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Corporations seeking to avoid the financial burden and bad publicity of environmental justice lawsuits should look to the trends in this evolving area of the law when developing siting strategies for environmentally undesirable facilities. Over the past 20 years, a movement has developed supporting the theory that such facilities have been disproportionately placed in areas where the demographic makeup is predominantly minority, poor or both. Historically, proponents of environmental justice claims assert that the communities where these facilities are sited are without adequate representation and without the collective voice to oppose the placement of such facilities, which may pose human and environmental health risks. Some supporters of the movement even believe that intentional discrimination against these groups is a motive behind the placement choices for some of those facilities. Environmental justice is the reaction to this phenomenon. It stands for the proposition that the physical and cultural environments are intertwined and that the perceived inequities that result from the siting of these undesirable neighbors in poor and minority communities need to be corrected. On Feb. 11, 1994, President William Clinton signed Executive Order 12898 — “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” — which addressed the implementation of the federal government’s environmental justice policy. See Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994). In short, the order mandated that U.S. agencies are responsible for making environmental justice a part of their mission. The order states that each federal agency shall “identif[y] and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low income populations” in the United States. The order was accompanied by a memorandum that specifically called for implementation through enforcement of three statutes: the National Environmental Policy Act (NEPA), 42 U.S.C. � 4321 et seq.; Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. �� 2000d to 2000d-7; and � 309 of the Clean Air Act, 42 U.S.C. � 7401 et seq. See Memorandum accompanying Exec. Order No. 12898 (Feb. 11, 1994). POLICIES On April 3, 1995, the Environmental Protection Agency released a document titled “The EPA’s Environmental Justice Strategy,”available at www.epa.gov/compliance/resources/policies/ej/index.html. This document is essentially a roadmap for the agency’s implementation of order 12898, and it outlines the goals and objectives of the agency with respect to environmental justice. Among the topics addressed in the strategy statement are: � integration of environmental justice with other EPA principles and approaches; � public participation and community outreach; � health and environmental research; � data collection; and � enforcement, compliance and regulation. In April of 1998, the EPA released its “Final Guidance For Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analyses.” [Also available at the Web site mentioned above.] Guidance documents generally are designed to improve agency internal management. The purpose of the 1998 document is to serve as guidance for EPA staff for incorporating the agency’s environmental justice goals into the preparation of environmental impact statements and environmental assessments under NEPA. At the same time, it is intended to “present basic procedures for identifying and describing junctures in the NEPA process where environmental justice issues may be encountered; present procedures for addressing disproportionately high and adverse effects to evaluate alternative actions; and present methods for communicating with the affected population throughout the NEPA process.” The EPA also processes environmental justice-related complaints under Title VI through the EPA’s Office of Civil Rights. The OCR has also issued several guidance documents. Among them is the “Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits,” available at epa.gov/civilrights/polguid.htm. This document outlines the procedures by which the EPA processes and investigates Title VI complaints that allege discriminatory impacts resulting from agency funding of permitting decisions. Another OCR issued document available at the same Web site is “Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs” (“Draft Recipient Guidance”), which was written at the request of the states. It provides state agencies with suggestions and methods for addressing potential Title VI concerns and claims. Beyond that, the OCR issued “Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits.” This document (also available at the Web site) creates criteria for the OCR’s staff in processing Title VI claims that allege discrimination in the environmental permitting context. In another effort to provide guidance to federal agencies’ staff, on Dec. 1, 2000, the EPA Office of General Counsel released a memorandum to the directors of the Office of Enforcement and Compliance Assistance, the Office of Air and Radiation, the Office of Solid Waste and Emergency Response, and the Office of Water — available at www.epa.gov/compliance/resources/policies/ej/index.html. The memorandum outlines the potential statutory and regulatory authorities under which environmental justice issues may be addressed in permitting. It specifically addresses the Resource Conservation and Recovery Act, the Clean Water Act, the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries Act, and the Clean Air Act as potential authorities that