LENGTH: 2888 words
HEADLINE: A RACE-BASED WASTE CASE
BYLINE: GERALD H. YAMADA
A recent 3rd Circuit decision would allow Title VI of the Civil Rights Act of 1964 to be used under the rubric of "environmental justice" to challenge local land use decisions and private business activities that otherwise could not be reviewed under state or federal laws. The Supreme Court should grant certiorari and reverse this potentially far-reaching precedent. Seif v. Chester Residents Concerned for Quality Living, 132 F.3d 925, petition for cert. filed, No. 97-1620 (March 30, 1998).
The predominantly African-American residents of Chester, PA, filed an action under Title VI alleging that the Pennsylvania Department of Environmental Protection (PADEP) discriminated against them when it issued a waste permit to Soil Remediation Services Inc. to operate a contaminated soil treatment facility in Chester. They alleged that, since 1987, PADEP had granted five waste facility permits for sites in Chester (with a total capacity of 2.1 million tons of waste per year), while granting only two permits (total capacity 1, 400 tons a year) for sites in the rest of Delaware County.
Section 601 of Title VI provides that "no person . . . 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." The Supreme Court has ruled that there is a private right of action under Section 601, but a private plaintiff must show an intent to discriminate. The element of intent has made it very difficult to bring a successful action under Section 601.
Section 602 authorizes federal agencies to adopt regulations to implement Section 601. The 3rd Circuit reads this as authorizing federal agencies to adopt standards under which a federal agency does not have to prove intent for a finding of noncompliance under Title VI. The Environmental Protection Agency has promulgated such a standard, which provides in part that "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, color, national origin, or sex." 40 C.R.F. Section 7.35(b).
By ruling that an implied private right of action exists under Section 602, the 3rd Circuit would allow private plaintiffs to bring a private action under the EPA's effect test without having to show a discriminatory intent or to exhaust administrative remedies by filing an administrative complaint with the EPA. This is the issue that PADEP is asking the Supreme Court to review.
But there is a more far-reaching aspect to the 3rd Circuit decision which PADEP has not raised in its petition. The 3rd Circuit's decision impliedly expands the definition of a "program or activity" covered by Title VI to include private facility siting and local land use decisions made by a permit applicant and a local land use authority. The only "program or activity receiving federal financial assistance" in this case is PADEP, and PADEP's only connection is its approval of a pollution control permit to operate a waste facility. The local land use decision at issue--the location of a soil treatment facility--was made by the city of Chester. PADEP has no authority to review this decision as a part of it approval or disapproval of the permit application.
PADEP has authority to issue or deny applications for permits to operate waste processing facilities under Pennsylvania's Solid Waste Management Act (SWMA). PADEP receives federal funding from EPA to operate Pennsylvania's waste programs pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Section 6901, et seq. Neither SWMA nor RCRA have land use restrictions or criteria.
PADEP's permitting decisions are governed by regulations promulgated under SWMA. These regulations do not include any racial criteria for evaluating permit applications. RCRA and EPA regulations do not have any racial criteria for evaluating permit applications.
PADEP does not play any role in determining the site of facilities for which environmental control permits are sought. The city of Chester is the local land use authority. The complaint of the Chester residents recognizes that PADEP's "waste facility permit application review process does not take into consideration the racial composition of the community or the environs of the proposed waste facility locations."
The Chester residents claim that, by granting the permit, PADEP violated the EPA's discriminatory effect regulations promulgated pursuant to Section 602 of Title VI. The District Court dismissed this claim by finding that there is no private right of action under the EPA's discriminatory effect regulations, but the 3rd Circuit reversed.
The 3rd Circuit decision, while purporting to interpret Section 602 of Title VI, actually creates a new federal common law rule. It would allow private parties to challenge pollution control permits against land use or racial criteria that are not enumerated in applicable environmental statutes and for which no standards have been promulgated by either PADEP or the EPA. And it would allow federal courts and private parties to second-guess PADEP's permit decisions, adopted pursuant to required state and EPA procedures against undefined standards, and would have the District Court fashion the appropriate remedies.
