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In a closely watched “environmental racism” case, a federal judge in New Jersey has continued his injunction that blocks the opening of an already built $50 million cement plant in Camden, N.J. — despite a recent U.S. Supreme Court decision that seemed to invalidate the plaintiffs’ central theory in the case. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, U.S. District Judge Stephen M. Orlofsky found that while the Supreme Court has held there is no private cause of action to sue under Title VI for enforcement of disparate impact regulations, the plaintiffs can achieve the same results by suing under Section 1983. If Orlofsky’s reasoning is adopted by other judges, it promises to undo the potential harsh effects of the Supreme Court’s 5-4 decision in Alexander v. Sandoval. Attorney Michael Churchill of the Public Interest Law Center of Philadelphia, who represents the plaintiffs in South Camden Citizens, said Orlofsky’s decision is “enormously important” for civil rights litigators. “This ruling shows that Sandoval did not sound the death knell to these cases — as some people said it did — but that Section 1983 is a valid mechanism for continue to sue for the enforcement of disparate impact regulations,” Churchill said in an interview on Friday. The Sandoval case involved a challenge to Alabama’s adoption of a constitutional amendment that makes English its official language. But the justices focused only on whether private citizens can use Title VI to seek enforcement of federal agency regulations that prohibit recipients of federal funds from acting in a way that has a racially disparate impact. Dividing along ideological lines, the high court rejected the argument that such regulations contain “rights-creating language.” “It is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice, but not the sorcerer himself,” Justice Antonin Scalia wrote. In dissent, Justice John Paul Stevens complained that “just about every Court of Appeals has either explicitly or implicitly held that a private right of action exists to enforce all of the regulations issued pursuant to Title VI, including the disparate-impact regulations.” The ruling immediately cast doubt on the validity of Orlofsky’s decision last month in South Camden Citizens in which he found that New Jersey environmental officials who granted permits to the St. Lawrence Cement Co. (SLC) never considered the impact of the new plant on a predominantly minority neighborhood on Camden’s waterfront that already suffers from the effects of a sewage treatment plant, a trash-to-steam plant and numerous toxic waste sites. Orlofsky had granted the plaintiffs’ request for a preliminary injunction and vacated the NJDEP’s issuance of SLC’s air permits. In an order attached to his April 20 opinion, Orlofsky remanded this case to the NJDEP “to make appropriate findings consistent with this opinion.” The Camden groups were suing under Title VI to seek enforcement of disparate impact regulations promulgated by the U.S. Environmental Protection Agency. Soon after the Sandoval decision was handed down, Orlofsky held a telephone conference with the lawyers in the South Camden Citizens case and ordered them to file briefs on the impact of the high court’s ruling. PILCOP attorney Jerome Balter filed a brief that asked Orlofsky to reaffirm his injunction under one of the plaintiffs’ other theories — intentional discrimination or Section 1983. In the dissent in Sandoval, he said, Stevens noted that Section 1983 can be used to enforce a disparate impact regulation. Now Judge Orlofsky has issued a 96-page opinion in which he adopted Balter’s reasoning. ‘SANDOVAL’ LIMITED “Upon a careful review of Justice Scalia’s majority opinion in Sandoval, it is clear that the impact of the Supreme Court’s holding in Sandoval on this case is limited to its holding that Section 602 of Title VI does not create an implied private cause of action to enforce agency regulations promulgated under Section 602 which prohibit disparate impact discrimination,” Orlofsky wrote. Scalia, he said, “repeatedly emphasized” that the petition for certiorari in Sandoval presented only the question of whether Section 602 itself creates what Scalia termed a “freestanding” or independent, private right of action. Orlofsky also found that the high court limited the question decided in Sandoval to determining “whether Congress intended to create a private remedy to enforce Section 602, while assuming that in fact Congress intended that statute, to create a substantive right.” As a result, Orlofsky concluded that “it is clear … that the Sandoval opinion does not, as NJDEP and SLC argue, prevent plaintiffs in this case from pursuing any cause of action involving Section 602. More specifically, Sandoval does not foreclose plaintiffs from seeking to vindicate the rights they allege Section 602 and its implementing regulations create through Section 1983.” Orlofsky said both NJDEP and SLC were urging him to interpret Sandoval “in a way which goes well beyond the narrow holding in that case.” Their “misunderstanding” of Sandoval, he said, “lies in their conflation of rights with remedies in their analysis of the Supreme Court’s holding.” NJDEP and SLC argued that in Sandoval, the high court held that individual plaintiffs are entirely