Round Three: Claims for Intentional Discrimination, Private Nuisance Survive in South Camden Environmental Justice Case
August 29, 2003
Two years ago, residents of a South Camden neighborhood sued the New Jersey Department of Environmental Protection (NJDEP) to stop a proposed cement grinding factory, alleging that NJDEP had illegally discriminated against them in its decision to issue permits for the plant. The case has already been to the Third Circuit once, and another decision by the district court was effectively overruled by a Supreme Court decision just five days after it was issued. The case took another turn in April. In his third published opinion in the case, U.S. District Stephen M. Orlofsky held that the plaintiffs’ complaint alleged sufficient facts to state a claim for intentional discrimination under Title VI of the Civil Rights Act and the Equal Protection Clause and a claim for private nuisance. At the same time, Judge Orlofsky dismissed the plaintiffs’ claim under the Fair Housing Act and their claim for public nuisance. See South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 254 F.Supp.2d 486 (D.N.J. 2003).
Judge Orlofsky’s decision is just the latest chapter in a saga that reaches back five years and has already generated two previous opinions by Judge Orlofsky and an opinion from the Third Circuit. As reported previously in E-InSites, the controversy began in 1998, when the St. Lawrence Cement Company initiated plans to construct and operate a processing plant in the Waterfront South district of Camden, a poor and predominantly African-American and Hispanic neighborhood that was already home to numerous contaminated sites and industrial facilities. The St. Lawrence plant required air emission permits from NJDEP, which were issued in October 2000. The plaintiffs, South Camden Citizens in Action and individual residents of Waterfront South, sued NJDEP, alleging that NJDEP had intentionally discriminated against them in violation of Section 601 of Title VI of the Civil Rights Act (which prohibits intentional discrimination by state agencies that, like NJDEP, receive federal funds) and that the operation of the St. Lawrence plant in accordance with NJDEP’s permits would have a disparate adverse impact on them, in violation of Section 602 of Title VI (pursuant to which EPA has promulgated regulations that also prohibit “disparate impact” discrimination, even if it is not intentional). St. Lawrence intervened as a defendant.
Judge Orlofsky handed the plaintiffs a short-lived victory in April 2001, when he granted their request for a preliminary injunction and held that Section 602 (which authorizes regulations that implement Section 601) and EPA’s “disparate impact” regulations promulgated under Section 602 contained an implied private right of action. Judge Orlofsky remanded the matter to NJDEP for a Title VI analysis. See South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F. Supp. 2d 446 (D.N.J. 2001).
Just five days later, the Supreme Court knocked out the legal underpinnings of the district court’s opinion. In Alexander v. Sandoval, 523 U.S. 275 (2001), the Court held that Title VI did not create a private right of action to enforce regulations promulgated under Section 602. Neither the plaintiffs in Sandoval nor the Court’s opinion, however, addressed the question whether Section 1983 provided an avenue for enforcing regulations promulgated under Section 602. (Section 1983 authorizes suits at law or in equity against any person who, under color of state law, deprives another person of “any rights . . . secured by the Constitution or laws” of the United States. 42 U.S.C. Section 1983.) Judge Orlofsky thus allowed the plaintiffs to amend their complaint to add a claim to enforce Section 602 under Section 1983. Shortly thereafter, the plaintiffs had their second apparent victory. In a supplemental opinion and order continuing the original injunction, Judge Orlofsky found that the plaintiffs’ first amended complaint stated a claim against NJDEP under Section 1983 for violating Section 602 and EPA’s implementing regulations by failing to consider the potentially discriminatory adverse impact of its decision to permit operation of the St. Lawrence plant. See South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F. Supp. 2d 505 (D.N.J. 2001).
St. Lawrence appealed to the Third Circuit, which dealt the plaintiffs another loss. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001), reh’g denied, 33 Env’t Rep. (BNA) (3d Cir. Jan. 15, 2002), the Third Circuit closed the door that had been left open in Sandoval. Over a dissent from Circuit Judge McKee, Circuit Judges Ambro and Greenberg held that Judge Orlofsky had erred in finding that EPA’s regulations created a right enforceable via Section 1983.
After the remand of the case to the district court, the plaintiffs sought and were granted to leave to amend their complaint a second time. This time, they added claims for public and private nuisance, so that the case was no longer simply an environmental justice case, but now included more traditional environmental claims. Altogether, the second amended complaint contained six counts: intentional discrimination in violation of Section 601; two counts alleging disparate impact and intentional discrimination in violation of EPA’s regulations, Section 1983, and the Equal Protection Clause; a count asserting a violation of the Fair Housing Act due to the alleged diminution in the quality and quantity of housing in South Camden as a result of the decision to grant St. Lawrence its permits, with a discriminatory impact on the basis of the residents’ race, color, and national origin; and counts for private and public nuisance based on the emissions from the plant and from 80,000 delivery trucks associated with the plant each year.
NJDEP and St. Lawrence moved to dismiss the second amended complaint in its entirety, arguing that none of the counts stated a claim upon which relief could be granted. The defendants bore a heavy burden: Judge Orlofsky could dismiss a given claim only if he concluded “beyond doubt” that there was no set of facts alleged which, if proven, would entitle the plaintiffs to relief on that claim.
