ENVIRONMENTAL RACISM SUITS
BY PRIVATE PLAINTIFFS AFTER
CHESTER RESIDENTS FOR
QUALITY LIVING VS. SEIF
by Benjamin E. Griffith
Environmental Racism is an ugly term and a complex issue. It sparks claims that minorities and low-income populations are victims of polluted environments and have been exposed to disproportionately high levels of pollution through the intentional siting of industrial polluters, hazardous waste facilities, commercial hazardous facilities, municipal solid waste landfills, public sewerage systems and "trash plants." Spawned by the movement know as Environmental Justice or Environmental Equity, it pits the interests of industrial growth and economic development against the interests of minority communities in long-term health and safety. Those interests have at times been in sharp conflict, propelling the issue of environmental racism into the national spotlight.
Environmental Racism: Movement or Moving Target?
Some have charged that there is just no evidence that "environmental racism" even exists and have characterized it as the Clinton Administration’s "new and interesting way to destroy job opportunities for racial minorities." S. Milloy, Fighting Environmental Racism, New York Post, May 18, 1998 ("It is largely the creation of activists constantly on the lookout for new ways of keeping the doom-saying pot boiling. The best environmental policy is to create jobs for people who don’t have them. Sadly, that is just what the EPA is likely to kill."). Others have pointed to the 1987 landmark report of the Commission for Racial Justice of the United Church of Christ, "Toxic Waste and Race in the United States," which painted a startling picture of the extent of environmental racism, indicating that three out of every five Black and Hispanic Americans were living in communities that had one or more toxic waste sites. According to this seminal report:
Still others have questioned the reliability and accuracy of the demographic and statistical basis for environmental racism claims of "disproportionate" siting of solid waste facilities, most recently in an article by John E. Milner and John Turner, "Environmental Justice," 13 Natural Resources and Environment 478 (ABA Section of Natural Resources, Energy, and Environmental Law, No. 3, Winter 1999):
For example, on August 1, 1995, the U.S. General Accounting Office, at the request of Rep. John Lewis (D-Ga.), issued a comprehensive report on 295 municipal solid waste landfills. It concluded that fewer than half of the landfills studied had a higher percentage of minorities living within one mile of the facility than the percentage in the rest of the county where the landfill is located. In addition, at more than half of the landfills studied, people living within one mile of the facility had higher incomes than the county average. The report also summarized ten other studies dealing with hazardous waste facilities. It noted that three of the ten studies found minorities more likely to live near hazardous waste sites than non-minorities. Four of the studies showed no relationship, while three were inconclusive.
The Environmental Justice proponents nonetheless contend that our nation’s environmental laws on balance have not been implemented and enforced adequately to protect minority and low-income communities, resulting in these communities being placed "at risk" as recipients of disproportionately allocated environmental burdens. Hollenbeck & Hudik, infra.
From Board Room to Courtroom
The complexity of the environmental racism concept is heightened by the impassioned and bitterly fought battles that have been waged from city halls to federal courtrooms. One of those battles was recently waged by minority residents of Chester, Pennsylvania, who brought an environmental racism suit charging that for the past decade a disproportionate number of waste treatment facilities had been permitted to be built in their predominantly African-American section of Delaware County. After a major victory for the Chester Residents in the Third Circuit Court of Appeals was vacated on mootness grounds by the United States Supreme Court, neither a satisfactory solution nor a truce appears anywhere in sight.
To get a grasp on this issue, we first need to survey the legal landscape of this volatile area of developing jurisprudence that merges the fields of civil rights, environmental law and land use.
We will then examine the lower court and appellate court decisions in Chester Residents for Quality Living v. Seif, as well as subsequent relevant observations by other courts.
Finally, we will tackle this thorny problem from a local government perspective, perhaps shedding a bit more light and a little less heat on an issue that began as a grassroots movement and may be capable of resolution on the community level.
Title VI: Intentional Discrimination or Discriminatory Effect?
