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Waterfront South: It sounds like a luxury condominium community with sweeping ocean views and bracing sea breezes. But in Waterfront South, an impoverished minority neighborhood in Camden, N.J., a little girl walks down the street with her mother and halts in her tracks to complain, “Mom, I can’t breathe.” In Waterfront South, a playground surrounded by industrial stacks on two sides and debris on a third side stands deserted on an August afternoon because the stench in the air repels even the most energetic toddler. And in Waterfront South, where 40 years ago neighbors sat out on their front steps at night, held block parties and organized street cleanups, residents now take refuge indoors from the sewage plant odors, the diesel truck noise and the dirt of the pollution mecca that has enveloped and flourished around them. This neighborhood — today of about 2,100 people, 41 percent of whom are children — grew up around the Camden port facility more than half a century ago, but in more modern times has slowly been swallowed by pollutant producing county and industrial facilities. The saturation of the neighborhood had reached such critical mass that despite promises of new jobs and other benefits from one more new facility — a cement plant — many residents, in the words of community activist Bonnie Sanders, believed, “Enough was enough.” Waterfront South now includes a sewage treatment plant serving 35 municipalities; a trash-to-steam plant; a cogeneration plant; two Superfund sites — one contaminated by radioactive thorium and another by hazardous waste drums; and 15 other known contaminated sites identified by the state Department of Environmental Protection (DEP), such as Camden Iron & Metal and Camden Lime. And so when St. Lawrence Cement Co. in 1999 decided to build its $55 million facility in Waterfront South to grind and process granulated blast furnace slag — an operation that would involve about 35,000 inbound delivery trucks and about 42,000 outbound delivery trucks annually on residential streets — Sanders, Phyllis Holmes and other members of a local community group drew a line in St. Lawrence’s sand. In closely watched federal litigation, South Camden Citizens in Action charges that the method used by the DEP to grant air-emission permits to St. Lawrence violates Title VI of the Civil Rights Act of 1964 and that the operation of the facility will have an adverse disparate impact on residents. Title VI prohibits federally funded agencies from discriminating on the basis of race, color and national origin either by acting intentionally or by taking actions that have a discriminatory effect. TWO KEY LEVELS The case is key on two levels. To the still-growing and struggling environmental justice movement — a merger of the environmental and civil rights movements of the 1960s and 1970s — it represents the first time that a federal judge has held that a state agency, as a recipient of federal funds, had an obligation under Title VI to investigate any disparate impact a project might have. And after the U.S. Supreme Court ruled last spring that private suits could not be brought to enforce Title VI’s prohibition against disparate impact discrimination, that same judge held that these citizens could use Sec. 1983 of the Civil Rights Act to achieve the same result. That ruling, now on appeal to the 3rd U.S. Circuit Court of Appeals, has implications well beyond the environmental arena, and for all kinds of civil rights litigation. For the women sitting around Bonnie Sanders’ table in a room darkened to counter the relentless midday heat on a summer day, the issues are not national but local, and very personal. “Many people here have trouble breathing, especially our children,” Sanders says. “Since we started this little lawsuit, people have been knocking on my door telling me their children are getting asthma attacks.” The residents have a disproportionately high rate of asthma and other respiratory ailments, according to the federal court’s findings. FOUL ODORS, NOSEBLEEDS For years it was simply a nice neighborhood, recalled Phyllis Holmes, who moved to Waterfront South in 1968. “We had beautiful trees along the streets and neighbors got out, but then my youngest started to get nosebleeds and her sister would have trouble breathing,” she says. Eventually, she noticed a definite change in the air — the way it smelled. “It was a foul, foul odor,” Holmes says. The smell was open sewage sludge baking under the hot sun, says attorney Olga Pomar of Camden Regional Legal Services, who at the time was working with the community group, doing grassroots planning. Reducing the odor was the group’s first project. “The DEP basically said they should stay inside,” recalls Pomar, who ultimately helped to recruit Jerome Balter of the Public Interest Law Center of Philadelphia to sue on the group’s behalf. After a $4 million upgrade of the plant’s facilities, the odor is better than it was, but there are still days