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SOUTH CAMDEN CITIZENS v. N.J. DEPT. OF ENVIR. PROTECTION

April 16, 2003

SOUTH CAMDEN CITIZENS IN ACTION, GENEVA SANDERS, PAULINE WOODS, BARBARA PFEIFFER, JULITA GILLIARD, OSCAR LISBOA, PHYLLIS HOLMES, GWEN PETERSON, LATOYA COOPER, JULIO LUGO, LULA WILLIAMS, AND SHARON CHRISTIE POTTER, PLAINTIFFS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND BRADLEY M. CAMPBELL, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, IN HIS OFFICIAL CAPACITY, DEFENDANTS, AND ST. LAWRENCE CEMENT CO., L.L.C., DEFENDANT-INTERVENOR



The opinion of the court was delivered by: Stephen M. Orlofsky, District Judge.

OPINION

INTRODUCTION

Approximately two years ago, South Camden Citizens in Action, and the individual Plaintiffs who reside in a South Camden, New Jersey neighborhood, known as "Waterfront South," asked this Court to issue a preliminarily injunction enjoining the construction and operation of a proposed cement grinding facility, which they claimed would have a disparate impact on the residents of their community in violation of Title VI of the Civil Rights Act of 1964, 40 U.S.C. § 2000d-1. Since then, the boundaries of Title VI jurisprudence have been narrowed well beyond what was initially thought to be appropriate by this Court. As observed by Edmund, the protagonist in Shakespeare's King Lear who met an untimely demise, "The wheel is come full circle."*fn1 With this lawsuit now before this Court for the second time, I must consider the Defendants' motions to dismiss Plaintiffs' remaining claims pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs' remaining claims are: (1) intentional discrimination in violation of both § 601 of Title VI of the Civil Rights Act of 1964, 40 U.S.C. § 2000d, and 42 U.S.C. § 1983 and the Fourteenth Amendment (First and Third Counts, Second Amended Complaint); (2) discriminatory impact on the basis of race, color, and national origin in violation of the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. (Fourth Count, Second Amended Complaint); (3) Private Nuisance and Public Nuisance against the Defendant-Intervenor, St. Lawrence Cement Co., LLC only (Fifth and Sixth Counts, respectively, Second Amended Complaint).

This Court has jurisdiction over Plaintiffs' federal claims pursuant to 28 U.S.C. § 1331, 1343. It also has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. I have considered the submissions of the parties and decided Defendants' motions on the papers without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, I shall grant in part and deny in part the Defendants' motions to dismiss.

PROCEDURAL HISTORY

This is the third published opinion I have filed in the course of adjudicating the claims asserted by Plaintiffs, South Camden Citizens in Action and the individual residents of a community located in South Camden, New Jersey, known as "Waterfront South"*fn2 (collectively, "the SCCIA Plaintiffs"), that Defendants, New Jersey Department of Environmental Protection ("NJDEP") and NJDEP Commissioner Robert Shinn ("Shinn"), now Bradley M. Campbell ("Campbell") (collectively, "the NJDEP Defendants"), inter alia, violated Title VI of the Civil Rights Act of 1964, 40 U.S.C. § 2000d-1 ("Title VI"), by granting Defendant-Intervenor, St. Lawrence Cement Co.'s ("SLC"), application for air permits to operate a proposed cement grinding facility without considering the potential adverse, disparate impact of their permitting decision on the residents of "Waterfront South," an impoverished and largely minority neighborhood in Camden, New Jersey. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 145 F. Supp.2d 446 (D.N.J. 2001) (Orlofsky, J.) ("SCCIA I"); South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 145 F. Supp.2d 505 (D.N.J.) (Orlofsky, J.) ("SCCIA II"), rev'd, South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 274 F.3d 771 (3d Cir. 2001), cert. denied, 122 S.Ct. 2621 (2002). The basic facts underlying the SCCIA Plaintiffs' claims are set forth in great detail in this Court's earlier Opinions, and will only be repeated here when necessary to provide context. A brief recitation of the procedural history, however, is warranted to explain the current procedural posture of this case.

On February 13, 2001, the SCCIA Plaintiffs moved for a preliminary injunction and declaratory relief against the NJDEP Defendants. In their original verified Complaint, the SCCIA Plaintiffs alleged that the NJDEP Defendants violated Title VI and the regulations promulgated by the United States Environmental Protection Agency ("EPA") to implement Title VI when the NJDEP issued air pollution control permits to SLC to operate a cement grinding facility without regard to the discriminatory effect it would have on their neighborhood, Waterfront South, an impoverished, minority community located in South Camden, which was already suffering from the cumulative environmental effects of the numerous industrial facilities situated in and around it. On February 22, 2001, I signed a consent order which permitted SLC to intervene as a defendant in this action. See Consent Order (filed Feb. 22, 2001).

Subsequently, on April 19, 2001, I granted the SCCIA Plaintiffs' motion for a preliminary injunction and declaratory relief. In doing so, I relied on controlling case law in this Circuit which held that a private right of action existed under § 602 of Title VI, see Powell v. Ridge, 189 F.3d 387 (3d Cir.), cert denied, 528 U.S. 1046 (1999). I determined that, inter alia, SCCIA had established a reasonable likelihood that the operation of the proposed cement grinding facility which would emit various pollutants and require the annual ingress and egress of nearly 80,000 delivery trucks would have an adverse, disparate impact on the residents of the Waterfront South neighborhood based on their race, color, or national origin. SCCIA I, 145 F. Supp.2d at 495.

