 452.

104. Id. at 450, 452, 468-69.

105. Id. at 450.

106. Id. at 450, 454 (discussing impact of emissions from 77,000 truck trips), 457 (discussing the CAA's regulations for truck emissions).

107. Id. at 475-80.

108. Id. at 478-79.

109. Id. at 476.

110. Id. at 477 (quoting 65 Fed. Reg. 39650, 39680) (emphasis added).

111. Id. at 479-80 (quoting U.S. EPA, Select Steel Decision and Investigative Report, EPA File No. 5R-98-R5 (Oct. 30, 1998), at 28 (emphasis added), available at http://www.epa.gov/ocrpage 1/docs/ssdec_ir.pdf).

112. Id. at 489 (quoting 65 Fed. Reg. 39650, 39678).

113. Id. at 479 (quoting U.S. EPA, Select Steel Decision and Investigative Report, supra note 111, at 28 (emphasis added)).

114. Id. at 488.

115. Id.

116. Id. at 479 (quoting U.S. EPA, Select Steel Decision and Investigative Report, supra note 111, at 13-14).

117. Id. at 487-88.

118. Id. at 480.

119. Id. at 480 (citing Administrative Order No. 1998-15, at http://www.state.nj.us/dep/equity/ao98-15.htm (last visited Mar. 27, 2001) and Environmental Equity Defined, at http:www.state.nj.us/dep/equity/define.htm (last visited Mar. 27, 2001)).

120. Id. at 480-81 (citing Administrative Order No. 2000-01, at http://www.state.nj.us/dep/equity/ao00-01.htm (last visited Mar. 27, 2001)). Judge Orlofsky summarized these strategies as follows:

The NJDEP committed to: (1) work with the Advisory Council and permit applicants to identify mechanisms for community notification regarding application for new, modified, or renewal permits, as early as possible in the permit review process; (2) develop guidance for permit applicants for the administration of an effective environmental equity community outreach process; (3) establish a mechanism for community outreach at the earliest possible stage of the permit application process; (4) utilize technical screening tools such as the GIS and TRI to identify potential environmental equity issues at the earliest feasible stage of the permitting process; (5) participate in discussions among permit applicants and local community stakeholders and attempt, when possible, to include in permits conditions that the permit applicants and community stakeholders have agreed upon; (6) facilitate ADR between permit applicants and stakeholders in the case of disputes; (7) work with permit applicants to facilitate accessibility, understanding, and transfer of technical and scientific data to local communities; and (8) provide ongoing environmental equity training to appropriate NJDEP managers and staff.

Id. at 480-81 (citing Administrative Order No. 2000-01, supra).

121. Id. at 481 (citing Environmental Equity in New Jersey, The Policy and Process, at http://www.state.nj.us/dep/equity/policy.htm (last visited Mar. 27, 2001)). On February 4, 2002, the NJDEP proposed new rules to expand community participation in permit decisions to advance environmental justice goals. See generally Expanded Community Participation Process for Environmental Equity, Proposed Rules N.J.A.C. §§ 7:1F-1, 7:1F-2, 34 N.J. Reg. 665(a) (Feb. 4, 2002), available at http:www.state.nj.us/dep/equity/eerule.pdf; infra notes 394-97 and accompanying text.

123. Id.

124. Guidances, supra note 5, at 39678; Mank, Guidances, supra note 5, at 11165.

125. Guidances, supra note 5, at 39650, 39651-52, 39655, 39656-64; Mank, Guidances, supra note 5, at 11151-56.

126. See generally Mank, Recipient Agencies, supra note 32, at 799-800 (arguing discriminatory siting practice increasing likelihood of adverse disparate impacts to minority groups can establish Title VI violation).

128. See id. at 481.

129. See Villanueva v. Carere, 85 F.3d 481, 486 (10th Cir. 1996); New York Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); City of Chicago v. Lindley, 66 F.3d 819, 828-29 (7th Cir. 1995); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406-07 (11th Cir. 1993); Larry P. v. Riles, 793 F.2d 969, 982 n.9 (9th Cir. 1984).