when the smell can make a person gag, residents say. Shortly after the sewage fight, the U.S. Environmental Protection Agency came to the neighborhood to discuss the existence of two Superfund sites. In 1981, the EPA identified “hot spots” that were traced to two abandoned lantern warehouses where thorium was used. The radioactive material had been tracked from the site into neighboring residential lots. The EPA took its first remediation step just last year by tearing down the warehouses. The second site was the Martin Aaron Drum Co., which recycled drums containing hazardous waste and contaminated the surface area in the process. “It was shocking to hear all of this was in our community,” Holmes says. The cement plant was just “the icing on the cake,” laughs Sanders sardonically. “When we got wind it was coming, we notified people door-to-door,” she recalls. “We said, ‘We’re not going to let them do with the cement plant what they did with the sewage plant.’ We never even knew that plant was going to be built.” They also learned about cement dust. “It hardens the arteries and the lungs,” Sanders says. “We decided we didn’t want the cement plant because it is bad for people’s health. Without breath, there is no life.” They wrote letters and sent petitions to state officials and met with the head of air permitting. They filed administrative complaints with DEP and EPA. EMISSIONS TESTED While the residents waited for an August public hearing, St. Lawrence, still without its air permits, began to build. Christine Whitman, then New Jersey governor, now EPA administrator, was at the groundbreaking. “They looked around the community and saw the nationality of people here — we’re mostly black, Hispanic and some Vietnamese — and made up their mind that we couldn’t do anything to stop them,” says a still-angry Sanders. Building before getting the air permits was not an in-your-face act, says St. Lawrence’s counsel, Brian S. Montag of Pitney, Hardin, Kipp & Szuch of Morristown, N.J. “State law allows construction to begin once you have an administratively complete application pending before DEP,” he says. Before the company put shovel to ground, he explains, it did a modern and sophisticated analysis of air emissions from 20 major sources in the area and the expected emissions from its new plant and compared those to national air-quality standards. Finding that its emissions were well within the safe, legal range, the company went forward with construction in the belief it would get its air permits, he says. While St. Lawrence was aware of the community’s struggle with sewage odors and other problems, he says, there was no discrimination in the plant’s location. Waterfront South was chosen for four critical reasons, he says: Camden is a port city and St. Lawrence needed a deep-water port to get its raw material from Europe, he explains. The company wanted to expand into the Philadelphia-New Jersey-Delaware market and this port was the only option for the company’s base of operation. “You also have an existing infrastructure — access to bridges in and out of Philadelphia and access to all major highways,” he says. And finally, the South Jersey Port Corp. has trained workers and acquired all of the equipment for unloading shipments. “When you really break this case down, you have an environmentally safe and economically productive operation making an important investment in an area that needs it the most,” he argues. “That’s the kind of investment we should be promoting.” The company had dozens of meetings with the residents, Montag says, and when DEP couldn’t address their questions, “We agreed to have residents pick an expert and we paid for it.” But in the end, what was left were the lawyers for the community group, he says, who were very clear about the precedent-setting nature of the litigation. “There’s always likely to be some people who don’t want you there,” Montag says. “The best you can do is ask if you’re doing what’s right under the laws in effect and on an economic basis.” But neither St. Lawrence nor DEP assessed the pollution’s impact on the Waterfront South neighborhood itself, insists Pomar, who says the analysis was regional, not local. “The company walked into this situation fully aware of what this neighborhood was like,” she says. “They assumed DEP would grant the permits and they started building because they knew people would find it difficult to oppose the plant while it was going up before their eyes. They took a calculated risk and if it wasn’t for the lawsuit, they’d be absolutely right.” DEP, which issued the air permits and receives federal funds, became the primary target of the suit by the citizens’ group and individual residents. They charged the agency with intentional and disparate impact discrimination under Title VI and the Equal Protection Clause. St. Lawrence intervened as a defendant. South Camden Citizens in Action v. N.J. Department of Environmental Protection, No. 01-702. On April 19, in a lengthy opinion, Judge Stephen