CIVIL RIGHTS ACT MAY REQUIRE SITING ANALYSIS

 

In an important decision that helps define the reach of the Environmental Justice initiatives of the Federal Government, a United States District Court in New Jersey  issued a preliminary injunction against a steel by-product processing facility, finding that the applicable rules for determining whether a major new source permit could issue under the Clean Air Act do not necessarily go far enough to satisfy the Civil Rights Act.  In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, No. 01-702 (D.N.J. Apr. 19, 2001), Judge Stephen Orlofsky found that the Plaintiffs, who were mostly residents of the neighborhood where the facility was to operate, had established that there were indirect impacts of the facility, including motor vehicle exhaust, that would adversely impact public health and that the neighborhood already suffered from a higher disease rate than the general population.  The neighborhood is made up predominately of Afro-American and Hispanic residents.  Even though the ambient air quality and other technical criteria applied by the State of New Jersey in issuing the permit were “neutral”, the USEPA and state environmental justice rules and policies prohibit official actions that have the effect of discriminating against individuals based on race, color, or national origin.  Given the showing in Court and the comments of record in the State permit proceeding demonstrating significant disparate and adverse impact of the proposed facility based on color or national origin, the Court found the Plaintiffs to have sustained the burden required to obtain a preliminary injunction.