Title VI of the Civil Rights Act of 1964 bars racial bias and race discrimination in federally financed projects or programs receiving federal aid. Section 601 of Title VI, 42 U.S.C. Section 2000d, provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Section 602 of Title VI authorizes agencies that distribute federal funds to promulgate regulations that implement Section 601. In July 1973, as a result of all federal agencies being required to implement Title VI in programs that came within their jurisdiction, EPA issued regulations to implement Title VI in all federal environmental programs. Again in January 1984, pursuant to this authority, EPA promulgated amended implementing regulations to prohibit recipients of EPA assistance from carrying out any program, activity or policy that had the effect of unlawfully discriminating against individuals. These amended regulations included 40 C.F.R. Section 7.35(b), which provides in part:
A recipient shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, national origin, or sex, of have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex.
Executive Order No. 12,898
Title VI over the next decade was not seriously considered by many to be an effective weapon to combat racially discriminatory environmental decisions on the state and local government level. The shadow it cast was perhaps a motivating factor for discrete Title VI issues to be addressed and resolved during and not just after the decisionmaking process on some aspects of siting and permitting. That shadow got longer, however, and Title VI of the Civil Rights Act of 1964 got a shot of adrenalin on February 11, 1994, when President Clinton issued E. O. No. 12,898, 59 Fed. Reg. 7629 (1994), "Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations," directing each federal agency to
make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects on its programs, policies and activities on minority and low-income populations. (emphasis added)
The Environmental Justice Movement had found a friend and supporter at the highest level of our federal government. As pointed out by Kenneth J. Hollenbeck and Stephen J. Hudnik in a June 6, 1994, article published in the New Jersey Law Journal, "Green Justice: Should the Poor Inherit the Polluted" [Hollenbeck & Hudnik], up until the President issued this Executive Order, the mainstream environmental movement had been the target of increasingly vocal criticism over its disregard of the needs of minority and economically disadvantaged urban communities:
At worst, it was characterized as a deliberate attempt by upper and middle class environmentalists to secure government assistance to avoid the unpleasant externalities of the very system from which they themselves had already benefitted so extensively.
More recently, however, the number and diversity of those suggesting that there are serious distributional problems in environmental protection policy has significantly increased. These criticisms include the regressive distribution of the economic costs and benefits associated with pollution control, as well as the prevalence of hazardous pollutants in communities where minority populations live and work. Id.
It should be noted that Title VI is inapplicable to EPA actions, including EPA’s issuance of permits; however, Section 2-2 of Executive Order 12,898 "is designed to ensure that Federal actions substantially affecting human health or the environment do not have discriminatory effects based on race, color, or national origin," and EPA’s commitment to a nondiscrimination policy in its own permitting programs is now a matter of record.
Private Right of Action
Plaintiffs have long been able to assert a private right of action under Section 601 of Title VI as a weapon against racist environmental practices, but only if they could satisfy the more stringent standard of intentional discrimination. While Section 601 reaches only claims of intentional discrimination, the EPA regulation implementing Section 602 clearly incorporates a discriminatory effect or disparate impact standard.
In Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983), the U. S. Supreme Court held that it was appropriate to imply a private right of action on the part of plaintiffs to enforce Title VI and the EPA’s civil rights regulations implementing it. In short, the Court held that the Civil Rights Act allowed private suits based on allegations of intentional discrimination, but did not rule directly on whether such suits would be allowed to proceed if only discriminatory effects or disparate impact was alleged. The Supreme Court further clarified Guardians in Alexander v. Choate, 469 U.S. 287, 293 (1985), wherein it found that Title VI "directly reaches only instances of intentional discrimination," and that "actions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI." Id. at 292-94. Moreover, the Court in Alexander recognized that Title VI "delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficient significant social problems, and were readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts." 469 U.S. at 294.