130. See Mank, Recipient Agencies, supra note 32, at 799-800 (discussing standard for prima facie case under Titles VI and VII); see also Equal Employment Opportunity Comm'n v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995) (discussing standard for prima facie case under Title VII).

131. See, e.g., New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69-72, 30 ELR 20703, 20704 (2d Cir. 2000) (stating "the plaintiffs did not, in our view, submit adequate proof of causation to show a likelihood of success on the merits of their disparate impact claim"); Powell v. Ridge, 189 F.3d 387, 393-94 (3d Cir. 1999) (stating plaintiff's Title VI prima facie case must prove discriminatory impact and demonstrate causal link between recipient's practice and disparate impact), cert. denied, 528 U.S. 1046 (1999); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406-07 (11th Cir. 1993) (discussing standard under Title VI for proving causation); see generally Mank, Recipient Agencies, supra note 32, at 799-801 (discussing standard for prima facie case under Titles VI and VII).

132. See Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).

135. Id. at 495.

136. Id. at 484-91.

137. Id. at 485.

138. Id.

139. Id.

140. Id.

141. Id.

142. See 42 U.S.C. § 7521, ELR STAT. CAA § 202.

144. Id. at 489 (citing Guidances, supra note 5, at 39678).

145. Id. at 490.

146. Id.

147. See New York Urban League, Inc. v. New York, 71 F.3d 1031, 1038 (2d Cir. 1995); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988) (explaining that to establish a prima facie case of disparate impact discrimination in a Title VII case, "plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the [harm of which the plaintiff complains]. Our formulations, which have never been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation."); see generally Bradford C. Mank, Proving an Environment Justice Case: Determining an Appropriate Comparison Population, VA. ENVTL. L.J. (forthcoming 2002).

150. Id. at 493.

151. Id. at 492. Dr. Coursey also argued that Dr. Gelobter's findings contained numerous mathematical errors. Id.

152. Id. at 493.

153. Id.

154. Id. (citing Guidances, supra note 5, at 39659-61, 39681-39682 and New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 70-71, 30 ELR 20703, 20705 (2d Cir. 2000) (discussing criteria for measuring disparate impact in Title VI case)).

155. See, e.g., New York City, 214 F.3d at 69, 30 ELR at 20704-05 ("In order to establish a prima facie case of adverse disparate impact, [plaintiffs] had to allege a causal connection between a facially neutral policy and a disproportionate and adverse impact on minorities."); Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999) (discussing standard under Title VI for proving causation); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406-07 (11th Cir. 1993) (same); Peter E. Mahoney, The End(s) of Disparate Impact: Doctrinal Reconstruction, Fair Housing and Lending Law, and the Antidiscrimination Principle, 47 EMORY L.J. 409, 423, 460-61 (1998); Mank, Recipient Agencies, supra note 32, at 799-801 (same).

156. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988) (plurality opinion); Mahoney, supra note 155, at 423, 462-63; Mank, Recipient Agencies, supra note 32, at 799-801.

157. See, e.g., Elston, 997 F.2d at 1407 (discussing standard under Title VI for proving causation); Larry P. v. Riles, 793 F.2d 969, 982 n.9 (9th Cir. 1984) (prima facie case based on evidence that percentage of African American children in "educable mentally retarded" classes was higher than their percentage in school population as a whole); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) (prima facie case based on evidence that racial composition of classrooms differs from random distribution); Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984) (finding prima facie case where people of color represented between 50% and 90% of neighborhoods in which proposed highway would be located); Mank, Recipient Agencies, supra note 32, at 799-801.

159. Id.

160. Id. (quoting Brief of Intervenor-Appellant, St. Lawrence Cement Co., L.L.C. at 44, South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, (3d Cir. June 26, 2001)) [hereinafter SLC Brief].

