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In a closely watched “environmental racism” case, a federal appeals court has lifted an injunction issued in April that barred the opening of an already-built $50 million cement plant after finding that the plaintiffs are likely to lose on appeal and that the plant’s owner is suffering losses of more than $500,000 per week. In a three-page order issued late on Friday in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, the 3rd U.S. Circuit Court of Appeals cleared the way for the St. Lawrence Cement Co. to begin operations, and it did so on Monday. In a separate order, the appellate court also put the case on a fast track and announced that it will hear arguments in the week of July 30 to consider whether to reinstate the injunction handed down by federal Judge Stephen M. Orlofsky of the U.S. District Court for the District of New Jersey. Orlofsky, in the first decision of its kind, ruled in April that New Jersey environmental never considered the impact the cement plant would have 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. In the injunction, Orlofsky enjoined the plant from operating and vacated the permits issued by the New Jersey Department of Environmental Protection. He also ordered NJDEP to conduct studies on the impact the plant will have on the minority neighborhood. Just a few days after the decision, the U.S. Supreme Court issued an opinion that seemed to undercut the plaintiffs’ theory in the case by holding that there is no private cause of action to sue under Title VI for enforcement of disparate impact regulations. But Orlofsky refused to lift the injunction, saying in a later opinion that the Supreme Court’s decision in Alexander v. Sandoval was not fatal to the plaintiffs’ case since they can still pursue the same relief under a Section 1983 claim. Now the 3rd Circuit has lifted the injunction and strongly hinted that the Section 1983 claim may not be the workable alternative theory that Orlofsky said it is. In addressing the question of whether St. Lawrence Cement is “likely to succeed” in the appeal, the court noted that “in order to seek redress through Section 1983, a plaintiff must assert a violation of a federal right, not merely a violation of a federal law.” The order staying the effect of Orlofsky’s injunction was issued by a three-judge motions panel — 3rd Circuit Judges Richard L. Nygaard, Samuel A. Alito and Julio M. Fuentes. In a statement issued on Monday, St. Lawrence Cement said the ruling “is an important step in efforts to rebuild and revitalize Camden by creating jobs and opportunities for the hard-working residents of Waterfront South and surrounding areas.” The statement went on to say that nine state and federal agencies have “established that the Camden plant is a low emissions facility that meets and exceeds all human health and air quality standards.” Plaintiffs’ lawyers responded to the ruling by urging the appellate court to reconsider and asking that the issue be heard by the full court. In their brief, attorneys Jerome Balter and Michael Churchill of the Public Interest Law Center of Philadelphia, along with attorney Olga D. Pomar of Camden Regional Legal Services and Luke W. Cole of the Center on Race, Poverty and the Environment in San Francisco, argue that the 3rd Circuit has already held in Powell v. Ridge that plaintiffs can sue under Section 1983 to enforce a federal regulation. The motions panel apparently ignored that holding, they argue, and instead seized on “dicta” from the Sandoval decision. But the lead dissenter in Sandoval, Justice John Paul Stevens, explicitly said that regulations are enforceable under Section 1983, they argue, and that dissenting comment “was never challenged by the majority.”

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