Chester Residents: Third Circuit’s Ruling
On December 30, 1997, the United States Court of Appeals for the Third Circuit in a case of first impression, Chester Residents for Quality Living v. Seif, 132 F.3d 925 (3rd Cir. 1997), judgment vacated, 67 U.S.L.W. 3155, 119 S.Ct. 22 (August 17, 1998), held that private plaintiffs, Chester Residents Concerned for Quality Living, could bring a private civil action against the State Department of Environmental Protection under the discriminatory effect regulations promulgated by federal administrative agencies pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, et seq. Plaintiffs challenged the Department’s issuance of a permit that authorized the operation of a waste processing facility in the City of Chester, a predominantly black community. The private Plaintiffs contended that the state had already allowed five waste treatment facilities in their community since 1987, and only two in the rest of the county which was predominantly white. For that reason they sought to block the State Department of Environmental Protection from granting another permit for a waste treatment plant in their community.
Enforcement of Discriminatory Effect Regulations
The District Court rejected the claim and granted the Defendants’ Motion to Dismiss, holding that Plaintiffs did not have a private right of action to enforce the discriminatory effect regulations. On appeal, the Third Circuit recognized that this was a matter of first impression, and that under Guardians and Alexander, it was appropriate to imply a private right of action for the Plaintiffs to enforce Title VI and the implementing civil rights regulations. Indeed, eight other circuits had already addressed the fundamental question whether private citizens have a right to sue in such cases, and it appeared that the legal landscape was fairly consistent and settled in requiring proof of discriminatory intent as a prerequisite for maintaining such actions.
The Third Circuit found that Guardians and Alexander were not dispositive of the question of whether a private plaintiff could proceed under a disparate impact standard, and accordingly looked to Third Circuit precedent, primarily in Chowdhury v. Reading Hospital & Medical Center, 677 F.2d 317 (3rd Cir. 1982). Chowdhury dealt with the issue of whether a private plaintiff was first required to exhaust administrative remedies under Section 602 and its implementing regulations before bringing a suit directly under Section 601 of Title VI. The Court in Chowdhury held that while an aggrieved plaintiff was not required to exhaust administrative remedies, and may file a complaint with the funding agency, the individual "has no role in the investigation or adjudication, if any, of the complaint." 677 F.2d at 319, cited at 132 F.3d at 932.
While Chowdhury apparently barred a private right of action under the discriminatory effect/disparate impact regulations, the Third Circuit in Chester Residents disagreed with that conclusion, noting that while the regulations do not expressly provide for a significant role for private parties, that says nothing about whether implying a private right of action is appropriate or not. Moreover, this peripheral role for private plaintiffs, according to the Third Circuit, did not mean that the private plaintiffs were precluded from pursuing their claims under the regulations before initiating a direct action pursuant to their rights under Section 601 of Title VI. 132 F.3d at 932.
Implied Private Right of Action
In the absence of controlling Third Circuit precedent, the Court of Appeals applied a three-prong test for determining whether to imply a private right of action, the inquiry being
1. Whether the agency rule is properly within the scope of the enabling statute,
2. Whether the statute under which the rule was promulgated properly permits the implication of a private right of action, and
3. Whether implying a private right of action will further the purpose of the enabling statute.
132 F.3d at 933, citing Polaroid Corp. v. Disney, 862 F.2d 987, 994 (3rd Cir. 1988).
As to the first prong of this test, the Third Circuit concluded that the EPA’s discriminatory effect regulations satisfied the first prong of this test in light of Alexander’s holding, 469 U.S. at 293, that "actions having an unjustifiable disparate impact on minorities [can] be redressed through agency regulations designed to implement the purposes of Title VI."
With regard to the second prong of this test, whether the statute permitted the implication of a private right of action, the Third Circuit found "some indication in the legislative history" of intent to create a private right of action, and that implying a private right of action was consistent with Title VI’s legislative scheme.
Moreover, the Third Circuit found that the third prong of this test was satisfied, and that implying a private right of action would increase enforcement and "further the dual purposes of Title VI." 132 F.3d at 936.
Discriminatory Impact Alone
Finally, the Court turned to the critical issue of whether the plaintiffs could prevail simply by showing discriminatory impact, or whether they were required to show discriminatory intent in order to prevail in their environmental racism cause of action. The Third Circuit concluded that the private plaintiffs could maintain a private cause of action based on disparate impact, even in the absence of discriminatory intent, stating:
We hold that private plaintiffs may maintain an action under discriminatory effect regulations promulgated by federal administrative agencies pursuant to Section 601 of Title VI of the Civil Rights Act of 1964. 132 F.3d at 937.