162. Id. (quoting SLC Brief, supra note 160, at 46).

163. Id. at 494-95.

164. Id. at 495 (citing 40 C.F.R. § 7.1 et seq.)

165. Id. at 495.

166. Id.

167. See Association of Mexican-Am. Educators v. California, 231 F.3d 572, 584 & n.7 (9th Cir. 2000) (stating burden is on defendant once plaintiff in Title VI case establishes prima facie case); Sandoval v. Hagan, 197 F.3d 484, 507 (11th Cir. 1999) (stating if plaintiff establishes prima facie case then defendant has burden of establishing substantial legitimate justification, citing Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993)), rev'd on other grounds, Alexander v. Sandoval, 121 S. Ct. 1511 (2001); Elston, 997 F.2d at 1407 n.14; Mank, Recipient Agencies, supra note 32, at 801-02.

168. The 1991 Act amended Title VII to place the burden of persuasion on the defendant to "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity," unless the defendant has rebutted the plaintiff's prima case by "demonstrating that a specific employment practice does not cause the disparate impact." See Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75 (codified at 42 U.S.C. § 2000e-2(k)(1)(A)(i), (B)(ii)); Bradley v. Pizzaco of Neb., 7 F.3d 795, 797-99 (8th Cir. 1993) (Title VII case holding 1991 Act places burden of persuasion regarding business necessity on defendant); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 & n.5 (11th Cir. 1993) (same); Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1526 n.34 (5th Cir. 1993) (same); Elston 997 F.2d at 1407 n.14; Mahoney, supra note 155, at 454-55. The 1991 Act defines "demonstrate" to require a defendant to "meet the burdens of production and persuasion." 42 U.S.C. § 2000e(m); see Mahoney, supra note 155, at 454-55; Mank, Recipient Agencies, supra note 32, at 802 n.76.

171. Id. (quoting SLC Brief, supra note 160, at 47).

172. Id. at 496.

173. Id. (quoting Guidances, supra note 5, at 39683).

174. Id. at 497 (quoting Guidances, supra note 5, at 39683).

175. Id. The first example might include a water treatment facility that provides overall health benefits to a community and is not applicable to the SLC facility. Id.

176. Id. (citing Guidances, supra note 5, at 39650, 39683).

177. See id. at 496-97.

178. Id. at 497.

179. Id.

180. See Mank, Guidances, supra note 5, at 11171-72 (discussing Draft Revised Investigation Guidance's mitigation and less discriminatory alternatives provisions).

181. See Guidances, supra note 5, at 39683 (stating "practicable mitigation measures associated with the permitting action could be considered as less discriminatory alternatives, including, in some cases, modifying permit conditions to lessen or eliminate the demonstrated adverse disparate impacts"); Mank, Guidances, supra note 5, at 11171-72 (discussing Draft Revised Investigation Guidance's mitigation and less discriminatory alternatives provisions).

182. See Guidances, supra note 5, at 39654, 39683; see generally Mank, Recipient Agencies, supra note 32, at 808-09.

183. See Guidances, supra note 5, at 39683 n.150 (emphasis added) (citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1413 (11th Cir. 1993).

185. Id. at 497-98.

186. Id. at 498.

187. Id.

188. Id. at 464-65, 498 (discussing National Ambient Air Quality Standards for Particulate Matter; Final Rule, 62 Fed. Reg. 38652 (July 18, 1997) (to be codified at 40 C.F.R. § 50)).

189. Id. at 465, 498 (discussing 62 Fed. Reg. at 38656). EPA specifically noted that "sensitive subpopulations [ [ appear to be at greater risk to such effects, specifically individuals with respiratory disease and cardiovascular disease and the elderly (premature mortality and hospitalization), children (increased respiratory symptoms and decreased lung function), and asthmatic children and adults (aggravation of symptoms)." Id.

190. Id. at 498.

191. Id.

192. Id. at 499.

193. Id. at 466.

194. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), rev'd & aff'd on other grounds, Whitman v. American Trucking Ass'n, 531 U.S. 457, 31 ELR 20512 (2001).

