a "contested case" subject to protections of NJAPA). Therefore, because plaintiff had no constitutional right to a hearing, no violation of its procedural due process rights occurred.
2. Substantive due process
Plaintiff next argues that defendants' actions violated its "substantive due process rights guaranteed by the Fourteenth Amendment to the Constitution." (Complaint at P 66.) The "heightened scrutiny" of substantive due process generally extends only to "fundamental rights." See Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791, 2804-05 (1992); Knight v. Tape, Inc., 935 F.2d 617, 627 (3d Cir. 1991). The Supreme Court has defined "fundamental rights" as "those fundamental liberties that are 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if [they] were sacrificed,'" or "those liberties that are 'deeply rooted in this Nation's history and tradition.'" Bowers v. Hardwick, 478 U.S. 186, 191-92, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986) (internal quotations omitted). Because plaintiff does not appear to assert, and could not in good faith assert, that the right to be free from regulatory ineptitude is a "fundamental right," heightened scrutiny does not apply.
Where a governmental action does not implicate a "fundamental right," substantive due process looks only to whether that action was rationally related to a legitimate government interest. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993); Knight, 935 F.2d at 627. We have already noted that the protection of the environment is a legitimate, and indeed a compelling, state interest. See Kimber Petroleum, 110 N.J. at 88-89. The prioritization of contaminated sites is certainly rationally related to this interest.
Plaintiff stresses that the "rational basis" branch of substantive due process also protects against arbitrary and irrational government action. Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990); Parkway Garage, 5 F.3d at 692. However, while the manner of prioritizing sites described in the complaint may not have been as scientific as plaintiff would like, it is not so unrelated to the state's interest in preventing pollution as to constitute arbitrary government action. Absent any government enforcement action pursuant to that priority system, we find no substantive due process violation.
3. Equal protection
Finally, plaintiff alleges that DEPE based the SRP not on the actual environmental hazard presented by a site, but instead on "deep pockets" and the ability to pay for costly remediation. (Complaint at P 65.) We first note that wealth-based classifications do not implicate a "suspect class" under Equal Protection jurisprudence and thus are subject only to rational basis review. See San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973).
Rational basis review under the Equal Protection Clause differs from the same review under substantive due process in that it "'focuses not on whether the law as a whole is rationally related to a legitimate state interest, but on whether any classifications drawn by the law between classes of citizens are rationally related to the goal to be achieved.'" Knight, 935 F.2d at 627 (quoting Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985)). On its face, the RPS makes no distinction between "deep pockets" and "non-deep pockets" polluters. However, an equal protection claim may lie when government officials use their discretion under a facially neutral statute to target a specific group. See Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). In such a case, the plaintiff must prove that the defendants' actions were motivated by actual discriminatory intent. See Washington v. Davis, 426 U.S. 229, 236, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).
We also note that in the realm of "'economic and social welfare legislation, it is rare that any law or classification would be held to violate substantive due process or equal protection principles under the rationality standard.'" Knight, 935 F.2d at 627 (quoting J. Nowak, R. Rotunda & J. Young, Constitutional Law 356 (3d ed. 1986)). However, courts have on occasion found that government action is not rationally related to a legitimate government interest. See Cleburne, 473 U.S. at 447-50 (ordinance requiring a special use permit for a home for the mentally retarded but not other uses lacks rational basis).
In this case, the legitimate interest at issue is the protection of the environment. We find that the consideration of wealth in prioritizing hazardous waste sites could be rationally related to this interest. Targeting sites for priority remediation serves in part to encourage site-owners to undertake voluntary remediation. If the government instead prioritized sites where the alleged polluters could not afford to undertake remediation, either the government would bear the cost of remediation or no remediation would occur. Thus, the government has some legitimate interest in targeting sites owned by those able to afford remediation.
In so holding, we note that contrary to plaintiff's assertions, being listed as a "priority" site does not necessarily mean that the site is one of the most polluted in New Jersey. It merely means that it will be one of the first cleaned up in New Jersey. See 25 N.J. Reg. 259(c). While environmental cleanup should to some extent be based on the level of environmental contamination at a site, it may be based on other factors as well. The Equal Protection Clause does not require the government to regulate at a level of "mathematical nicety." Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78, 55 L. Ed. 369, 31 S. Ct. 337 (1911). See also Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985) ("The Constitution does not require states to enforce their laws . . . with Prussian thoroughness as the price of being allowed to enforce them at all . . . . Selective, incomplete enforcement of the law is the norm in this country.") (internal citations omitted).
In this case, the facts alleged in plaintiff's complaint show that defendants did to some extent consider the level of contamination at the Mannington site in making the priority determination, although they may not have considered it in the manner plaintiff would have liked. The fact that wealth may have played a supplemental role in this determination does not violate the Equal Protection Clause.
4. Clearly established rights
We have held that defendants did not violate plaintiff's constitutional rights. Even if we entertained the possibility that a court might construe defendants' actions as violating plaintiff's constitutional rights, we would dismiss the damages claims because these rights are not "clearly established" and defendants are entitled to qualified immunity.
