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The 3rd Circuit’s most important civil rights case from 2001 — South Camden Citizens in Action v. New Jersey Department of Environmental Protection — is probably headed for the U.S. Supreme Court, although it’s anyone’s guess whether the justices will take up the case. Voting 9-3, the judges of the 3rd Circuit have rejected a request from the plaintiffs in the closely watched “environmental racism” case that asked for a rehearing before the full court. The vote means that the plaintiffs now have only one card left to play in a hand that once looked like a solid winner. The plaintiffs won the first round when U.S. District Judge Stephen M. Orlofsky of New Jersey issued an injunction that barred the opening of an already built $50 million cement plant in Camden, N.J., after finding that New Jersey environmental officials never considered the disparate 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. But just a few days later, the U.S. Supreme Court handed down Alexander v. Sandoval, a 5-4 decision in which the justices held that there is no private right of action under Title VI of the Civil Rights Act to enforce “disparate impact” regulations. Lawyers for the NJDEP and St. Lawrence Cement Co. quickly urged Orlofsky to vacate his injunction, saying Sandoval had completely undermined the South Camden plaintiffs’ theory. But Orlofsky refused. In a second opinion, issued May 10, 2001, he ruled that the injunction would remain in effect because the plaintiffs had the right to pursue the same remedies under � 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 � 1983 claim may not be the workable alternative theory that Orlofsky said it is. And in December, a different three-judge panel voted 2-1 in favor of the defendants, saying Orlofsky erred by relying on a 3rd Circuit decision that was overruled by Sandoval. Writing for the court, Senior 3rd Circuit Judge Morton I. Greenberg found that � 1983 cannot be used to enforce a federal regulation “unless the interest already is implicit in the statute authorizing the regulation.” But 3rd Circuit Judge Theodore A. McKee dissented and said the majority was engaging in “analytical alchemy” and that its decision would effectively overturn controlling 3rd Circuit precedent — something only the court sitting en banc is allowed to do. McKee’s dissent was like an engraved invitation to the plaintiffs to seek rehearing en banc, and they did. Now the court has announced that it has voted not to rehear the case. Three of the 12 voting judges — McKee, Carol Los Mansmann and Julio M. Fuentes — said they would have granted rehearing.

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