197. Id.

198. Id. at 500.

199. Id. at 502-05.

200. Id. at 501-02.

201. Id. at 505.

202. Id. at 509.

203. Id. at 511.

204. Id.

205. Id. The plaintiffs also contended that they were entitled to keep the preliminary injunction in effect because they could prove a case of intentional discrimination under § 601, but the court did not pursue that contention and instead focused on the plaintiffs' § 1983 argument. Id.

208. Id. at 511-12, 31 ELR at 20676-77.

209. Id. at 512, 31 ELR at 20677.

210. Id.

211. Id.; Foman v. Davis, 371 U.S. 178 (1962); Fed. R. Civ. P. 15(a).

213. Id.

214. Id. at 513, 31 ELR at 20677.

215. Id. at 513-19, 31 ELR at 20677-80.

216. Id. at 547-49, 31 ELR at 20690-91.

217. Id. at 549, 31 ELR at 20691.

218. Id. at 517, 31 ELR at 20678-79 (emphasis added).

219. Id.

220. Id. at 514, 31 ELR at 20678.

222. Id. at 518, 31 ELR at 20679.

223. Id. (citing Alexander v. Sandoval, 121 S. Ct. 1511, 1517 (2001)).

224. Id.

225. 189 F.3d 387 (3d Cir. 1999).

226. Id. at 403; Mank, supra note 11, at 321, 325, 369-72, 376-77 (discussing Powell's holding that Title VI's § 602 regulations may be enforced through a § 1983 suit).

229. 42 U.S.C. § 1983 (emphasis added).

230. Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citation omitted) (emphasis in original); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 332.

231. 520 U.S. 329 (1997).

232. Id. at 340-41 (citations omitted); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 332.

233. Blessing, 520 U.S. at 346; Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 520 (1990) (courts "do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right") (citations omitted); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 334.

234. 453 U.S. 1, 11 ELR 20684 (1981).

235. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989) (citations omitted); National Sea Clammers, 453 U.S. at 20, 11 ELR at 20688; Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 334-36.

236. 512 U.S. 107 (1994); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 334.

237. Livadas, 512 U.S. at 132.

239. 422 U.S. 66 (1975).

240. Suter v. Artist M, 503 U.S. 347, 363 (1992) (stating that the Cort decision places the burden on the plaintiff to demonstrate Congress' intent to make a private right of action available); Touche Ross & Co. v. Reddington, 442 U.S. 560, 575 (1979); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 356-57 n.268 (citing Supreme Court cases making congressional intent the central inquiry in deciding whether a private right of action exists).

241. See Blessing, 520 U.S. at 340-41 (citations omitted); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 332.

250. Alexander v. Sandoval, 121 S. Ct. 1511, 1526 (2001) (Stevens, J., dissenting).

252. 463 U.S. 582 (1983).

253. Guardians, 463 U.S. at 593 (White, J. concurring); id. at 623 (Marshall, J. dissenting); and id. at 644-45 (Stevens, Brennan, and Blackmun, JJ., dissenting).

254. 469 U.S. 287 (1985).

255. Id. at 293.

256. Id. at 293-94.

258. Id. at 536, 31 ELR at 20686.

259. 40 C.F.R. § 7.30 (emphasis added).

261. Id. at 536-39, 31 ELR at 20686-87.

262. Blessing, 520 U.S. at 341.

264. See, e.g., Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999), cert. denied, 528 U.S. 1046 (1999); New York Urban League v. New York, 71 F.3d 1031 (2d Cir. 1995); Ferguson v. Charleston, 186 F.3d 469 (4th Cir. 1999), rev'd on other grounds, 121 S. Ct. 1281 (2001); David K. v. Lane, 839 F.2d 1265, 1274 (7th Cir. 1988); City of Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984); Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996); Elston v. Talledaga Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993).

267. Blessing, 520 U.S. at 341.

269. Id. at 542, 31 ELR at 20688.

270. Id. at 543-46, 31 ELR at 20688-90.

271. Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999), cert. denied, 528 U.S. 1046 (1999).

272. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 11 ELR 20684, 20688 (1981); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 3.

274. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989) (citations omitted); National Sea Clammers, 453 U.S. at 20, 11 ELR at 20688; Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 334-36.

275. See 40 C.F.R. § 7.90.

276. See id. § 7.105 et seq.

277. See 42 U.S.C. § 602.

279. Id.

280. See supra note 274 and accompanying text.

282. Id. at 546, 31 ELR at 20690.

283. Id. at 518-24, 546, 31 ELR at 20679-81, 20690; Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 353-59.

285. Id. at 546, 31 ELR at 20690 (quoting Alexander v. Sandoval, 121 S. Ct. 1511, 1521 (2001)).

286. Id. at 546, 31 ELR at 20690 (quoting Sandoval, 121 S. Ct. at 1522).

287. Id. at 546, 31 ELR at 20690 (distinguishing Sandoval, 121 S. Ct. at 1522).

288. Id.

289. Id. at 547, 31 ELR at 20690.

290. See 42 U.S.C. § 1983; Powell v. Ridge, 189 F.3d 387, 400 (3d Cir. 1999), cert. denied, 528 U.S. 1046 (1999); Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 336.

292. 491 U.S. 58 (1989).

293. See Will, 491 U.S. at 71 & n. 10; Powell, 189 F.3d at 400; Doe, 131 F.3d at 839.

294. 209 U.S. 123 (1908).

298. Id. at 547 (citing Green v. Mansour, 474 U.S. 64, 72 (1985) (stating "declaratory relief may be available even though an injunction is not," and "the propriety of issuing a declaratory judgment may depend upon equitable considerations") (citations omitted).

299. Id. at 547-48, 31 ELR at 20690.

300. SLC Brief, supra note 160, at 5.

301. Id.

302. South Camden, Nos. 01-2224, -2296, slip op. at 13 (3d Cir. Dec. 17, 2001). On June 6, 2001, the NJDEP and Commissioner Shinn applied to the Third Circuit for a stay of the remand, but the court denied the motion on June 11, 2001. Id.

303. Id.

304. See Order, supra note 15; Duffy, supra note 15, at 3; Sturges, supra note 15, at A-4.

305. See Order, supra note 15, at 2 (citing Blessing v. Freestone, 520 U.S. 337, 340 (1997)).

306. See id. at 2.

307. Id. at 2 (quoting Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir. 1994)) (insertion in Order).

308. Id.

309. Id.

310. Id. at 2-3.

311. Id. at 3.

312. Id.

313. Id.

314. See Marcia Coyle, Backyard Blues, NAT'L L.J., Oct. 15, 2001, at A10, A13.

315. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, Nos. 01-2224/01-2296 (3d Cir. Aug. 10, 2001).

316. See Letter from Judge Stephen M. Orlofsky, U.S. District Court, District of New Jersey, to Judges McKee, Ambro and Greenberg, No. 01-2224/01-2296, South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, U.S. Court of Appeals for the Third Circuit 2 (Aug. 13, 2001).

317. See South Camden, 274 F.3d 771, 774 (3d Cir. 2001).

318. See South Camden, 274 F.3d at 774, 790-91.

319. See Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 346-53.

320. See generally South Camden, 274 F.3d at 781-88.

321. See id. at 788-91.

322. 479 U.S. 418 (1987).

323. See id. at 431-32.

324. See Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 342-46.

325. See South Camden, 274 F.3d at 781-83.

326. See id. at 783 (citing Wright, 479 U.S. at 430 n.11 & 431).

327. See id.

328. See id.

329. 750 F.2d 250 (3d Cir. 1984).

330. See id. at 259.

331. See South Camden, 274 F.3d at 783-84.

332. See 885 F.2d 11, 18 (3d Cir. 1989).

333. See South Camden, 274 F.2d at 784.

334. 189 F.3d at 387, cert. denied, 528 U.S. at 1046.

