Protecting the right to clean living: in poor and minority neighborhoods, many homes are tainted with pollution. The result: illness and declining property values. Here's how one community is fighting back.

The "environmental justice" movement was born of the recognition that poor people and racial minorities encounter environmental hazards particular to their immediate surroundings. (1) African-American children face significantly higher rates of lead poisoning, in part because they frequently live in older, deteriorating homes with lead paint and absentee landlords. (2) Latino farmworkers are regularly exposed to unacceptable levels of pesticides. (3) Disproportionate numbers of poor people live near dangerous polluters like the petrochemical plants lining "Cancer Alley" along the Mississippi River. (4) Compounding the problem, industries are hit with significantly smaller fines for violations of environmental regulations committed in poor communities. (5)

Trial lawyers have long been involved in efforts to compensate the victims of these harmful patterns, usually using traditional common-law damages claims. Toxic tort cases have produced several innovations in the common law, including the remedy of medical monitoring. (6)

During the 1980s and 1990s, environmental justice activists opened another legal front in the battle. They focused on the tendency of government agencies to permit "siting" of the most hazardous industrial activities in communities that are environmentally vulnerable and lack political clout. Ultimately, these activists forced government authorities to recognize the problem.

The EPA endorsed the principle of envirtal justice The agency established it as a cornerstone of federal policy that "no group of people, including racial, ethnic, or socioeconomic groups, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies." (7)

Even more significant, the agency issued regulations under Tide VI of the Civil Rights Act of 1964, (8) providing that recipients of federal funding (including most state environmental protection agencies) "shall not choose a site or location of a facility that has the purpose or effect of ... subjecting [individuals] to discrimination under any program or activity ... on the grounds of race, color, or national origin or sex." (9)

These actions kindled the hope that environmental justice would become a civil right enforceable in the federal courts. But that hope has faded in the wake of a slow, steady retrenchment by the courts and in the enforcement philosophy of the federal government.

Most famously, private remedies such as medical monitoring, which environmentalists once hoped would be available under the strict liability standards of the Superfund law, (10) have been curtailed or eliminated. (11) Remediation by the federal government itself has been virtually eliminated due to Congress's failure to reauthorize the industry taxes that provided the funding for all such Superfund activity. As efforts to seek statutory and regulatory remedies stalled, the victims of environmental injustice have turned once again to common law approaches. The citizens of Camden, New Jersey, are a significant case in point.

The Camden community

Camden is the second-poorest city in the United States. In 2000, its population was 79,904, of which 53.3 percent were African-American and 38.8 per. cent were Latino. (12) Nearly a third of all families lived below the poverty level. (13)

During World War II and the years immediately following, Camden's economy expanded. Large employers, many with major defense contracts, attracted thousands of workers. After the war, these industries continued to provide employment as they converted to successful peacetime production or took on new contracts related to the Cold War.

But the city's largely unregulated growth, accompanied by a great influx of ethnically diverse workers, led to overpopulation, pollution, and racial tension. Nearly all of Camden's industrial and residential land was developed. Most of the available housing was old and overcrowded. Industrial and residential waste polluted the water and air. The city lacked social services to deal with the larger, more multicultural postwar population. (14)

By the early 1970s, Camden had become one of the poorest, most racially polarized communities in the United States. Manufacturing jobs were steadily moved from the city, and the residents who were left behind, most of them minorities, fell into poverty.

By the late 1990s, two major environmental justice issues had surfaced in Camden. First, the South Jersey Port Corp.--owner of industrialized land adjacent to the Camden neighborhood known as Waterfront South--decided to lease the property to the St. Lawrence Cement Co. (SLC). The company built a plant to grind and process industrial waste, in the form of 850,000 tons of blast furnace slag and 16,500 tons of gypsum annually, to be sold as a cement additive.

Then, in late 2001, the EPA announced its conclusion that, for more than 20 years, more than 50,000 Camden residents served by the public water-distribution system had been exposed to hexavalent chromium and volatile organic chemicals (VOCs), substances that have been linked to cancer and other serious illnesses. (15)

A state investigation indicated that the pollution originated from several manufacturing, refining, and plating facilities, as well as from a municipal landfill located nearby.