The plaintiffs conceded that Sandoval and the Third Circuit’s earlier opinion compelled dismissal of their disparate impact claims based on EPA’s regulations and Section 1983. Judge Orlofsky proceeded to deal with the plaintiffs’ remaining claims: (1) intentional discrimination in violation of Section 601 and the Equal Protection Clause and Section 1983; (2) discriminatory impact in violation of the Fair Housing Act; and (3) private and public nuisance. He granted the defendants’ motion with respect to the Fair Housing Act claims and the public nuisance claim. With respect to the former, Judge Orlofsky found an insufficiently close connection between the defendants’ alleged conduct and any possible effect on the plaintiffs’ ability to obtain housing in South Camden. Nor did the NJDEP’s responsibilities regarding environmental protection turn it into the kind of agency whose provision of services in connection with housing would bring it within the ambit of the statute.
Judge Orlofsky dismissed the public nuisance claim because of the comprehensive regulation under federal and state law of the very conduct that was alleged to constitute the nuisance, and the affirmative sanctioning by the state of that conduct through the issuance of the permits. These decisions by the legislature and NJDEP effectively transformed what might otherwise have been a public nuisance into a lawful activity. Under such circumstances, Judge Orlofsky wrote, “Plaintiffs cannot state a claim of public nuisance.”
A different analytical framework applied, however, to the plaintiffs’ claim of private nuisance. Unlike a public nuisance, which is an unreasonable interference with a right common to the general public, a private nuisance consists of an invasion of an individual’s interest in the private use and enjoyment of his or her land. To be actionable, the interference must be both unreasonable, in light of the parties’ conflicting interests, and significant. St. Lawrence argued that the claim cold not stand because the plaintiffs had not alleged that its operations violated the permits, and because its operations could not cause them significant harm. Judge Orlofsky rejected both arguments. First, under New Jersey law, a private nuisance may exist even where the offending activity complies with applicable government regulations. Second, arguments about the significance of the harm were inappropriate at this stage of the proceedings, where the court was considering (and had to accept as true) only the allegations of the complaint. Under that standard, the second amended complaint, which alleged increased levels of pollution, noise, vibrations, and dust that threatened health and safety, caused property damage, and “lower[ed] the self-esteem of plaintiffs,” stated a claim for private nuisance.
The most controversial and potentially groundbreaking claims in the second amended complaint, of course, alleged intentional discrimination against the plaintiffs and other residents of South Camden on the basis of their race, color, and national origin, in violation of both Section 601 of Title VI and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Section 1983. To make out a claim under either the statutory or the constitutional provision, a plaintiff must allege not simply disparate impacts, but “purposeful, invidious discrimination.” Direct, clear evidence of intent is hard to come by, so circumstantial evidence is often critical. Such evidence often concerns disparate impacts, but the plaintiff must allege and prove more. For example, where the government was implementing a facially neutral policy in such a way that there were adverse effects on an identifiable, protected group, the plaintiff must show that the government acted as it did because of, and not merely in spite of, those adverse effects.
While disparate impact alone cannot show intentional discrimination, it can provide a useful starting point for the analysis, and may constitute circumstantial evidence of intent. Besides disproportionate impacts, other factors that might point to discriminatory intent include the historical context of the decision, departures from normal procedures or substantive standards, and the foreseeability of the effects of the decision.
The plaintiffs did not allege that NJDEP issued the permits to St. Lawrence because the residents of South Camden are predominantly African-American and Hispanic. However, they did allege that NJDEP knew or was deliberately indifferent to the disparate impact that the siting of the St. Lawrence plant would have on the residents. Furthermore, in addition to disparate impact and knowledge, the second amended complaint also alleged that NJDEP has historically “engaged in a statewide pattern and practice of granting permits to polluting facilities” to a greater extent in minority communities than in mostly white communities. This was sufficient, according to Judge Orlofsky, to state a claim for intentional discrimination. The language of his opinion, however, betrays some uncertainty about the validity of the claims. “[A]t this early stage of a recently remanded case,” he wrote, “where a record has not yet been developed, the allegations contained in the Second Amended Complaint suggest that the NJDEP Defendants may have intended invidious discrimination against African-American and Hispanic residents of Waterfront South by granting various permits to [St. Lawrence], and thereby concentrating a disproportionate amount of air pollution in an already environmentally challenged community” (emphasis added).
Judge Orlofsky also rejected the defendants’ argument that an intentionally discriminatory motive could not be inferred from the allegations of the second amended complaint because the air quality criteria that guided NJDEP’s decision “are uniformly applicable throughout New Jersey and even nationally.” While that may be true, such an argument would have to wait, said Judge Orlofsky, until the parties have developed a evidentiary record that would allow the defendants to file a motion for summary judgment. On a motion to dismiss, he wrote, it is inappropriate to argue the merits of the case.
Despite the gallons of ink spilled in four published opinions, the case is still at a very preliminary stage. Sandoval and the Third Circuit’s earlier opinion eliminated some of the plaintiffs’ claims, Judge Orlofsky dismissed several others, and two sets of claims remain. Two years of legal wrangling, however, have not established anything about the merits of the plaintiffs’ remaining claims. Judge Orlofsky’s most recent decision simply means that if the factual allegations in the second amended complaint are true, the plaintiffs could prevail. Moreover, even though it does not finally resolve the plaintiffs’ remaining claims, it would not be surprising to see the Third Circuit consider an appeal of Judge Orlofsky’s decision. In a case where the plaintiffs have already obtained two favorable decisions from the district court, only to see higher courts take those victories away, no decision seems final.