Is There Environmental Justice For All?

Stuart Lieberman, Esq.

Location, location, location. People want to buy good locations. No one wants bad locations. Except, people building incinerators, landfills, recycling facilities, plants with noxious smoke stacks. It seems that if it pollutes and makes people sick, chances are it will be located in a poorer, often minority community. “They have the baddies already, what will one more lead emitting smoke stack do?”

The Civil Rights Act of 1964 contains what is referred to as Title VI, which provides that no government program can engage in methods or practices that have the effect of discriminating. Every government program is required to develop its own regulations so as to insure that its operations do not discriminate. In this country, polluting operations such as those referred to above, are supposed to go through a disparate impact analysis: part of the environmental justice movement. While this sounds good, it seems now that offenders face little in terms of consequences if they ignore Title VI’s obligations.

The question that has arisen is what happens when someone feels that they are being victimized by a program that discriminates? Do they have a right to sue the government based on an allegation that the program violates Title VI of the Civil Rights Act? Unfortunately, it appears as if they do not.

First, the bad news which came from the United States Supreme Court in the case of Alexander v. Sandoval, decided on April 24, 2001. In that case, the Plaintiff challenged the Alabama Department of Public Safety’s official policy of administering its driver’s license examination only in English. He maintained that this policy violated Federal regulations which prohibited government programs from using methods that discriminate. Both a federal trial court and a federal appeals court agreed that the program was discriminatory and issued injunctions precluding the State from continuing this English Only policy.

But the United States Supreme Court, on rather technical grounds, reversed this decision. Justice Scalia wrote an opinion for the majority in which he concluded that private citizens do not have the right to commence a lawsuit under Title VI of the Civil Rights Act to enforce anti-discriminatory regulations. Specifically, while private individuals can sue in cases where there is intentional discrimination, the Court found that there is no private right to file a lawsuit concerning what are called disparate impact “regulations”. In other words, where a program does not on its face discriminate, but rather results in a disparate impact on one group of individuals, there cannot be a private lawsuit to enforce anti-discriminatory regulations.

This is so because private rights of action, in other words the ability of individuals to enforce federal laws, only exist when Congress provides for those rights. And, this analysis entails not just a determination of whether or not the federal regulation includes a private right to sue, but also whether it includes a private remedy. That analysis is very complicated and beyond the scope of this article.

But the Supreme Court reviewed its extensive analysis of the federal regulation in question. After doing so, it concluded that there is no private right for individuals to file suit to sue agencies alleging that their programs have a disparate discriminatory impact. What then does this mean in the case of individuals who wish to file suit alleging that environmental permitting decisions have resulted in a disparate impact for them?

In the case of South Camden Citizens in Action v. New Jersey Department of Environmental Protections, a federal judge was forced to address this issue, specifically: whether or not there was any way that private parties could sue a state agency alleging that permitting decisions had a disparate effect on poor communities.

A group of residents in Camden, New Jersey, a predominantly minority and poor community, alleged that the decision to issue air pollution permits to a cement manufacturing company tended to have a disparate impact on their community. In other words, they were alleging that their community already suffers from a large number of environmentally injurious activities and that they just did not need another similar activity to add to their misery. They also alleged that the government failed to perform a legally required environmental justice analysis before issuing the air pollution permits.

Again, on highly technical grounds, Judge Stephen Orlofsky found that a private right of action existed to enforce the government’s obligation to engage in an environmental justice analysis. This appeared to be a victory for people concerned about environmental justice in America. The Court found that while the Supreme Court held that the programs regulations themselves did not create a private right of action, there was an avenue by which private individuals could still file a lawsuit and challenge a government activity for not taking into account how a particular poor and minority community will be uniquely affected by environmental permitting decisions. After the Alexander v. Sandoval Supreme Court decision, this significant trial court decision from the federal court in New Jersey was very welcome news.

But, good news is often short lived and it was here as well. An appeal was filed and the Court of Appeals reversed in December 2001. The Court found that private parties cannot enforce the duty of an environmental agency to engage in a disparate impact analysis.

Thus we must ask: is the environmental justice movement a toothless tiger? So far, things don’t look too good for people with a heart – for people who care about our nations poor and minority communities. Sad, isn’t it: they can be forced to breathe in whatever and the Courts seem to be content to allow these people to become sicker every day.