The 3rd Circuit decision would deny facility owners or operators fair notice as to the requirements with which they are expected to comply. It could impose potentially retroactive liability on facility owners and operators who have relied in good faith on permit terms and conditions in conducting their operations and making business decisions. It would extend the permit authority of PADEP and the EPA to reach local land use decisions that neither agency has any statutory authority to review.
In sum, the 3rd Circuit impliedly made a policy choice that state environmental laws should include land use and racial criteria to evaluate permit applications. A federal court is not authorized to make this policy choice. The Supreme Court has spoken clearly on the lack of authority of the federal courts to impose more stringent standards than is required by federal or state law. See City of Milwaukee v. Illinois, 451 U.S. 304 (1981); Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). The 3rd Circuit decision threatens to erode the comprehensive regulatory scheme enacted by Congress and the Pennsylvania legislature by allowing federal courts to substitute its judgments for those of the EPA and PADEP by second-guessing pollution control permit decisions with the use of criteria not enumerated in environmental laws. The 3rd Circuit cannot to use Section 602 regulations as a means to add new criteria to federal and state environmental laws. See American Forest and Paper Association v. EPA, 137 F.3d 291 (5th Cir. 1998).
Moreover, the 3rd Circuit decision misapplies the law for determining when it is appropriate to imply a private right of action. The 3rd Circuit used a three-prong test it established in Polaroid Corp. v. Disney, 862 F.2d 987 (1988), requiring a court to inquire: (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.
The 3rd Circuit concluded that there is no question that the EPA's discriminatory effect regulations satisfies the first prong. In addressing the second and third factors, the court considered the factors set out by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975). The Cort factors are: (1) Is the plaintiff "one of the class for whose especial benefit the statute was enacted, "--that is, does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And (4) Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law?
As to the first factor--whether Chester residents are one of the class for whose especial benefit the statute was enacted--the 3rd Circuit summarily concluded that the Chester residents satisfied this factor. No explanation is given, and the finding is not contested by PADEP. The court failed to distinguish between activities of PADEP -- which is a "program or activity receiving Federal financial assistance" -- and those of a local land use authority or the applicant for the permit. The latter are not recipients of the RCRA financial assistance received by PADEP and, as such, are not subject to the EPA regulation forbidding activities that have the effect of racial discrimination. PADEP is subject to the regulation, but PADEP does not play any role in determining the site location of the facilities for which permits are sought; that decision was made by the city before the permit application was submitted to PADEP, and cannot be second-guessed by PADEP. Hence, the allegedly discriminatory siting decision that the Chester residents are challenging cannot be fairly attributed to PADEP's programs or activities.
The mere fact that PADEP approved a waste permit does not sufficiently implicate the state in any purported discriminatory effects that may be attributed to the city's land use policies. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). If the alleged discrimination was not caused by an entity covered under Title VI, the 3rd Circuit should have explained why those claiming to have suffered that discrimination are within the class of especial benefit for which Title VI was enacted.
The 3rd Circuit also summarily accepted the fourth Cort factor -- whether the cause of action is one traditionally relegated to state law in an area basically the concern of the states. The court found this factor "irrelevant because Title VI is federal law." The 3rd Circuit failed, however, to recognize that what is at issue is a challenge to a local land use policy. Land use is a local concern and is not regulated by SWMA or RCRA.
In analyzing the second Cort factor--whether there is any indication of legislative intent to create a private right of action--the 3rd Circuit improperly used statements made by members of Congress, a House committee report, and congressional hearing testimony as legislative history to support a private right of action. These purported legislative history references were made more than 20 years after Section 602 was enacted. They relate to Congress' consideration of a bill to broaden the definition of the term "program or activity" as used in Title VI in response to the Court's decision in Grove City College v. Bell, 465 U.S. 555 (1984), which narrowly construed the term. The legislative history of Section 602 of Title VI is void of explanatory statements contemporaneous with its passage. Since the congressional materials examined by the 3rd Circuit were produced after Section 602 was enacted, the court should not have accepted them as an accurate expression of Congress' intent to create an implied private right of action.
