Environmental Justice Still Doable Through Courts Despite Recent Supreme Court Decision
Rick Kearns, October 6, 1998 -- Even though the first environmental racism suit of it's kind in this country was declared moot this August by the U.S. Supreme Court, the right to seek redress through the courts remains.
In May of 1996, the Chester Residents Concerned for Quality Living (CRCQL) filed a complaint in a Federal Court in Pennsylvania accusing the state's Department of Environmental Protection of discrimination. CRCQL contended that by concentrating a variety of waste facilities in this black community that comprised only 8 percent of the total county population but contained 60 percent of all its waste facilities, the state created a "discriminatory effect" according to the plaintiffs since their blighted community was almost 70 percent African American.
This legal action garnered instant attention as it was the first such environmental racism lawsuit filed in the United States, giving the community a moment in the national spotlight through brief but widespread coverage.
In the next two years, the case wound it's way through the appeals process until the Supreme Court declared that the case against the state's DEP to be moot since the specific reason for the suit--the state's granting permission to Soil Reclamation Services (SRS) to construct and begin business in Chester--was a dead issue as SRS was denied their operations permit while the case was still on appeals.
So while the community plaintiffs expressed satisfaction at stopping the placement of the facility in their neighborhood, state officials managed to put a positive spin on the decision.
"We wanted to have a chance to argue the case before the Supreme Court on its merits," said Tim Reeves, spokesman for Gov. Ridge, at a press conference after the final court session. "... this accomplishes our basic goal, which is to have the [appeals] decision thrown out," Reeves said. What Reeves did not explain at the conference was that in declaring the case moot, the justices automatically vacated a ruling by an appeals court that had validated the residents right to sue the state. However, the vacating of the ruling did not change communities' rights to sue according to the activist leader from Chester and the group's attorney.
"The Supreme Court decision is not going to change anything and we'll continue to do what we've always done; and that is to protect ourselves," stated Zulene Mayfield, spokesperson for the CRCQL.
The group's attorney, Jerome Balter of the Public Interest Law Center of Philadelphia, explained that, "When the Supreme Court said it was moot, it meant that they didn't have anything to decide and this does not mean we couldn't bring a similar case."
"And it does not stop anyone from being able to sue," Balter noted.
Mayfield also stated that the Chester group is not planning another lawsuit at this time. She added, however, that CRCQL's organizing around the issue and the publicizing of their legal struggle has netted some positive results. "In October of '97, for the first time, the DEP denied a permit to Cherokee BioTechnology (whose application was for processing petroleum contaminated soil)," Mayfield recounted, "then they denied the permit for SRS in May of this year and then, most recently, they denied one this June to Ogborne Waste Removal to build a transfer station for construction and demolition debris."
"And the DEP has told us several times that, as a state agency, they could not issue permits for this city," she continued. "That was their official response but it's our belief that they looked harder to deny permits to waste facilities in Chester.
"We believe strongly that, as a result of our suit, the DEP got scared and finally started to do their damn job," Mayfield asserted. "And we made connections and we know we're not alone."
"There are a lot of people cheering for Chester right now because they're living the same lives," said Dr. Robert Bullard, an environmental sociologist and director of the Environmental Justice Resource Center which worked with the Chester group in gathering data. Dr. Bullard is also a member--along with Mayfield--of the EPA's National Advisory Council for Environmental Policy and Technology.
The Council's job is implementation of Title VI guidance for permits as it relates to communities of color, he explained, "and it was set up so that the things that have happened in Chester don't re-occur."
"We had our second meeting in Philadelphia (in February of this year) and our group toured Chester," Dr. Bullard said. "We were shocked and amazed that these facilities were located so close to people's homes. We counted ten trucks-per-minute passing in front of these homes and it's incredible that people have to tolerate these environmental stressors."
"Our hearts are with the citizens of Chester who have the right to confront the state and say 'our community is being discriminated against,'" he added. "People have the right to exercise their constitutional right for fairness and equal treatment."
Rick Kearns, rkearns@paonline.com
Aug. 20, 1998
Office of General Council
Memorandum
To: Carol M. Browner
Fred J. Hansen
On August 17, 1998, the Supreme Court dismissed as moot Seif V. Chester Residents Concerned for Quality Living, 1998 WL 477242, an important environmental justice case filed in federal district court under Title VI of the Civil Rights Act. The dismissal came at the request of the plaintiffs, a group of residents in Chester, Pennsylvania. They had sued the State's environmental agency over a permit for a soild waste facility in the city of Chester, which is a predominantly African American community. In their lawsuit, the plaintiffs alleged that the permit violated EPA's Title VI regulations because it would have racially discriminatory human health, environmental, and other effects on members of their community, which already is overburdened by polluting facilities. Unexpectedly, they asked the Supreme Court to end the case after learning that the State agency recently had revoked the permit for the proposed facility at the request of the permittee.
The issue before the Court was whether the plaintiffs had the right to bring their lawsuit under Title VI without alleging intentional discrimination. Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin in their programs and activities. While the statute itself bans intentional discrimination only, it allows federal agencies to adopt implementing regulations that also ban unintentional discriminatory effects. It is well settled that Title VI creates an implied right for a private party to sue a recipient for intentional discrimination. However, the Supreme Court has not squarely addressed the question of whether a private party may sue to enforce the agency's Title VI regulation that prohibits discriminatory effects -- a proposition that is widely accepted among the federal courts of appeals.
As a recipient of EPA grant fuinds, the State's environmental agency is subject to the requirements of Title VI and EPA's implementing regulations. In lieu of filing an administrative complaint in federal district court alleging that the permit at issue violated EPA's Title VI regulations that bans discriminatory effects. The district court granted the State agency's motion to dismiss the complaint. It ruled that, unlike intentional discrimination claims under Title VI itself, there is no private right of action to enforce EPA's regulation. The district court's dismissal of the case was reversed on appeal by the Third Circuit Court of Appeals. As a result, the State agency petitioned the Supreme Court to review the case, which the Court accepted for review in early June.
In their last filing, the plaintiffs requested that the Court dismiss the case as moot and suspend the briefing schedule while it considered the mootness question. They also argued that, if the Court dismissed the case, it should not vacate the appeals court's decision because the case became moot after that decision but before the Court had accepted the case for review. One day before the State agency's opening brief was due, the Court suspended the briefing schedule. Less than two weeks later, it summarily dismissed the case as moot and remanded it to the appeals court with instructions for dismissal. In doing so, the Court followed its usual practice of vacating the judgement below to preserve the rights of parties in future litigation. This leaves to a future case the Court's views on the important legal issue raised in this case.
If you have any questions about this case, please call me or have your staff call Tony Guadagon of my staff at (202) 260-1137.
cc: Assistant Administrators
Last modified: 26 January 1999
http://www.ejnet.org/chester/moot.html
United States Environmental Protection Agency
Washington, D.C. 20460
Subject: Supreme Court Dismissal of Environmental Justice Case
From: Scott C. Fulton
Acting General Cousel
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