Determining whether a right is clearly established "depends upon the level of generality at which the relevant 'legal rule' is to be identified." Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). For example, the Anderson Court recognized that "the right to due process of law is quite clearly established by the Due Process Clause." Id. However, the Court made clear that a vague allegation that a state official's actions violated a plaintiff's amorphous "due process" rights would not overcome qualified immunity. Instead, the right must be clearly established "in a more particularized, and hence more relevant, sense: The contours of the right at issue must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640.
Plaintiff has not even attempted to define the contours of the right that defendants allegedly violated. Instead, plaintiff argues:
Defendants have violated Mannington's rights of substantive due process, procedural due process and equal protection. These rights are "clearly established" as the fundamental American bulwarks against official corruption and oppression. There is no legal question that government unfairness, duplicity and coercion are forbidden.
(Plaintiff's Brief at 16.)
While this argument is certainly passionate, it does not provide the Court with any significantly relevant level of particularity at which to evaluate plaintiff's claims. On that ground alone, the court could dismiss plaintiff's claim.
However, the court also finds that plaintiff could not identify any clearly established constitutional right that a reasonable official in defendants' position would believe they violated. As an initial matter, we note that officials generally are not held liable when they make decisions based on erroneous information. See Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, et al., 1995 WL 29865 (3d Cir. 1995) (administrative decision based on allegedly negligent laboratory reports within the discretionary function exception to the Federal Tort Claims Act). Plaintiff here does not argue that its constitutional rights were violated because it was deemed a priority site but rather argues that its priority status was based upon erroneous or insufficient information. We discern no clearly established constitutional right that would be violated by such action.
Plaintiff also alleges that defendants acted in bad faith in targeting Mannington as a priority site. While defendants' subjective intent may be relevant to both plaintiff's substantive due process claim, see Parkway Garage, 5 F.3d at 692, and equal protection claim, see Washington v. Davis, 426 U.S. at 236, the law is clear that a mere allegation of bad faith is insufficient to defeat qualified immunity even on a motion to dismiss. Harlow, 457 U.S. at 817-18. Instead, the government official's actions must violate clearly established constitutional rights of which a reasonable official would have known. Id. at 818. Because defendants' actions in this case, even if taken in bad faith, did not violate plaintiff's clearly established constitutional rights, defendants are entitled to qualified immunity.
Furthermore, plaintiff's allegation that defendants' actions were taken in bad faith is in itself undermined by the applicable law. All of the actions taken by defendants, including the issuance of MOAs and ACOs, are authorized by DEPE's Oversight Rules, N.J.A.C. § 7:26C. The New Jersey Supreme Court has held such "necessarily strict enforcement machinery" constitutional. Kimber Petroleum, 110 N.J. at 83. Therefore, not only is there an absence of case law ruling defendants' conduct in this case unconstitutional, but there is authority from the New Jersey Supreme Court that the conduct passes constitutional muster. Based on this state of the law a reasonable official would certainly conclude that her conduct did not violate plaintiff's clearly established rights.
These doctrines of discretionary functions, objective reasonableness, and adherence to valid state law all show that defendants are entitled to qualified immunity. However, from a practical standpoint, the most distinctive aspect of this case is that defendants took no enforcement actions against plaintiff. No fines were levied; no remedial actions were undertaken; no time constraints were imposed. Instead, the state simply took preliminary steps toward formulating a priority system. No reasonable official would believe that merely considering regulatory action would violate a potential regulatory target's constitutional rights. Therefore, all defendants are entitled to qualified immunity for their actions.
An industrial plant generally produces a complex and variable waste stream about which regulators usually have imperfect knowledge, not only about what is being emitted on a current basis, but also about the impact of emissions going back for decades or even centuries. Indeed, the environmental oversight process is to a great extent a continuous governmental struggle for more accurate information on which to premise regulatory or enforcement action. The Mannington-DEPE struggle exemplifies how this struggle can grow fractious. Environmental knowledge about the present and past impact of a factory's waste stream is not easy to come by; knowing what to look for and understanding what one finds involves difficult scientific issues and sometimes inconclusive results. And the search itself can be excruciatingly expensive with tests of a single sample running into thousands of dollars.
Federal courts should be hesitant to find a constitutional deprivation every time a state environmental regulator predictably uses inaccurate or incomplete information, unless that use results in a real constitutional deprivation. A regulator's demand that a company undertake environmental remediation causes such a deprivation only if that demand is backed up by some form of enforcement action, and then only if the state fails to afford the company due process in contesting the legality of that action. Neither DEPE's demand that Mannington enter an ACO or an MOA, which it refused to do, nor Mannington's inclusion as a priority site on the SRP list, later withdrawn by DEPE, constitutes a deprivation which meets that standard.
Plaintiff's claims for prospective relief are dismissed as moot, or in the alternative, pursuant to the doctrine of Burford abstention. Plaintiff's claims for damages are dismissed pursuant to the doctrine of qualified immunity.
We stress that in so holding we do not pass on the merits or legality of any past or future RPS. This is a question for the New Jersey courts to decide. Instead, we merely hold that defendants' actions have not violated plaintiff's clearly established rights and that prospective relief against such further actions is unwarranted. Only if an established and implemented RPS resulted in a deprivation of constitutional rights could this court's jurisdiction be invoked.
An appropriate order will enter on even date herewith.
JOSEPH E. IRENAS
DATED: February 28th, 1995