foreclosed from bringing any cause of action based upon alleged violations of the disparate impact implementing regulations promulgated under Section 602. But Orlofsky found that both defendants’ arguments were flawed and that SLC was urging him to follow dicta in the decision. “This court must be guided by Justice Scalia’s admonition in Sandoval, that courts are bound by holdings, not language. That admonition prohibits this court from reading the dicta cited by SLC to be part of the holding in Sandoval,” he wrote. Orlofsky also found that case law from the 3rd U.S. Circuit Court of Appeals supports his holding that Sandoval does not foreclose a plaintiff from bringing a claim for disparate impact discrimination, in violation of agency regulations, under Section 1983. In Powell v. Ridge, Orlofsky said, the 3rd Circuit held that plaintiffs seeking to enforce the disparate impact regulations promulgated under Section 602 “may do so by bringing suit under Section 602 itself and/or by bringing suit under Section 1983.” Although a portion of the Powell decision has now been overturned, Orlofsky found that its holding on the question of the right to sue under Section 1983 is still good law. “While it is clear that the 3rd Circuit’s holding that Section 602 itself contained an implied private right of action has been overruled by Sandoval, it is equally clear that Sandoval did not address, nor does it affect, plaintiffs’ right to bring a claim for disparate impact discrimination in violation of the Section 602 regulations under Section 1983,” Orlofsky wrote. “The 3rd Circuit’s analysis of Section 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,” he wrote. Last week’s ruling means that the plaintiffs are still sitting on a major victory in their environmental racism suit. EARLIER RULING In his earlier, 137-page opinion, Orlofsky found that the citizens’ groups who challenged the St. Lawrence Cement Co. plant’s opening had proven that they would be “irreparably harmed.” “At its heart,” Orlofsky wrote in the first opinion, “this dispute centers around the allegedly racially discriminatory siting of an industrial facility in an impoverished neighborhood of Camden, New Jersey, 91 percent of whose residents are persons of color.” The plaintiff in the suit, South Camden Citizens In Action, is a community organization whose members are residents of a neighborhood in Camden known as “Waterfront South.” The proposed SLC plant would grind and process “granulated blast furnace slag” or GBFS, which it would then sell as an additive to cement. Orlofsky found that the proposed facility would emit certain pollutants into the air, including “particulate matter (dust), mercury, lead, manganese, nitrogen oxides, carbon monoxide, sulphur oxides and volatile organic compounds.” If the plant opened, Orlofsky found that every year, there would be about 35,000 inbound delivery trucks arriving and about 42,000 outbound truck deliveries and that truck routes pass through the Waterfront South community. The 2,132 population of Waterfront South, he found, is 41 percent children and predominantly minority — 63 percent African-American, 28 percent Hispanic and 9 percent non-Hispanic white. Orlofsky also found that the residents of Waterfront South already suffer from a “disproportionately high rate” of asthma and other respiratory ailments. And the SLC plant would not be the first facility to pose an environmental burden on the neighborhood, Orlofsky found. “The Waterfront South neighborhood is already a popular location for the siting of industrial facilities,” Orlofsky wrote. The judge noted that the neighborhood already contains the Camden County Municipal Utilities Authority (a sewage treatment plant), the Camden County Resource Recovery facility (a trash-to-steam plant), the Camden Cogen Power Plant (a co-generation plant), and two “Superfund” sites. Another four sites within one-half mile of SLC’s proposal plant are currently being investigated by the U.S. Environmental Protection Agency for the possible release of hazardous substances, Orlofsky noted, and the NJDEP has also identified 15 known contaminated sites in the Waterfront South neighborhood. Orlofsky ruled that the procedures followed by the NJDEP when it granted the necessary air permits to SLC to allow its proposed facility to begin operations were seriously flawed and violated Title VI. “The NJDEP considered only whether the facility’s emissions would exceed technical emissions standards for specific pollutants, especially dust,” Orlofsky wrote. “Indeed, much of what this case is about is what the NJDEP failed to consider. It did not consider the level of ozone generated by the truck traffic to and from the SLC facility, notwithstanding the fact that the Waterfront South community is not currently in compliance with the National Ambient Air Quality Standard established by the EPA for ozone levels, nor did it consider the presence of many other pollutants in Waterfront South.” Orlofsky also found that NJDEP did not consider “the pre-existing poor health of the residents of Waterfront South,” or the “cumulative environmental burden already borne by this impoverished community.” But “perhaps most importantly,” Orlofsky said, “the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South.”

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