The Legal Intelligencer 

December 18, 2001

3rd Circuit Reverses New Jersey Environmental Racism Decision 
Section 1983 claim not a viable weapon, divided panel rules 
by Shannon P. Duffy

In what may be its most important civil rights decision handed down this year, a divided panel of the 3rd U.S. Circuit Court of Appeals held Monday that 42 U.S.C. 1983 cannot be used to enforce a federal regulation "unless the interest already is implicit in the statute authorizing the regulation." 

The ruling in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, a closely watched "environmental racism" case, resolves an issue that was left undecided by the U.S. Supreme Court. 

The plaintiffs in the suit won the first round when U.S. District Judge Stephen M. Orlofsky of New Jersey issued an injunction that barred the opening of an already built $50 million cement plant in Camden, N.J., after finding New Jersey environmental officials never considered the disparate impact on a predominantly minority neighborhood that already suffers from the effects of a sewage treatment plant, a trash-to-steam plant and numerous toxic waste sites. 

But just a few days later, the U.S. Supreme Court handed down Alexander v. Sandoval, a 5-4 decision in which the justices held that there is no private right of action under Title VI of the Civil Rights Act to enforce "disparate impact" regulations. 

Lawyers for the NJDEP and St. Lawrence Cement Co. quickly urged Orlofsky to vacate his injunction, saying Sandoval had completely undermined the plaintiff's theory. 

But Orlofsky refused. In a second opinion, issued May 10, he ruled that the injunction would remain in effect because the plaintiffs had the right to pursue the same remedies under 1983. 

In June, the 3rd Circuit lifted the injunction. A three-judge motions panel found that the plaintiffs were likely to lose on appeal and that the plant's owner was suffering losses of more than $500,000 per week. 

That ruling, which cleared the way for the plant to open, strongly hinted that the 1983 claim may not be the workable alternative theory that Orlofsky said it is. 

Now a different three-judge panel has ruled that Orlofsky erred by relying on a 3rd Circuit decision that was overruled by Sandoval

But a dissenting judge said the majority was engaging in "analytical alchemy" and that its decision would effectively overturn controlling 3rd Circuit precedent -- something only the court sitting en banc is allowed to do. 

Writing for the majority, Senior 3rd Circuit Judge Morton I. Greenberg found that Orlofsky relied on the 3rd Circuit's 1999 decision in Powell v. Ridge, which held that there was a private right of action available to enforce a regulation implementing Title VI and that a disparate impact discrimination claim could be maintained under 1983 for a violation of a regulation promulgated pursuant to 602. 

But Greenberg, in an opinion joined by 3rd Circuit Judge Thomas L. Ambro, found that language in Sandoval and other U.S. Supreme Court decisions shows that 1983 cannot be used to enforce a regulation unless the statute itself created the right. 

Greenberg found that the Supreme Court's 1987 decision in Wright v. City of Roanoke Redevelopment & Housing Authority limited the use of 1983 in enforcing regulations to cases in which the plaintiffs could show that the regulation was "entitled to deference as valid administrative interpretations of the statute" and in which "Congress had conferred upon plaintiffs that right by statute." 

Orlofsky had also relied on several 3rd Circuit decisions, but Greenberg found that "none of our opinions ... justifies the district court's conclusion that valid regulations may create rights enforceable under 1983." 

Greenberg said the 3rd Circuit's decision in Powell "should not be overread" because the court's opinion was limited to rejecting several defense arguments. 

"Powell did not analyze the foundation issue that is central here, i.e., whether a regulation in itself can create a right enforceable under 1983," Greenberg wrote. 

Instead, Greenberg said, the Powell court "seemed simply to assume for Section 1983 purposes that it could." 

As a result, Greenberg said, "while plaintiffs rely heavily on Powell, that reliance is misplaced, and, accordingly, quite aside from the impact of Sandoval, Powell could not control the outcome here." 

Greenberg found that the Supreme Court's "primary concern" in considering enforceability of federal claims under 1983 "has been to ensure that Congress intended to create the federal right being advanced." 

As a result, Greenberg said, "we hold that a federal regulation alone may not create a right enforceable through 1983 not already found in the enforcing statute. Similarly, we reject the argument that enforceable rights may be found in any valid administrative implementation of a statute that in itself creates some enforceable right." 

