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South Camden Citizens in Action v. New Jersey Department of Environmental Protection

01-702 (U.S. Dist. Ct. D. N.J. 2006) (Unpublished)

PERMITS; DISCRIMINATION — If, when issuing permits, a governmental entity’s policies are facially neutral, they do not violate the equal protection clause merely because they disproportionately affect minorities and, to overcome, that presumption, it is necessary to prove that the governmental entity adopted its policies “because of” and not merely “in spite of” its adverse effects on minorities.

A citizen’s group sued a cement company and the New Jersey Department of Environmental Protection (NJDEP). The group claimed that cement company’s operation of a blast furnace slag grinding facility in the southern waterfront of a municipality constituted a private nuisance that unreasonably interfered with the neighborhood residents’ use and enjoyment of their homes. The group also claimed that NJDEP violated the Civil Rights Act of 1964 by issuing the permits allowing the construction of the facility because of its disparate racial impact such construction would have. With respect to the private nuisance claim, the group claimed that dust, soot, vapor, and fumes, in addition to noise and vibration emanating from the facility, and the truck traffic associated with the facility, unreasonably interfered with the residents’ use and enjoyment of their property. The group also claimed that the facility endangered the health and safety of the residents. While the case was pending, the group entered into a stipulation with the cement company which provided that no claims were made or would be made in the future that any diseases were caused or exacerbated by the cement company’s operations, and that the only claims by residents were that they were at greater risk for health issues as a result of the cement company’s operations. The cement company moved for summary judgment.

The Court noted that, in a private nuisance claim, the cement company could be found liable only if its conduct was the legal cause of an interference with the someone else’s enjoyment of his or her property. Such interference had to be intentional and unreasonable, or unintentional and reckless. In this case, the residents testified as to soot, sand, and noise from the time the cement company began operations, but the residents did not provide any evidence that it came from the cement company’s facility. Consequently, the claim that the cement company caused the sand, soot, and noise was merely speculative. The Court also noted that the group’s claim that the cement facility endangered the health and welfare of the residents was also flawed because their expert’s report looked at the waterfront area as a whole, but did not tie the cement facility’s operations to residents’ health problems.

With respect to NJDEP, the group claimed that by issuing the permits in a residential area whose makeup was predominately comprised of minorities, NJDEP violated Title VI of the Civil Rights Act of 1964. The Court noted that in order to prevail, the group had to demonstrate that the issuance of the permits for the cement facility had a disproportionate effect on minorities, and also that NJDEP was guilty of intentional discrimination against minorities. If NJDEP’s policies were facially neutral, they would not violate the equal protection clause merely because they disproportionately affected minorities. In such a case, one would need to prove that NJDEP adopted the policies “because of” and not merely “in spite of” its adverse effects on minorities. Therefore, the group needed to demonstrate a pattern of NJDEP’s approval of sites for industrial facilities, and that race was such a significant factor that NJDEP’s decisions were unexplainable on grounds other than race. The Court noted that the group’s expert testified that other factors such as population density and industrial land use could also explain why NJDEP approved industrial facilities in certain areas. It also noted that there was no evidence as to the racial makeup of the neighborhood at the time the industrial facilities moved into the area, nor was there any evidence as to whether NJDEP permits were required and issued for those facilities at that time. Lastly, the Court found no evidence on NJDEP’s part to discriminate against minorities when it issued permits authorizing the construction and operation of the cement facility. Therefore, it found no violation of Title VI.

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