may be used to address environmental justice issues in permitting. The latest policy statement on environmental justice from the EPA was issued on Aug. 9, 2001, and is available at www.epa.gov/compliance/resources/policies/ej/index.html.The policy statement was simply an affirmation of the Bush administration’s commitment to the environmental justice issue and espoused no new stance different from the previous administration’s.ENVIRONMENTAL JUSTICE AND THE COURTSThe EPA Environmental Appeals Board has had several opportunities to rule on cases where environmental justice issues arose. One significant case is In re Chemical Waste Management of Indiana, Inc. (CWMII), 6 E.A.D. 66 (1995). In that case, Region V issued a final permit decision renewing the federal portion of a landfill’s RCRA permit, as well as a Class 3 modification of the same permit. The appeals board received three petitions for review of the decision.The petitions raised environmental justice concerns claiming that the operation of the facility would have a disproportionately adverse effect on the health, environment or economic well-being of minority and low-income communities in the vicinity of the landfill. They also contended that the region erred when it conducted a demographic study of only a one-mile radius centered on the facility and ignored information regarding the impact of the facility on the communities outside the study area.The appeals board held that the petitioners failed to demonstrate that the region clearly erred in restricting the scope of its demographic study to a one-mile radius, or in its consideration of relevant information. The board stated that the “proper scope of a demographic study to consider such impacts (upon health and the environment) is an issue calling for a highly technical judgment … precisely the kind of issue that the region, with its technical expertise and experience, is best suited to decide.”Perhaps more importantly, the board in CWMII noted that although the agency is required to issue a permit to any applicant who meets all the requirements of RCRA and its implementing regulations, “there are two areas in the RCRA permitting scheme in which the region has significant discretion, within the constraints of RCRA, to implement the mandates of the Executive Order” (referring to order 12898).Under 40 C.F.R. � 124, the board held that when the region has reason to believe that a particular facility may have disproportionate impact on a minority or poor community, the region should, “as a matter of policy, exercise its discretion to assure early and ongoing opportunities for public involvement in the permitting process.”The board also held that the region has discretion to implement order 12898 via the omnibus clause under � 3004(c)(3) of RCRA. That clause provides the administrator of the EPA with the authority to include any terms within a permit necessary to protect human health and the environment. The board ruled that under the omnibus clause, the region could be required to include terms within a permit to prevent adverse, disproportionate impacts to minority and poor communities.Thereafter, the appeals board decided In re Envotech, 6 E.A.D. 260 (1996). That case involved environmental justice challenges to permitting similar to those addressed in CWMII, but the statute at issue was the Safe Drinking Water Act.The board followed the reasoning of CWMII and applied it to the SDWA. It held that the agency must issue a permit to an applicant who meets all of the requirements of the SDWA, but that order 12898 could be implemented in the SDWA through the public comment requirement in the statute, as well as through the omnibus authority contained in 40 C.F.R. � 144.52(a)(9).However, the board was careful to point out that any exercise of discretion pursuant to the omnibus clause in the SDWA, like RCRA, was limited to the language of the authority. This meant that the region could only address impacts related to the protection of underground sources of drinking water under the SDWA, and not alleged impacts upon the community, diminution of property values or “alleged proliferation of local undesirable land use.”The first major Title VI case involving environmental justice occurred in 1997. A group of residents in Chester County, Pa., sued the state Department of Environmental Protection, claiming environmental discrimination under � 602 of the act. The suit alleged that the issuance of a permit by the department that allowed the placement of a facility in a predominantly African-American neighborhood would create an adverse disparate impact upon the residents. The district court dismissed the claim, finding that there was no private cause of action under Title VI, � 602. Chester Residents Concerned for Quality Living v. Seif, 944 F.Supp. 413 (E.D. Pa. 1996).On appeal, the 3rd U.S. Circuit Court of Appeals reversed, holding that private individuals could bring discrimination claims under Title VI. Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997). The decision was appealed to the U.S. Supreme Court, Seif v. Chester Residents Concerned for Quality Living, 524 U.S. 915 (1998), but by the time the Court agreed to hear the case, the developer had abandoned the project and the Court deemed the claim moot.The latest round of environmental justice litigation is still ongoing. It involves a group of residents in Camden, N.J., fighting the permitting of a cement grinding facility. In South Camden Citizens In Action v. New Jersey Dept. of Envtl. Protection (SCCIA), 145 F.Supp. 2d 505 (D.N.J. 2001), a citizens group sued the DEP, et al., to halt the construction of a cement grinding facility near an already environmentally-burdened, poor, minority neighborhood.The plaintiffs claimed that the DEP had failed to properly consider the “potential adverse, disparate impact of their decision to grant [the cement company's] application for air permits to operate its proposed facility.” (Emphasis supplied).