Orlofsky granted the plaintiffs’ request for a preliminary injunction and vacated the permits. The judge found that DEP failed to consider any evidence beyond St. Lawrence’s compliance with technical emissions standards and failed to consider the totality of the circumstances surrounding the cement plant’s operation. “Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South,” the judge wrote. Shortly after his ruling, the U.S. Supreme Court held, 5-4, in Alexander v. Sandoval that there was no private cause of action to enforce Title VI’s disparate-impact regulations. But heeding a dissent written by Justice John Paul Stevens, Orlofsky, in a second lengthy opinion on May 10, held that the community group could use Sec. 1983 to enforce the Title VI regulations. The judge held that valid federal regulations, “which have the ‘force and effect of law,’ may create rights which are enforceable under Sec. 1983.” In June, the DEP conducted the disparate-impact analysis ordered by the judge and concluded that the cement operation would not have a disparate impact on the neighborhood. The case is now pending decision in the 3rd Circuit, which held arguments on Sept. 25. UPHILL FIGHT Courts generally have rejected environmental justice claims under the Equal Protection Clause because of the difficulty of proving intent, says Prof. Sheila Foster of Rutgers University School of Law. “It has only been in the last five or so years that the Title VI claim has gained any momentum in terms of litigation strategy in this area,” she says. “For sure it has been pleaded a lot. But most of these cases become moot because the developer settles or pulls out. “This is the first case that has made it this far and done so on the merits,” she says. “The opinion is extraordinary not only in length but its depth in consideration of the type of issues environmental justice advocates have been raising over the past 20 or so years.” The most important part of Orlofsky’s decision was his finding that DEP’s failure to make a disparate impact investigation violated Title VI regulations, says Michael Churchill of the Public Interest Law Center of Philadelphia, co-counsel with Pomar and Balter. “No court has previously ruled on whether this failure to investigate violates the law,” he says. Given EPA’s poor record of handling Title VI complaints, Churchill adds, imposing a duty on federal fund recipients to investigate is crucial and will become even more so if private parties can’t use Sec. 1983. DEP and St. Lawrence argue on appeal that there is no duty to investigate, only to ensure that a permit applicant complies with national air quality standards. They also argue that to rely on Sec. 1983, a plaintiff has to assert a violation of a federal right. There is no rights-creating language in the Title VI, Sec. 602, regulations, Montag argues. As the Sandoval majority said, he asserts: “Far from displaying congressional intent to create new rights, Sec. 602 limits agencies to ‘effectuating’ rights already created by Sec. 601.” And even if there were rights-creating language in the regulations, regulations cannot create rights; only statutes and the Constitution can, argues Richard Samp of the pro-business Washington Legal Foundation, which is supporting St. Lawrence. Sec. 1983 is a procedural right to enforce other federal rights and should be construed broadly to apply here, counters Foster. “The big question is ‘What is a federal right enforceable under Sec. 1983?,’” she says. “The hurdle here is this is a regulation. There is [a] split among the circuits on what type of legal authority creates rights.” There is good precedent in the 3rd Circuit for enforcing regulations through Sec. 1983, she says, but the issue is bound to reach the U.S. Supreme Court. As if those issues were not enough to give civil rights litigators nightmares, the appeal also argues that the disparate-impact regulations are invalid. Title VI prohibits only intentional discrimination, they contend, not unintentional disparate-impact discrimination. The disparate-impact regulations are an “invalid extension of agency authority.” But Foster says, “To say that regulations now over 30 years old are no longer valid is something of a stretch.” However, she says, Justice Antonin Scalia in Sandoval made a point of questioning the regulations’ validity. “What does that mean?” she asks. “No body — not the Supreme Court or Congress — has seriously questioned or overruled these regulations.” As the legal battle continues, St. Lawrence — freed of the injunction by the 3rd Circuit — operates its completed cement plant. And Bonnie Sanders, Phyllis Holmes and their neighbors continue to organize and wait. “The Civil Rights Act started in ’64. I was there,” recalls Sanders. “There was bleeding and dying to get us rights. Here it is 2001. Why shouldn’t we pick up where they left off? Everyone keeps saying our children are our future. What future do we have if they kill our children?”

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