The essence of the Third Circuit’s holding was that an environmental racism lawsuit brought by residents of Chester, Pennsylvania, a predominantly African-American community, based on their claim that the State of Pennsylvania had allowed a disproportionate number waste treatment facilities to be built in their part of the county, could be asserted by the private plaintiffs against the Pennsylvania Department of Environmental Protection.
Dismissal Based on Mootness
Defendants appealed from the Third Circuit’s decision. Much to the surprise of many who were monitoring this case, the United States Supreme Court granted the Defendants’ Petition for Writ of Certiorari on June 9, 1998. 66 U.S.L.W. 3777.
Defendants argued that the Third Circuit had improperly allowed private citizens to attempt to enforce in federal court EPA regulations that could only be enforced by the EPA itself. After cert was granted, a number of amicus briefs were filed, including one by the Public Interest Law Center of Philadelphia, which suggested to the Court that the case be dismissed for mootness because the permit in controversy had been withdrawn by the State Department of Environmental Protection. It was anticipated that the Supreme Court would address the issue of whether Congress intended to create a private cause of action in federal court simply by alleging a discriminatory effect in the administration of programs and activities of federally funded state or local agencies.
The Supreme Court agreed with the mootness suggestion. On August 17, 1998, it vacated the judgment and remanded to the Court of Appeals for the Third Circuit with instructions to dismiss, on mootness grounds. The case was rendered moot because the permit for the waste treatment facility challenged by the Plaintiffs was revoked in the summer of 1998, so that the subject waste treatment plant would not be built.
Continued Viability of Title VI
It has been noted that Title VI is a "crucial weapon in fighting environmental racism." J. Brienza, High Court Dismisses Appeal Over Private Lawsuits in Environmental Racism Case, 34 Trial 99 (September 1998).
A tough obstacle in such cases, according to UCLA Law Professor Erwin Chemerinsky, is proving discriminatory intent. The Third Circuit’s ruling in Chester Residents, if allowed to stand, would have enabled private plaintiffs not only to invoke Title VI to combat environmental racism, but would have freed them from the requirement of proving discriminatory intent, allowing such a cause of action to be maintained solely on the basis of disparate impact. As noted earlier, at the time the Supreme Court granted certiorari in this case, eight other circuits had already concluded that private citizens had a right to sue in such cases, albeit subject to a requirement of proving discriminatory intent.
One must remember what the Supreme Court did not do in declaring Chester Residents moot by reason of the withdrawal of the subject permit by the State Department of Environmental Protection. What it did not do was express any agreement or disagreement with the fundamental holding by the Third Circuit that private citizens can invoke Title VI to challenge governmental decisions on siting and permitting, relying solely on a showing of discriminatory effect or disparate impact. Indeed, allowing an environmental racism challenge to be predicated on disparate impact or discriminatory effect alone would lead to both short-term and long-term consequences for municipal and other local government bodies. And these would not necessarily be negative consequences. If a disparate impact basis for environmental racism claims were ultimately given judicial sanction, one could anticipate a direct impact on such traditionally governmental functions as allocation of resources, planning, budgeting and balancing of interests in the areas of zoning, land use, economic development, industrial recruitment, employment opportunities and the continued viability, health and safety of citizens, minority and non-minority alike.
The South Bronx Coalition for Clean Air v. Conroy
A recent environmental racism decision involving the planned development of Harlem River Yard in New York City’s South Bronx illustrates the rigorous evidentiary standard that the courts will apply in intentional discrimination cases, while suggesting that in an appropriate case some courts may allow a disparate impact/discriminatory effect claim to proceed. The decision is The South Bronx Coalition for Clean Air, Inc. v. Conroy, ___F. Supp. 2d ___, 1998 W.L. 575173 (S.D. N.Y. 1998).
