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The importance of Tuesday’s 90-minute oral argument before the 3rd U.S. Circuit Court of Appeals in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, a closely watched “environmental racism” case, was perhaps most clearly expressed by the prominence of some of the lawyers who took seats in the pews just to watch. Among them were attorney Edward F. Mannino of the Philadelphia office of Akin, Gump, Strauss, Hauer & Feld, who is defending the Commonwealth of Pennsylvania in Powell v. Ridge, a suit over alleged racial bias in Pennsylvania’s school funding scheme, and Andre Dennis of Stradley Ronon Stevens & Young, the lead plaintiffs’ lawyer in cases against the National Collegiate Athletic Association. Mannino and Dennis both know that the outcome of Tuesday’s argument will have broad ramifications for a large category of civil rights cases because the 3rd Circuit will be forced to decide how much the landscape has changed with the U.S. Supreme Court’s decision earlier this year in Alexander v. Sandoval. In Sandoval, the justices held that there is no private right of action under Title VI of the Civil Rights Act to enforce so-called “disparate impact” regulations. The decision came just a few days after U.S. District Judge Stephen M. Orlofsky of New Jersey issued his landmark decision in South Camden Citizens that barred the opening of an already-built $50 million cement plant in Camden after finding New Jersey environmental officials never considered the impact on a predominantly minority neighborhood that already suffers from the effects of a sewage treatment plant, a trash-to-steam plant and numerous toxic waste sites. Lawyers for the NJDEP and St. Lawrence Cement Co. quickly urged Orlofsky to vacate his injunction, saying Sandoval had completely undermined the plaintiff’s theory. But Orlofsky refused. In a second opinion, issued May 10, he ruled that the injunction would remain in effect because the plaintiffs had the right to pursue the same remedies under Section 1983. In June, the 3rd Circuit lifted the injunction. A three-judge motions panel found that the plaintiffs were likely to lose on appeal and that the plant’s owner was suffering losses of more than $500,000 per week. That ruling, which cleared the way for the plant to open, 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 motions panel — Judges Richard L. Nygaard, Samuel A. Alito and Julio M. Fuentes — 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.” Tuesday, three different judges — a “merits panel” — heard oral argument on whether to reinstate the injunction. Many observers said that each side appeared to have one solid vote — Judge Theodore A. McKee siding with the plaintiffs and Judge Morton I. Greenberg siding with the state and the cement company — and that the outcome will hinge on Judge Thomas L. Ambro, whose questions made it impossible to predict his position. Although the plaintiffs would now seem to have an uphill battle due to the appellate court’s lifting the injunction, they did not argue first because they were the winners in the court below and are therefore appellees. Four lawyers argued — two on each side — and each was kept at the podium for more than the allotted 15 minutes as they fielded a slew of questions from the judges that ranged from highly technical to heavily loaded. REPRESENTING NJDEP Leading off was Deputy Attorney General Stefanie A. Brand, defending the NJDEP, who began by noting that the state agency has now conducted the disparate impact study that Orlofsky demanded and “found no disparity.” Looking at a wide range of pollutants, she said, the agency analyzed “where Camden fell in terms of municipalities across the state” and determined that Camden does not top the list for any of them. Turning to the precise legal question at issue — whether the plaintiffs can continue their suit under Section 1983 now that Sandoval has taken away their Title VI claim — Brand argued that the court should reject the argument. The essential holding of Sandoval, she said, is that only Congress can create rights. “Section 1983 creates the remedy,” Brand said, but “the right still must be created by Congress.” But Judge McKee asked if Sandoval had truly reached the question. And if the justices didn’t even consider suing under Section 1983 to enforce regulations, McKee asked if the 3rd Circuit is bound by its decision in Powell v. Ridge that seemed to answer that question in the affirmative. Brand said she didn’t believe Powell reached the question of pursuing such a claim under Section 1983 since the court instead assumed, pre-Sandoval, that Title VI provided a private cause of action. The problem for the plaintiffs, she said, is that Section 602 of Title VI “does not include rights-creating language.” As a result, she said, any regulations promulgated under it cannot create rights either. Judge Greenberg rephrased, saying “what you’re saying is that in effect, under the Supreme Court’s decision in Sandoval, Powell is no longer good law.” Brand said she believed that aspects of Powell survive, but that the issue of Section 1983 was not