Applying those rules, Greenberg said, "it is clear that, particularly in light of Sandoval, Congress did not intend by adoption of Title VI to create a federal right to be free from disparate impact discrimination and that while the EPA's regulations on the point may be valid, they nevertheless do not create rights enforceable under 1983." 


In dissent, 3rd Circuit Judge Theodore A. McKee said Sandoval had overruled only a portion of Powell and that he would have upheld Orlofsky because his decision was correctly based on the holding in Powell that survived. 

"Ironically, the majority overrules Powell by engaging in an analysis that overreads Sandoval while cautioning that 'Powell ... should not be overread'," McKee wrote. 

McKee said the Powell court concluded that plaintiffs could maintain an action to enforce the provisions of the regulations promulgated under 602 by resorting to 1983. 

But McKee complained that Greenberg minimized the holding by seizing upon the Powell court's statement that "we see no reason to hold that resort to 1983 has been foreclosed here." 

Greenberg then concluded that Powell simply "assumed" the right because the Powell majority stated: "Once a plaintiff has identified a federal right that has allegedly been violated, there arises a 'rebuttable presumption that the right is enforceable under 1983." 

McKee said he was "frankly astounded by that analytical alchemy." 

"The rebuttable presumption we referred to in Powell arises not because we 'assumed' a cause of action under 1983, but precisely because we held there was a cause of action under 1983," McKee wrote. 

"The sleight of hand that transforms our mention of a 'presumption' in Powell into an assumption about the application of 1983 is even more puzzling when one considers that the majority's own analysis states that the relevant presumption does not arise unless the plaintiff can establish a federal right has been violated," McKee wrote. 

McKee found that the issue was a "simple" one -- whether 1983 provides an independent avenue to enforce disparate impact regulations promulgated under 602 of Title VI. 

"That is the same question that was posed in Powell. We answered it in the affirmative in Powell, and the answer was not overturned by the subsequent holding in Sandoval. Powell therefore controls our inquiry here until overruled by the Supreme Court, or this court sitting en banc," McKee wrote. 

Attorney Olga D. Pomar of Camden Regional Legal Services argued the case for the plaintiffs and was joined on the briefs by attorneys Jerome Balter and Michael Churchill of the Public Interest Law Center of Philadelphia and Luke W. Cole of the Center on Race, Poverty & The Environment in San Francisco. 

Deputy Attorney General Stefanie A. Brand argued the case for NJDEP. 

Attorney Brian S. Montag of Pitney Hardin Kipp & Szuch in Florham Park, N.J., argued the case for St. Lawrence Cement Co. and was joined on the brief by Pitney Hardin attorney Catherine A. Trinkle. 

The appeal also incurred a large number of friend-of-the-court briefs on both sides. 

Weighing in with briefs that supported the defendants were the Chamber of Commerce of the United States; the Commonwealth of Pennsylvania; the South Jersey Port Corp.; the National Association of Manufacturers; the American Chemistry Council; the Chemistry Industry Council of New Jersey; the Washington Legal Foundation; the National Black Chamber of Commerce; the Allied Educational Foundation; and the American Road & Transportation Builders Association. 

Supporting the plaintiffs were the National Association for the Advancement of Colored People; the American Civil Liberties Unions of New Jersey and Pennsylvania; the Lawyers' Committee for Civil Rights Under Law; the Bridge of Peace Community Church; Fettersville Neighborhood Task Force; Concerned Citizens of North Camden; The Greater Camden Unity Coalition; Campaign for Peace and Justice; the Gray Panthers of South Jersey; the Dar Al Salaam/Africana Islamic Mission; the New Jersey Environmental Federation; and the Camden County Green Party. 

Also supporting the plaintiffs were: the Asian American Legal Defense and Education Fund; Law Professors Concerned about Environmental Justice; the Natural Resources Defense Council; the Center for Constitutional Rights; the Center for Law in the Public Interest; the National Health Law Program; the National Senior Citizens Law Center; the New York City Coalition to End Lead Poisoning; the New York Lawyers for the Public Interest; the National Lawyers' Guild/Maurice and Jane Sugar Law Center for Social and Economic Justice; the Puerto Rican Legal Defense and Education Fund; and the Sierra Club.