335. See id. at 397-99.

336. See id. at 400-03.

337. See South Camden, 274 F.3d at 784-85 & n.9.

338. See id. at 785-86 (discussing Buckley v. City of Redding, 66 F.3d 188 (9th Cir. 1995) and citing Powell, 189 F.3d at 401; Farley v. Philadelphia Hous. Auth., 102 F.3d 697, 699 (3d Cir. 1996) ("[The] cause of action arises strictly under [the statutory provision.] Regulation § 966.57(b) merely interprets that section."); Doe v. District of Columbia, 93 F.3d 861, 867 (D.C. Cir. 1996) (analyzing both the statute and its accompanying regulations in determining whether an enforceable § 1983 right existed); Tony L. v. Childers, 71 F.3d 1182, 1189 (6th Cir. 1995) (same); City of Chicago v. Lindley, 66 F.3d 819, 827 (7th Cir. 1995) (same); Martinez v. Wilson, 32 F.3d 1415, 1421 & n.4 (9th Cir. 1994) (same); Howe v. Ellenbecker, 8 F.3d 1258, 1263 (8th Cir. 1993) (same), overruled by Blessing v. Freestone, 520 U.S. 337, 348 (1997); Albiston v. Maine Comm'r of Human Servs., 7 F.3d 258, 265 (1st Cir. 1993) (same), overruled by Blessing, 520 U.S. at 348; Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1313-14 (2d Cir. 1991) (same); Samuels v. District of Columbia, 770 F.2d 184, 195 (D.C. Cir. 1985) (same)).

339. See South Camden, at 785-88 (discussing Smith v. Kirk, 821 F.2d 980, 982 (4th Cir. 1987) and Harris v. James, 127 F.3d 993, 1007-08 (11th Cir. 1997)).

340. See 33 F.3d 538, 551 (6th Cir. 1994) (holding that regulations promulgated by the Federal Communications Commission created a right that plaintiff could enforce via § 1983 suit against the city of Dearborn).

341. See South Camden, 274 F.3d at 787-88.

342. See id. at 788-91.

343. See id. at 788-91 (discussing Alexander v. Sandoval, 121 S. Ct. 1511, 1516, 1520-21 (2001)).

344. See South Camden, 274 F.3d at 789-90 & n.12.

345. See id. at 789-91.

346. See id. at 791.

347. See id.

348. See id. (McKee, J., dissenting).

349. 189 F.3d at 387, cert. denied, 528 U.S. at 1046.

350. See id. at 397-99.

351. See id. at 400-03.

352. See South Camden, 274 F.3d at 792-95 (McKee, J., dissenting).

353. See id. at 795-97.

354. See id. at 796-98.

355. See id. at 797-98.

356. See id. at 798.

357. See id.

358. See id. & n.6.

359. See id. at 799.

360. See id.

361. See Sur Petition for Rehearing, South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, Nos. 01-2224/01-2296 (3d Cir. Jan. 15, 2002). Additionally, Senior Circuit Judge Greenberg voted against rehearing the panel decision, but could not vote on the rehearing en banc because senior judges are ineligible to vote on that issue. Id.

362. Id.

363. See Alexander v. Sandoval, 121 S. Ct. 1511, 1517 (2001); supra notes 74-75 and accompanying text.

364. See Guidances, supra note 5, at 39680-81; Mank, Guidances, supra note 5, at 11167-68.

365. See Guidances, supra note 5, at 39678-81; Mank, Guidances, supra note 5, at 11165-68.

366. See supra notes 138-39, 153-66, and accompanying text; see generally Bradford C. Mank, Proving an Environment Justice Case, supra note 147.

367. See supra notes 173-76 and accompanying text.

368. See supra notes 180-81 and accompanying text.

369. The SLC, the permit applicant, did argue that the benefits of the plant outweighed any health risks. See supra notes 171, 177, and accompanying text.

370. 121 S. Ct. 1511 (2001).

371. Justice Stevens stated:

To the extent that the majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. section 1983 in framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference section 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama's English-only policy in a complaint that invokes section 1983 even after today's decision.