Waterfront South's judicial odyssey

The population of Waterfront South is about 2,100, of which 41 percent are children and 91 percent are minorities. The residents have a high rate of asthma and other respiratory ailments. (16)

Waterfront South already was a popular location for industrial facilities, including a "trash to steam" plant, a gas-fired power plant, and two Superfund sites. The EPA was investigating four sites within a half mile of SLC's facility for the possible release of hazardous substances. The New Jersey Department of Environmental Protection (DEP) had identified 15 contaminated sites in Waterfront South, including a radiologically contaminated General Gas Mantle Co. site and a Martin Aaron, Inc., site last used as a drum-recycling operation that resulted in chemical and heavy metal contamination.

Camden citizens voiced their concerns during a public-comment period after the DEP issued draft permits under state law to the SLC plant in July 2000.

Residents and community leaders told state authorities that they believed the plant would aggravate an already polluted environment, exacerbate public health problems, disrupt their once-pleasant neighborhood with dust and noise, and lower property values to virtually nothing. The state made no changes in the proposed permits based on the public comments.

Convinced that their issues had been ignored as the approval process proceeded, the Waterfront South residents, organized as South Camden Citizens in Action, filed an administrative complaint with the EPA's Office of Civil Rights (OCR). They asserted that the DEE as a state agency receiving federal funding, had violated Title VI by siting the waste-processing facility in their neighborhood. When neither the EPA nor its OCR acted on their complaints, the citizens went to federal court.

In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, the court construed the EPA regulations promulgated under Title VI as mandating the "nondiscriminatory" siting of industrial facilities. (17)

The court recognized the existence of an implied private right of action under Title VI, and considered whether the plaintiffs could prevail on a disparate-impact theory derived from the regulations, notwithstanding the fact that the defendant agency had exhibited no overtly discriminatory intent. It concluded that a disparate-impact case could be made, and in fact had been made by the Camden plaintiffs.

They could prove, among other things, that the DEP had made its siting decision without sufficiently considering the disproportionate number of "pollutant-producing facilities" already in the neighborhood, or the nature and number of existing health conditions in the Waterfront South community. (18)

Thus, the mere assertion that the St. Lawrence facility's emissions levels might meet federal permit standards would not defeat the claim that the incremental health risks it represented would have an illegally adverse effect on a poor, minority community already in poor health.

The decision thrilled Camden's leaders and activists. The court enjoined any operations at the SLC plant and directed the state agency to make "appropriate findings consistent with this opinion" within 30 days. (19) The plant's start-up was conditioned on a properly grounded finding that its operations would not damage the health of community residents.

The residents' victory was short-lived. Five days after the district court's decision, the U.S. Supreme Court handed down Alexander v. Sandoval. (20) In an opinion supported by a 5-4 majority, Justice Antonin Scalia held that a disparate-impact analysis, although clearly contemplated by the Title VI regulations, could not be used in an implied private cause of action.

Considering what the Sandoval dissenters called the "troubling" effect of the decision, (21) the district court immediately reviewed its original holding and sought to determine whether any other basis existed for the private enforcement of the Title VI regulations. (22)

It found one in 42 U.S.C. [section] 1983. (23) Relying on a long line of cases framing the remedial reach of [section] 1983, the district court held that "valid federal regulations, which have the 'force and effect of law,' may create rights which are enforceable under [section] 1983." (24) The court kept its previous injunction intact.

The defendants appealed the decision, and the Third Circuit reversed. (25) The St. Lawrence Cement facility went into full operation.

Waterfront South residents in an area called the Terraces soon realized that their original fears about the plant had been well founded. Within months, they reported excessive levels of dust in their homes that made them cough and often triggered asthma attacks. They complained that rumbling truck traffic from the transportation of slag from Camden's port to the SLC plant--annual loads estimated in the tens of thousands--shook their homes and kept them awake at night. Homeowners believed that their property values, already declining due to their poor surroundings, had plummeted.

Most of the residents of the Terraces banded together to file a lawsuit in state court, claiming damages under the common law in Steinmacher v. St. Lawrence Cement Co. (26) In essence, Steinmacher is a nuisance case, founded on a centuries-old principle of liability.