Plaintiffs sought to enjoin the expansion of a solid waste transfer facility within the 96-acre Harlem River Yard on the ground that it would "create a situation in which minority residents of the Bronx suffer the noxious effects of garbage to a greater degree that the mostly white residents of Long Island."
In their intentional discrimination claim under Title VI, they alleged that the challenged actions and intergovernmental agreements relating to the expansion project and use of other parts of the site by the municipal transportation authority and others governmental agencies were not only "deliberate" and "specifically designed to protect white residents" but were part of an official policy "to site obnoxious environmental activity only in minority neighborhoods and to exclude such activities from neighborhoods occupied by white residents of the state." Id. at *5-6. The District Court dismissed this Title VI intentional discrimination claim because it contained only conclusory and general allegations, noting that Plaintiffs "have not even identified the dates, or the specific terms of, the alleged agreements which form the basis of this claim," id. at *6, and offered no other allegations in support of the claim.
The Plaintiffs also alleged a disparate impact claim under Title VI. In light of the Supreme Court’s recent decision to vacate and remand Chester Residents with instructions to dismiss, the District Court noted that there was a serious question as to whether the Plaintiffs may even bring a disparate impact cause of action under the federal regulations promulgated pursuant to Section 602 of Title VI. The court concluded that it was unnecessary to reach the issue of whether such a TitleVI claim could be asserted as a private right of action under Section 602, because the Plaintiffs’ allegations were insufficient as a matter of law to support even a prima facie case of disparate impact discrimination under Title VI. The only evidence Plaintiffs could muster was the following:
Noting that the Plaintiffs had offered no other evidence in support of their disparate impact claim, the District Court dismissed the claim, stating at *8:
Lacking from their submissions is any analytical comparison of the subject locations with regard to (1) racial and ethnic composition, (2) volume of waste transferred, (3) volume of waste generated, (4) costs of waste haulage, (5) environmental effects of waste haulage, or (6) health effects of waste haulage.
In so doing, the District Court cited New York Urban League, Inc. v. State of New York, 71 F 3d 1030, 1038 (2d Cir. 1995), in which the Second Circuit stated that a disparate impact claim under Title VI requires "a reliable indicator of disparate impact" and "an appropriate statistical measure" that takes into account all relevant bases of comparisons.
Despite the mixed message of Chester Residents, and perhaps because of it, the proponents of Environmental Justice and the concept of equitable environmental decisionmaking have become a lightning rod for criticism and environmental activism.
The Environmental Justice movement has EPA’s backing and is now incorporated into federal environmental policy, as illustrated by EPA’s Interim Guidance For Investigation of Title VI Administrative Complaints Challenging Permits, which opens with this assurance:
This interim guidance is intended to provide a framework for the processing by EPA’s Office of Civil Rights (OCR) of complaints filed under Title VI of the Civil Rights Act of 1964, as amended.... While this guidance is directed at the processing of discriminatory effects allegations, as a general proposition, Title VI complaints alleging either discriminatory intent and/or discriminatory effect in the context of environmental permitting will be processed by OCR under EPA’s Title VI regulations at 40 C.F.R. Part 7.
The EPA’s interim guidance is "intended to update the Agency’s procedural and policy framework to accommodate the increasing number of Title VI complaints that allege discrimination in the environmental permitting context." Noting that Title VI environmental permitting cases "may have implications for a diversity of interests, including those of the recipient, the affected community, and the permit applicant or permittee," the guidance incorporates EPA’s belief that "robust stakeholder input is an invaluable tool for fully addressing Title VI issues during the permitting process and informally resolving Title VI complaints when they arise."