Alexander v. Sandoval, 121 S. Ct. 1511, 1527 (2001) (Stevens, J., dissenting); see generally Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 348-53, 367-82 (arguing that Title VI disparate impact regulations may be enforced through Title VI).

372. Sandoval, 121 S. Ct. at 1522.

374. Id. at 549, 31 ELR 20691.

375. See Mank, Using Section 1983 to Enforce Title VI's § 602 Regulations, supra note 11, at 348-53, 367-82 (arguing that Title VI disparate impact regulations may be enforced through Title VI).

376. See id. at 353-59.

377. See id. at 332-34, 353-59.

378. See South Camden, 274 F.3d 771, 779-83 (3d Cir. 2001).

379. See id. at 785-88.

380. See id. at 787-88.

381. See id. at 783-85.

382. See id. at 783-85 & n.9, 788-91.

383. See id. at 790.

384. See id. at 788-91 & n.12.

385. See id. at 774.

386. See id. at 788-91 & n.12.

387. See id.

388. See id. at 791, 796-99 (McKee, J., dissenting).

389. See id. at 795-97.

390. See id. at 799.

391. On January 11, 2002, the Supreme Court granted certiorari in Gonzaga University v. Doe to review the following question:

May a student sue a private university for damages under 42 U.S.C. § 1983 to enforce provisions of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, which disqualify from federal funding educational institutions that have a policy or practice of permitting education records to be released to unauthorized persons?

See Gonzaga Univ. v. Doe, 143 Wash. 2d 687, 707-09, 24 P.3d 390, 400-01 (2001), cert. granted, 122 S. Ct. 865 (2002); Marcia Coyle, N.J. Group Loses Appeal, Turns Eyes to High Court, NAT'L L.J., Jan. 28, 2002, at A8 (discussing Supreme Court's decision to decide § 1983 issue in Gonzaga and whether plaintiffs in South Camden will petition Court for certiorari).

393. John Stanton, High Court Ruling Deals Blow to Environmental Justice Cases, ENVTL. POL'Y ALERT, May 2, 2001, at 42-43.

394. See generally Expanded Community Participation Process for Environmental Equity, Proposed Rules N.J.A.C. §§ 7:1F-1 (defining major facilities whose applications for a new permit, renewed permit or major modification of an existing permit are subject to Expanded Community Participation Process for Environmental Equity), 7:1F-2 (requiring pre-application meeting with NJDEP, specifying information required from applicant, describing environmental equity screening process, and describing minimum requirements of Community Outreach and Involvement Plan), supra note 121.

395. See generally N.J.A.C. §§ 7:2F-2.5 (Preparation of Community Outreach and Involvement Plan), 7:2F-2.7 (Implementation of Community Outreach and Involvement Plan), supra note 121.

396. See generally N.J.A.C. § 7:2F-2.9 (Alternative Dispute Resolution), supra note 121.

397. See NJDEP, Notice of Rule Proposal, Proposed New Rules, N.J.A.C. §§ 7:1F-1, 7:1F-2, Expanded Community Participation Process for Environmental Equity, 34 N.J. Reg. 665(a) (Feb. 4, 2002), available at http:www.state.nj.us/dep/rules/notices/020402b.html.

398. See Peyton Sturges & Steve Cook, Environmental Justice: Request for Rehearing in New Jersey Case Rejected; State Fines Firm Targeted in Suit, 33 Env't Rep. (BNA) 196 (Jan. 25, 2002) (reporting In re St. Lawrence Cement Inc., N.J. DEP, No. PEAD1001-515188 (Jan. 11, 2002)); Will Van Sant, Disputed Cement Plant Fined for Emissions Violations, PHILADELPHIA INQUIRER, Jan. 17, 2002, available at 2002 WL 4557751.

399. See Sturges & Cook, supra note 398, at 196; Van Sant, supra note 398.

400. See id.

32 ELR 10454 | Environmental Law Reporter | copyright © 2002 | All rights reserved