The plaintiffs allege that the defendants' unreasonable use of land disrupted the residents' quiet enjoyment of their properties. Nuisance theory holds some advantages for the plaintiffs, including fewer requirements of expert testimony to support claims for "subjective" damages such as annoyance, inconvenience, and disturbance, and even causation of spontaneous physical symptoms like difficulty breathing, coughing, headaches, and irritated eyes. (27) In New Jersey, as in most states, mere compliance with a duly issued emissions permit is not a dispositive defense to nuisance. (28)

However, nuisance claims inevitably face challenges in environmental justice cases. Among these is the fundamental question of how one new facility can be considered a nuisance in a poor community affected by many sources of pollution. In Steinmacher, SLC has joined dozens of nearby industries as third-party defendants, asserting that the harm the plaintiffs allege is, at most, the cumulative effect of ongoing industrial development.

This issue is at the heart of the affirmative defenses asserted in the Camden case. Its resolution will help determine whether, in the law of nuisance, vulnerable communities are entitled to the same benefit of the doubt as the vulnerable plaintiffs in individual tort cases, in which tortfeasors take their victims as they find them.

The discovery that Camden's residents were being exposed to another environmental hazard prompted a separate legal action against the city and other defendants. This lawsuit seeks a remedy for the 2001 EPA finding that users of Camden's public water had been on the wrong end of a "completed pathway of exposure" to chromium and VOCs. (29)

Camden residents were understandably upset to learn that their water supply might be tainted, but they were not alone. Recent reports have indicated that many urban utilities, often serving large populations of poor residents and racial minorities, routinely understate or even falsify levels of contaminants in the water they supply. (30)

The management of Camden's water system was deemed so deficient that the state ordered the city to transfer operations to a private water company in 1999. In the meantime, community leaders organized a class action lawsuit to address the effects of the long-standing pollution. In Harris v. City of Camden, the plaintiffs seek certification of a class that would probably exceed 50,000 members. (31)

The plaintiffs in Harris are pursuing two remedies particularly geared to redress harms that poor residents suffer disproportionately.

First, they have pleaded a contractual claim against the city, asserting that members of the class should receive a retired on water bills they paid during the 24-year period defined in the lawsuit, because they paid the bills with the understanding that they would receive untainted, potable water. This claim survived an early motion to dismiss.

Second, against all defendant--a long list of companies allegedly responsible for contaminating the city's wells--they seek the provision of a medical surveillance program. The program would allow the class--made up largely of people who are medically uninsured or underinsured--to obtain professional monitoring of the increased health risks they face because of their exposure to multiple contaminants.

Marshaling resources

Managing litigation like the Camden cases requires a complex application of resources. For example, in the nuisance case, the plaintiffs must produce evidence of the real-life effects of their annoyance, inconvenience, and disturbance. They have made extensive videotapes showing the stream of truck traffic through their neighborhood, and they have produced appraisal reports on the value of more than 40 individual properties.

With the parties' agreement, the trial court has entered a phased discovery order to facilitate the production of thousands of documents by original and third-party defendants and to stage numerous depositions in a logical sequence.

In the water-contamination class action, the parties have engaged in months of discovery solely on class certification issues, including the operation of the city's wells and the transmission of water through several miles of the distribution system for more than two decades. The plaintiffs will be required to show that the contamination reached residents at levels consistently high enough to require medical monitoring for all class members. Public health data must be analyzed retrospectively to ascertain whether the plaintiffs can prove an increased risk of adverse health effects among class members. Each of these tasks requires expert witnesses in a wide variety of disciplines, including engineering and epidemiology.

It remains to be seen whether the citizens of Camden ultimately will achieve a true measure of environmental justice, but they have already accomplished much for their community. Although the courts rejected their federal civil rights claims against the DEP, New Jersey has proposed a legally binding rule for "environmental equity" in the permit-approval process, becoming one of the first states to do so. (32) If the rule is adopted, it may become possible for citizens to litigate environmental fairness issues in state court.

In the meantime, the remarkable ability of the common law to address new problems with ancient doctrine like the law of nuisance will continue to provide hope that the courts, and the lawyers who practice before them, can play a meaningful role in extending environmental justice to all citizens.

Notes

(1.) See generally EDWARDO LAO RHODES, ENVIRONMENTAL JUSTICE IN AMERICA (2003).