decided in Powell. REPRESENTING THE PLANT St. Lawrence Cement’s attorney, Brian Montag of Pitney Hardin Kipp & Szuch, argued that the wisdom of not allowing such a case to proceed in the courts is that enforcement of regulations strains the competence of the courts. Montag found a friend in Greenberg, who said he “couldn’t quite understand how a disparate impact analysis could be made here because, inevitably, if you take an area that has a higher concentration of a given group of people than the general population and then you put something in it — no matter what it is — it’ll have a disparate impact on that group, won’t it?” Montag agreed, saying he himself was unsure how the courts should measure disparate impact. He asked whether the courts should compare the plaintiffs’ statistics to county averages, state averages or national averages. REPRESENTING THE CITIZENS On behalf of the citizens’ group, attorney Michael Churchill of the Public Interest Law Center insisted that Sandoval didn’t decide the question and urged the judges to focus on two other cases. Sandoval, he said, was an extension and an application of the high court’s 1975 decision in Cort v. Ash that created a four-prong test for deciding whether a private right of action exists. But the issue the 3rd Circuit must now decide, Churchill said, is controlled by the Supreme Court’s 1997 decision in Blessing v. Freestone, which created a three-prong test for deciding whether a plaintiff has the right to sue under Section 1983. Judge Ambro asked: “Hasn’t the Supreme Court and indeed this court recognized that a Section 1983 federal right and an implied right of action analysis intersect — at least insofar as they involve the creating of a federal right?” “They intersect, but they are different,” Churchill said. While Cort v. Ash urges courts to decide if Congress intended to create a remedy, he said, that question isn’t asked in a Blessing analysis because Section 1983 clearly provides the remedy. Instead, Churchill said, the court should focus on whether the regulation at issue was designed to create a “personal right.” The EPA’s disparate impact regulations clearly meet the Blessing test, he said, because they essentially say not to subject individuals to discrimination. “I don’t know how we can get much more of an indication that this is intended to create a right that is personal,” Churchill said. Churchill told the judges that Congress was clearly informed about Title VI’s disparate impact regulations because they were passed by the Justice Department immediately after the statute was passed. Attorney General Robert Kennedy testified before Congress and spelled out how the regulations would work, he said. Perhaps the toughest questions of the day were posed to Churchill’s co-counsel, attorney Olga D. Pomar of Camden Regional Legal Services, who began her argument by reminding the judges of some of the key facts in Orlofsky’s original opinion. Pomar said that annually, the cement plant will emit 60 tons of fine inhalable particulate and that its trucks will make 77,000 trips in the neighborhood. The NJDEP, she said, completely failed to take into consideration civil rights implications. Judge Greenberg interjected and asked: “What should it do?” Pomar said NJDEP has the duty to consider whether its issuance of permits is disproportionately burdening any group of the population. “That would take three seconds,” Greenberg said. “All you have to look is to see who’s there. I could do it sitting here right now — yes, it does — OK, now what does that do?” Pomar said the agency violates Title VI when it repeatedly issues permits for new facilities in “communities of color” without ever considering the disparate impact on the minority neighborhood. Greenberg was unimpressed. “Suppose the people don’t want to build their plants in the suburbs where it’s not zoned industrial and so forth. Suppose they want to build it close to the port because every time the truck runs, it costs money.” Pomar insisted that the case was not brought against the industry, but rather a state agency. “What do you want done? Do want the court to somehow have a hearing, look at all the facilities that ever been approved, see where the impacts were, then make an analysis as to each one to see whether or not it was justified?” Greenberg asked. Before she could answer, Greenberg said, “This was highly justified in terms of economics. These people have got real competitors, they’ve got to be cheap.” Pomar said the courts must consider numerous factors and that not every minority neighborhood is as burdened as Camden’s Waterfront South. “How do you decide whether or not it’s worth having some people suffer the pollution so that a company can provide a product that the public must want or they wouldn’t be in business … is this what judges can do?” Greenberg asked. Pomar said “the question isn’t whether the company can subject people to pollution. The question is whether the company is subjecting a portion of the population in a disparate way one group in the population is forced to bear a higher burden.”

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