'Environmental justice' movement looks to pivotal New Jersey cases.

On an average day, over 200 diesel trucks rumble through Waterfront South, a neighborhood in Camden, New Jersey, spewing exhaust fumes and damaging streets. They are on their way to a nearby cement-grinding facility, which churns large volumes of dust particles into the air. The stench from a local sewage-treatment plant keeps children off the local playground. Residents no longer sit and visit on their porches in the evening.

But Waterfront South--one of many poor, minority communities overwhelmed by heavy industry and pollution--is fighting back.

In April, a federal judge ruled that a suit brought by a citizens group against the New Jersey Department of Environmental Protection (NJDEP) can go forward. (S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., No. 01-702, 2003 WL 1877856 (N.J. Apr. 16, 2003).) The group claims that the agency intentionally discriminated against the community when it granted a permit to the Quebec-based St. Lawrence Cement Co. to build the cement grinding facility on public land adjacent to their neighborhood.

This case is one of several suits Camden residents have filed seeking to restore their quality of life. Community activists have also sued St. Lawrence Cement for the disruption caused by the truck traffic through their neighborhood, the city of Camden for allegedly distributing contaminated water, and the school district for failing to replace lead pipes in the water system.

Waterfront South has one of the highest concentrations of heavy-pollution-generating industry in the country. It is home to a power-cogeneration facility, a trash-to-steam incinerator, a regional sewage-treatment plant, four scrap-metal companies, and a petroleum-coke transfer station--as well as chemical companies, machine shops, and food-processing companies. It also bas two federal Superfund sites, including one contaminated with radioactive thorium, and 22 sites that the state has designated "contaminated." An NJDEP study discovered that the area had the state's highest recorded levels of fine particulates in the air.

Few neighborhood-specific studies have measured the health effects on Waterfront South. One study of the entire South Camden industrial area round that three in five residents reported respiratory problems such as asthma. A plaintiff expert testified, during preliminary hearings in this suit, that the self-reported asthma rate for Waterfront South residents is twice that of the rest of the city of Camden, and that the cancer rates among minorities are significantly higher in Camden County than in the rest of the state.

Waterfront South has about 2,100 residents. About 91 percent are minorities--63 percent are African-American, 28 percent Hispanic, and 9 percent non-Hispanic white. More than half the residents are at or below the federal poverty level.

Discrimination claims

The April ruling by Judge Stephen Orlofsky gave new life to the suit, which was filed in February 2001 by South Camden Citizens in Action (SCCIA). It was the third time Orlofsky had ruled that the group's claims could go forward.

The litigation began with SCCIA's effort to block construction of the cement-grinding plant, claiming that the NJDEP failed to assess whether the facility would have a disparate impact on the nearby minority neighborhood. St. Lawrence Cement intervened in the suit.

A 1994 executive order required federal agencies to develop specific policies to ensure that their activities did not have a disparate impact on minority communities in violation of Title VI of the Civil Rights Act of 1964. The EPA's subsequent regulations required entities receiving federal funds to assess whether their activities would be discriminatory. SCCIA's suit sought to enforce these regulations.

Orlofsky granted a preliminary injunction stopping construction of the plant and ruled that the plaintiffs' Title VI claims could go forward. (145 F. Supp. 2d 446 (N.J. 2001).)

Five days later, the U.S. Supreme Court ruled in Alexander v. Sandoval that there is no private right of action to enforce disparate-impact regulations under Title VI. (121 S. Ct. 1511 (2001).) This negated the South Camden residents' victory, but Orlofsky allowed the plaintiffs to amend their complaint and make their claims under [section] 1983, a federal law protecting against civil rights violations by state actors. Soon thereafter, he again granted the injunction and allowed the suit to proceed. (145 F. Supp. 2d 505 (N.J. 2001).)

On appeal, the Third Circuit reversed, holding that the plaintiffs have no private right of action under [section] 1983 because Congress did not intend to create private enforceable rights for disparate-impact claims. Therefore, regulations, such as the EPA's implementing Title VI, could not create such fights. (274 F.3d 771 (3d Cir. 2001).) The U.S. Supreme Court refused to hear the case.

In a company press release, St. Lawrence Cement said it "has complied with all applicable laws, including all environmental-permitting and health-based requirements, to operate its Camden facility." The company also insisted that its plant is good for the community, calling it "the largest investment of private capital in Camden in decades."

The Third Circuit's ruling "has broad policy and investment implications. It sends a positive signal for companies to continue to invest in distressed areas," said Newark, New Jersey, attorney Brian Montag, who represents St. Lawrence.

Olga Pomar, a lawyer with South Jersey Legal Services in Camden who represents SCCIA, disagrees. "The plant is located on state land. The company doesn't pay property taxes. Thousands of trucks beat up on the roads," she said. Because the plant is highly mechanized, it created only about 15 jobs. "All these pollution-generating facilities don't make the neighborhood attractive for businesses that may want to contribute to a better quality of life in the community," she added.

On remand to the district court, SCCIA continued its case, now alleging that the NJDEP intentionally discriminated under Title VI, the Fourteenth Amendment, and the Fair Housing Act, and that St. Lawrence Cement's plant was a public and private nuisance. Orlofsky's April ruling allowed the Fourteenth Amendment and private-nuisance claims to go forward.

"In support of their claim that the NJDEP defendants purposefully and invidiously discriminated against them on the basis of their race, color, and national origin," the judge wrote, "the SCCIA plaintiffs allege facts which, if proven true, would show not only that the operation of the cement-grinding facility would have a disparate impact upon the predominantly minority community of Waterfront South, but also that the NJDEP was well aware of the potential disproportionate and discriminatory burden placed upon that community and failed to take measures to assuage that burden."