(2.) AGENCY FOR TOXIC SUBSTANCES DISEASE REGISTRY (ATSDR), CTRS. FOR DISEASE CONTROL, THE NATURE AND EXTENT OF LEAD POISONING IN CHILDREN IN THE UNITED STATES: A REPORT TO CONGRESS, REP. NO. 99-2966, at 12 (1988).

(3.) RHODES, supra note 1, at 28.

(4.) Id. at 24-25.

(5.) Michael J. Lynch et al., Slippery Business: Race, Class, and Legal Determinants of Penalties Against Petroleum Refinery, 34 J. BLACK STUD. 421, 423, 436-37 (2004).

(6.) See, e.g., Ayers v. Jackson Township, 525 A.2d 287, 308-13 (N.J. 1987).

(7.) U.S. EPA, Final Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses [section] 1.1.1 (Apr. 9, 1998).

(8.) 42 U.S.C.S. [section] 2000d (2000).

(9.) Nondiscrimination in Programs or Activities Receiving Federal Assistance from the EPA, 40 C.F.R. [section] 7.35(c) (2004).

(10.) 42 U.S.C. [section] 9601.

(11.) Coburn v. Sun Chem. Corp., No. 88-0120, 1988 WL 120739 (E.D. Pa. Nov. 9, 1988).

(12.) U.S. CENSUS BUREAU, CENSUS (2000), available at factfinder.census.gov (last visited Dec. 21, 2004).

(13). Id.

(14.) JEFFREY M. DORWART, CAMDEN COUNTY, NEW JERSEY: THE MAKING OF A METROPOLITAN COMMUNITY, 1626-2000, at 142-144 (2001).

(15.) ATSDR, PUBLIC HEALTH ASSESSMENT, PUCHACK WELL FIELD, PENNSAUKEN TOWNSHIP CAMDEN COUNTY, N.J. (June 12, 2002), available at www.atsdr.cdc.gov/ HAC/PHA/puchack/pwf_toc.html (last visited Dec. 21, 2004).

(16.) N.J. PRIMARY CARE ASS'N, INC., CAMDEN COUNTY DATA REPORT, available at www.njpca.org (last visited Dec. 21, 2004).

(17.) 145 F. Supp. 2d 446 (D.N.J.), opinion modified, supplemented, 145 E Supp. 2d 505 (D.N.J.), stay granted, in part, No. 01-2224, 2001 WL 34131402 (3d Cir. June 15, 2001).

(18.) Id. at 484.

(19.) Id. at 505.

(20.) 532 U.S. 275 (2001).

(21.) Id. at 305 (Stevens, J., dissenting).

(22.) 145 F. Supp. 2d 505 (D.N.J. 2001).

(23.) Id. at 509.

(24.) Id. at 529.

(25.) S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771 (3d Cir. 2001), cert. denied, 536 U.S. 939 (2002).

(26.) No. L-5600-01 (N.J., Camden County Super. Ct. filed Sept. 5, 2001).

(27.) See, e.g., Ayers, 525 A.2d 287; Bd. of Health of River Vale Township v. Annett, 62 A.2d 224 (1948); Kroecker v. Camden Coke Co., 88 A. 955 (1913).

(28.) See, e.g., State ex rel. Bd. of Health v. Sommers Rendering Co., 169 A.2d 165 (N.J. Super. App. Div. 1961).

(29.) For final findings, see ATSDR, supra note 15.

(30.) See Carol D. Leonnig et al., Lead Levels in Water Misrepresented Across U.S., WASH. POST, Oct. 5, 2004, at A1.

(31.) Harris v. City of Camden, No. L-03815-02 (N.J. Super. Ct. filed May 30, 2002).

(32.) Rule Proposal, Environmental Protection, Environmental Regulation Programs, Expanded Community Participation Process for Environmental Equity, 34 N.J. Reg. 665(a) (2002).

MARK B. FROST is a partner with Frost & Zeff, which has offices in Philadelphia and Cherry Hill, New Jersey. GERALD J. WILLIAMS is a partner with Williams Cuker Berezofsky in Cherry Hill and Philadelphia. SAMUEL MEROVITZ and DAVID M. CEDAR are partners with Merovitz & Cedar, with offices in Marlton, New Jersey, and Philadelphia.