As to the third Cort factor--whether it is consistent with the underlying purposes of the legislative scheme to imply a private right of action--the 3rd Circuit decision did not consider all the requirements in Section 602, and, to the extent it considered them, the court misconstrued them. Section 602 specifies only two remedies that may be imposed on noncompliance with any Section 602 requirement: (1) terminating federal funds or (2) any other means authorized by law. Section 602 goes on to provide that no such action shall be taken until the federal agency has attempted to secure compliance by voluntary means and that no funds shall be terminated until the federal agency files a written report with the appropriate committees of the House and Senate. No such action shall become effective until 30 days have elapsed after the filing of such report.
The 3rd Circuit considered the purpose that the Section 602 requirements serve is not as significant in private lawsuits, where the potential remedy does not include the result (i.e., termination of funding) at which Congress directed the requirements. Hence, in reaching this conclusion, the court has read out of Section 602 the procedural safeguards that have been statutorily created for the benefit of recipients of federal assistance.
As PADEP rightly points out in its petition, only a federal agency can carry out the safeguards specified in Section 602. Hence, implying a private right of action would be inconsistent with the legislative scheme of providing the procedural safeguards that only a federal agency can provide to recipients of federal assistance.
Finally, in addressing the third prong of its test--whether implying a private right of action will further the purpose of the enabling statute--the 3rd Circuit concluded that this prong is satisfied by agreeing with the United States' amicus position that a private right of action will increase enforcement because the "EPA itself lacks sufficient resources to achieve adequate enforcement." A better principle, however, is enunciated in Davis v. United Air Lines Inc., 662 F.2d 120 (2d Cir. 1981), where the 2nd Circuit reasoned that while lack of executive resources to enforce an act of Congress is regrettable, it is hardly the judiciary's role to redress that lack by inferring a private right of action as a judicial remedy. The 2nd Circuit found no private right of action under Section 503 of the Rehabilitation Act.
The 3rd Circuit also should have considered whether Congress has waived the states' sovereign immunity under the 11th Amendment to the extent of allowing a private right of action under Section 602. In Section 1003 of the Civil Rights Act, Congress waived sovereign immunity for suits against the states for civil rights violations under enumerated civil rights laws, including Title VI, as well as against the federal government. Section 1003 also provides that in a suit against a state remedies are available "to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State."
Yet in Lane v. Pena, 518 U.S. 187 (1996), the Supreme Court limited Section 1003. As a part of its reasoning, the Court noted that a waiver of the federal government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied. This reasoning should be equally applicable to Congress' waiver of the states' sovereign immunity. Based on the Court's opinion in Lane v. Pena, Section 1003 may have limitations as to Congress' waiver of the states' sovereign immunity.
Moreover, Section 602 provides only two remedies, either of which can be pursued only by the federal government. The limited remedies authorized by Section 602 lend further support that Congress intended only for federal agencies to bring suit under Section 602 and, therefore, did not intend to waive the states' sovereign immunity to allow for private rights of action to enforce a federal agency's discriminatory effect regulations. The 3rd Circuit should have been asked to consider this constitutional question.
The 3rd Circuit seriously misapplied the Cort factors and its own three-prong test. The 3rd Circuit decision creates a private right of action based on rules of construction and the exercise of judicial authority that are inconsistent with the Supreme Court's decisions and those of other U.S. Courts of Appeals. By finding a private right of action on the facts before it, the 3rd Circuit has impliedly expanded Title VI to allow PADEP, the EPA, and the federal courts to review local land use decisions and to fashion remedies for which they have no authority. The Supreme Court should grant PADEP's petition so that the Court can review this far-reaching aspect of the 3rd Circuit decision.
Gerald H. Yamada is of counsel to the D.C. office of Paul, Hastings, Janofsky & Walker. He was principal deputy general counsel of the Environmental Protection Agency from 1982 to 1995, serving as acting general counsel for extended periods in 1985, 1989, and 1993.
Last modified: 26 January 1999