Pomar said the Camden suit is the first in which a judge has agreed that a state agency's failure to comply with the Title VI regulations was a violation of the plaintiffs' civil rights. The Camden plaintiffs are now preparing to conduct formal discovery in preparation for trial.

A civil rights movement

The Camden case is just the most recent salvo in the "environmental justice" movement. The movement's goal is to eliminate "unequal enforcement of environmental, civil rights, and public health laws," said Robert Bullard of the Environmental Justice Resource Center at Clark Atlanta University.

Advocates cite studies showing that polluted areas are more likely to be in or near minority communities, but industry supporters insist that this circumstance is merely coincidence. They say companies choose their facility sites based on factors such as the availability of suitable land, access to transportation routes, and community needs.

Industrial facilities are often placed in and around cities, where resources and workers are more plentiful, they say. Minority communities are often located near industrial areas because nearby residential property values stay relatively low.

Critics are skeptical of this argument. They insist that racial discrimination leads to the siting of more industrial facilities in minority communities than in predominantly white areas.

The first case claiming environmental racism was filed in 1979 in Houston. The Northeast Community Action Group filed a class action under [section] 1983 to block the construction of a sanitary landfill in their neighborhood. The judge denied both the group's request for an injunction and the defendant's motion to dismiss the civil rights claims. (Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673 (S.D. Tex. 1979).)

Three years later, the environmental justice movement first gained national attention when an African-American community in Warren County, North Carolina, organized protests over the construction of a toxic landfill for PCB-contaminated soil. Over 500 people were arrested.

The incident prompted a study by the U.S. General Accounting Office, which found that three of four landfills in the Southeast were located near predominantly minority communities. In 2001, then-Gov. Jim Hunt, who had also been North Carolina's governor when the landfill was built in 1982, pledged $7 million in state funds and $600,000 from an EPA grant to clean up the site.

In 1997, a group in Chester County, Pennsylvania, filed the first suit claiming environmental discrimination under Title VI regulations. It sued the state Department of Environmental Protection, alleging racial discrimination in the granting of a permit to build a waste facility. The district court dismissed the case, but the Third Circuit restored it, ruling that private individuals can bring discrimination claims to enforce Title VI regulations.

In a first-impression ruling, the court round that "there is some indication in the legislative history . of an intent to create a private right of action." (Chester Residents Concerned for Quality of Living v. Seif, 132 F.3d 925 (3d Cir. 1997).) The U.S. Supreme Court agreed to hear the case, but then ruled the issue moot because the developer had abandoned the project.

More Camden suits

Now activists say another important step has been taken in the suit by South Camden Citizens in Action. And at least three other suits over the area's environmental problems are pending:

* Residents of the Terraces, a group of homes in Waterfront South, have sued St. Lawrence Cement over the excessive truck traffic through their neighborhood.

The cement-grinding facility processes about 850,000 tons of granulated blast-furnace slag--a by-product of iron manufacturing--each year. Slag arrives by boat, then is trucked three miles from the port to the cement plant. The trucks' daily trip takes them directly through the residential area of Waterfront South and the Terraces, allegedly causing excessive pollution, noise, and damage to neighborhood streets.

The residents' suit alleges "ultrahazardous activity," negligence in locating and operating the cement plant, a reduction of their property values, and disparate impact under the New Jersey Constitution. (Steinmacher v. St. Lawrence Cement Co., No. L-5600-01 (N.J., Camden County Super. Ct. filed Aug. 31, 2001).)

* Another group of Camden residents--not limited to Waterfront South--have filed a class action against the city, alleging that it distributed contaminated drinking water from 1974 to 1998. The defendants include over a dozen local industrial facilities that the plaintiffs claim contributed to the contamination. (Harris v. Advance Process Supply Co., No. L-03815-02 (N.J., Camden County Super. Ct. filed May 23, 2002).)

* A third suit, in federal court, claims that the Camden City Board of Education violated the federal Lead Contamination Control Act and the Sale Drinking Water Act by failing to disseminate information regarding lead levels in the school water system. The plaintiffs say several schools still have lead pipes, and the water in the school system is unfit for consumption. The claims also include violation of [section] 1983 and the New Jersey Environmental Rights Act. (Camden City. Recovery Coalition, Inc. v. Camden City Bd. of Educ. for Pub. Sch. Sys., No. 03CV1073 (JEI) (D.N.J. filed Mar. 12, 2003).)

Attorney Mark Frost of Philadelphia, who represents the plaintiffs in all three suits, said they are in various pretrial stages. He recently argued for a temporary restraining order against the Camden City Board of Education that would require it to turn off all drinking fountains and water sources fed by lead pipes and provide potable water to the students.

Turning point

The Camden litigation is being watched closely by many involved in the environmental justice movement. The cases may prove pivotal in determining which federal and state laws citizens can use to enforce environmental regulations and keep their neighborhoods clean.

Pomar believes they will succeed under the federal civil rights laws. "Visualize a neighborhood in which 6 percent of the population is non-Hispanic white, compared to 75 percent of the county. This is a poor community within a larger affluent area," she said. "The neighborhood already has a power plant, a sewage-treatment plant, 20 scrap-metal recycling facilities, thousands of diesel trucks spewing fumes in this neighborhood, and two Superfund sites. But the [NJDEP] didn't take any of this into account when issuing the permit.

"The agency cannot look at the permit application in a vacuum. It simply did not consider how this would disproportionately burden this already overburdened neighborhood."