“Disparate-impact” means that a policy, neutral on its face, still has adverse effects upon a particular group. The suit alleged that the agency’s failure to consider the disparate impact was discriminatory under Title VI, � 602. While the federal judge had previously granted a preliminary injunction halting the construction of the plant, a U.S. Supreme Court ruling, decided five days later on April 24, 2001, effectively negated the residents’ temporary victory.In Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court decided a dispute where plaintiffs alleged discrimination by the Alabama Department of Public Safety’s policy of administering its driver’s license tests in English only.The Court decided the case on the narrow issue of whether a private right of action exists to enforce disparate-impact regulations promulgated under Title VI. The Court answered that question in the negative, finding that, within the text and structure of Title VI, � 602, there is no Congressional intent to create such a right.Following Sandoval, the South Camden citizens group amended their complaint to allege disparate impact under 42 U.S.C.S. � 1983, which covers civil rights actions. The district court allowed the claims to proceed under that section. However, on appeal, the Third Circuit reversed, holding that EPA regulations did not create a private right enforceable under � 1983. South Camden Citizens In Action v. NJDEP, 274 F.3d 771 (3d Cir. 2001).Once again, the citizens group amended their complaint, this time alleging, among other things, that the DEP intentionally discriminated (as opposed to a disparate-impact claim) under Title VI and the Equal Protection Clause of the Fourteenth Amendment. The district court judge allowed the claim to proceed, denying a motion to dismiss the suit. South Camden Citizens In Action v. NJDEP, 532 F. Supp. 2d 486 (D.N.J. 2003).The judge found that the plaintiffs’ second amended complaint contained “allegations sufficient to state a cause of action of intentional discrimination under both � 601 of Title VI and the Fourteenth Amendment.”The referenced allegations included that the DEP was aware of the potential disproportionate burden that the cement-grinding facility could pose to the already overburdened community and failed to take measures to “assuage that burden.” Also, the judge noted the claim that the state agency had a history of such discriminatory behavior and was aware of the “discriminatory onus placed upon the complainants.”IMPLICATIONS FOR INDUSTRYCompanies seeking to locate a place for their industrial facilities should do their homework prior to investing in a particular site.This means conducting research on the site in question. Does the community already have a plethora of “undesirable land-use neighbors?” Are there state or federal Superfund sites nearby? And most importantly, what is the socio-economic makeup of the community?Placement of facilities in poor, minority neighborhoods is likely to draw the attention and community involvement that mobilizes citizens to bring environmental justice-based lawsuits. Alternative locations should be evaluated, considering the additional costs associated with such lawsuits — not only costs of litigation, but also the long-term potential effects from negative press.Corporations should also attempt to locate sites for facilities by approaching the process of selection as a collaborative community effort. Community outreach should be the first step in the process. Genuine concern over the effects of a facility on its neighbors — and attempts to mitigate those effects through suggestions of alternative designs, community outreach programs, and informational sessions — could help to obviate the ill-will and feelings of invasion that generally precede an environmental justice lawsuit.Overall, the company must view itself as a new neighbor in the community and assess the human and environmental impacts of its proposed facility from that perspective.The suits brought under the theory of environmental justice are not only financially burdensome for businesses that are trying to find suitable areas to locate their industrial facilities, but they also attract negative publicity — often painting the company as an enemy of disadvantaged communities.Corporations that develop siting strategies with the current trends of this area of the law in mind can attempt to avoid the cost and publicity associated with such lawsuits.Some clear lessons may be drawn from the decided cases and the policies espoused by the EPA. Beyond that, careful attention must be given to meeting all the requirements for the permitting process.These considerations may go a long way to place a company in a good position to survive, at least initially, environmental justice attacks.Spiesman and Murtha Bromberg are partners and members of the environmental law & litigation practice group, and Stanger was a 2003 summer associate at Porzio, Bromberg & Newman (www.pbnlaw.com) of Morristown, N.J. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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