Disparate Impact Claims Against Local Government
Lest there be any doubt about EPA’s intent to apply this policy to disparate impact claims under Title VI, including claims that may be asserted against local government, the interim guidance cuts to the chase:
Facially-neutral policies or practices that result in discriminatory effects violate EPA’s Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative. EPA awards grants on an annual basis to many state and local agencies that administer continuing environmental programs under EPA’s statutes. As a condition of receiving funding under EPA’s continuing environmental program grants, recipient agencies must comply with EPA’s Title VI regulations, which are incorporated by reference into the grants. EPA's Title VI regulations define a "[r]ecipient" as "any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient ...." Title VI creates for recipients a nondiscrimination obligation that is contractual in nature in exchange for accepting Federal funding. Acceptance of EPA funding creates an obligation on the recipient to comply with the regulations for as long as any EPA funding is extended. Under amendments made to Title VI by the Civil Rights Restoration Act of 1987, a "program" or "activity" means all of the operations of a department, agency, special purpose district, or other instrumentality of a state or of a local government, any part of which is extended Federal financial assistance. Therefore, unless expressly exempted from Title VI by Federal statute, all programs and activities of a department or agency that receives EPA funds are subject to Title VI, including those programs and activities that are not EPA-funded. For example, the issuance of permits by EPA recipients under solid waste programs administered pursuant to Subtitle D of the Resource Conservation and Recovery Act (which historically have not been grant-funded by EPA), or the actions they take under programs that do not derive their authority from EPA statutes (e.g., state environmental assessment requirements), are part of a program or activity covered by EPA’s Title VI regulations if the recipient receives any funding from EPA.
EPA’s Arsenal of Compliance Measures
The EPA interim guidance also sets out a "carrot and stick" policy for encouraging voluntary compliance, with appropriately escalating forms of agency action ranging from funding termination, litigation by the Justice Department and private lawsuits:
In the event that EPA finds discrimination in a recipient’s permitting program, and the recipient is not able to come into compliance voluntarily, EPA is required by its Title VI regulations to initiate procedures to deny, annul, suspend, or terminate EPA funding. EPA also may use any other means authorized by law to obtain compliance, including referring the matter to the Department of Justice (DOJ) for litigation. In appropriate cases, DOJ may file suit seeking injunctive relief. Moreover, individuals may file a private right of action in court to enforce the nondiscrimination requirements in Title VI or EPA’s implementing regulations without exhausting administrative remedies.
Environmental Insanity or A Survival Issue?
These policy initiatives have prompted Environmental Justice opponents like the U.S. Chamber of Commerce to label the EPA policy as "economic, social, and environmental insanity." The EPA’s New Reach, Nation’s Business, at 14 (October 1998)("If businesses can’t go into areas that need economic development and jobs the most, they’ll be left with no choice but to move to other areas, possibly overseas.")(quoting Thomas J. Donohue, President and CEO). Such criticism and the policy at which it is directed are fueled by a volatile mix of civil rights law and environmental law, as strange bedfellows with the field of land use law. The concept of Environmental Racism had received judicial recognition and, coupled with EPA’s policy guidance, has ignited concern that "this new application of the Civil Rights Act will open a new legal avenue that the EPA could use to disapprove emission, discharge, and waste permits." Id. In any event, 35 years have come and gone since Title VI of the 1964 Civil Rights Act was first put on the books, and as Georgetown. University Law Center Professor Richard Lazarus has observed, "It’s about time someone started moving the process." Id. Indeed, it appears that we are about to enter a new age of environmental activism, one that has already given birth to a Presidential Executive Order and clear policy guidance from EPA that is "new legal turf" as EPA Administrator Carol Browner has put it. The path to this new age has been cleared to an extent by a handful of judicial decisions along with numerous local political victories.
John Kyte, Director of Environmental Affairs for the National Association of Manufacturers, made this somber observation about the longevity of the environmental justice movement:
Some people believe this issue will die when Bill Clinton leaves office. I think that’s a short-sighted viewpoint. This movement has a lot of people around and behind it, and many of those people believe it is a survival issue. They are very, very committed. I think this is an issue that will be around for a very long time.
At the same time, we must not lose sight of the continuing need to develop and advocate the need for community-based environmental priorities and tradeoffs, nor should we pretend there are no practical, common sense limits on a grass roots environmental approach to social justice.
Benjamin E. Griffith
Vice-Chair, County & Municipal Special
Districts Division, IMLA
Co-Chair, Government Operations &
Liability Committee, ABA Section of
State & Local Government Law