Five days later, on April 24, 2001, however, the United States Supreme Court decided the case of Alexander v. Sandoval, 532 U.S. 275 (2001), in which a five justice majority held that: "Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602." Id. at 293. In response to the Supreme Court's decision in Sandoval, which effectively overruled this Court's decision rendered five days earlier, the SCCIA Plaintiffs argued that my decision of April 19, 2001, which granted preliminary injunctive relief, could stand on alternative legal grounds. In particular, the SCCIA Plaintiffs maintained that their claim of disparate impact, originally brought under § 602 of Title VI, could be properly brought under 42 U.S.C. § 1983 ("§ 1983"). On April 26, 2001, I granted the SCCIA Plaintiffs' motion for leave to amend the complaint to seek to enforce Title VI's disparate impact regulations pursuant to § 1983.

Thereafter, after considering the supplemental briefs filed by the parties, on May 10, 2001, in a Supplemental Opinion and Order granting the SCCIA Plaintiffs preliminary injunctive and declaratory relief, I held that the EPA's Title VI implementing regulations, codified at 40 C.F.R. § 7.1 et seq., created rights which are enforceable under § 1983. See SCCIA II, 145 F. Supp.2d at 548. After concluding that the EPA's § 602 implementing regulations have the force and effect of law under governing Supreme Court and Third Circuit case law, see id. at 526-29, I then applied the three-part analysis set forth in Blessing v. Freestone, 520 U.S. 329 (1997), in order to determine whether those implementing regulations conferred a federal right on the SCCIA Plaintiffs which was enforceable under § 1983. Keeping in mind that "the EPA's implementing regulations must be examined in the context of the broader legislative and regulatory initiative mandated by Congress through the Civil Rights Act in general, and Title VI in particular, of which the EPA's implementing regulations are but a small part," id. at 356, I first held that the SCCIA Plaintiffs had satisfied the first prong of the Blessing test by articulating a specific right under the EPA's Title VI implementing regulations, namely, "to be free of disparate impact discrimination caused by the use, by a recipient of federal funds, of `criteria or methods' which have a discriminatory `effect' on individuals based on their race, color, or national origin." Id. at 538. Moreover, under the second prong of the Blessing test, I held that "the right to be free of discrimination resulting from the adverse disparate impact of a facially neutral policy implemented by a recipient of federal funding is neither vague, nor, amorphous, and well within the competency of the judiciary to enforce." Id. at 541. Finally, under the third prong of the Blessing test, I held that the mandatory language of Title VI, and the EPA's implementing regulations in particular, unambiguously imposed a binding obligation on the recipient of federal funding. Id. at 541-42. Having rejected Defendants' argument that EPA's Title VI implementing regulations create a comprehensive enforcement scheme which demonstrates that Congress intended to prohibit plaintiffs from pursuing a remedy under § 1983, I held that the Defendants had failed to overcome their burden to show "by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement." Id. at 543 (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 520-21 (1990)).

In a divided two to one decision, the United States Court of Appeals for the Third Circuit disagreed, and on December 17, 2001, reversed this Court's Opinion and Order of May 10, 2001, granting preliminary injunctive relief, and remanded the case for further proceedings. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 274 F.3d 771 (3d Cir. 2001), cert. denied, 122 S.Ct. 2621 (2002). Judge Greenberg, writing for a two judge majority, held that the EPA's Title VI implementing regulations, by themselves, did not create rights which are enforceable under § 1983. Id. at 790-91. Rather, Judge Greenberg held that the alleged right of which a plaintiff claims to have been deprived must be found in the statute itself. Judge Greenberg observed: "It was of paramount importance that Congress intended to create such a right in the statute, with the regulation then defining the right that Congress already conferred through the statute." Id. at 788.*fn3 The Supreme Court denied certiorari on June 24, 2002, see South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 122 S.Ct. 2621 (2002).

Following the remand to this Court, the SCCIA Plaintiffs filed a motion for leave to file a Second Amended Complaint. In an Order dated November 19, 2002, I granted the SCCIA Plaintiffs' motion, and on November 26, 2002, the SCCIA Plaintiffs filed a Second Amended Complaint, which added Lulu Williams and Sharon Christie Potter as plaintiffs, substituted as a defendant the current NJDEP Commissioner Bradley M. Campbell ("Campbell") for former NJDEP Commissioner Schinn, and most importantly, added Counts Five and Six, which asserted claims of Private and Public Nuisance against SLC only. See Pl.'s Second Amended Compl. The Second Amended Complaint now includes six counts. The First Count contains a claim that the NJDEP Defendants have intentionally discriminated against Plaintiffs and other African-American and Hispanic residents of Waterfront South in violation of § 601 of Title VI. Id. ¶¶ 99-102. The Second and Third Counts allege claims against the NJDEP Defendants of disparate impact and intentional discrimination in violation of the EPA's implementing regulations promulgated to enforce § 602, § 1983, and the Equal Protection Clause of the Fourteenth Amendment. Id. ¶¶ 103-13. The Fourth Count alleges that by granting permits to SLC, the NJDEP "has caused a diminution on both the quantity and quality of available housing stock in the Waterfront South neighborhood, which has a discriminatory impact on the Waterfront South residents on the basis of race, color and national origin" in violation of the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. ("Title VIII"). Id. ¶¶ 114-19. Finally, the Fifth and Sixth Counts alleged claims that SLC has created a public and private nuisance to the residents of Waterfront South through the operation of its cement grinding facility, and "through the associated use of diesel trucks[, which] has caused dust, soot, vapors, fumes, and fumes to be emitted." Id. ¶¶ 120-37. Accordingly, the SCCIA Plaintiffs ask this Court to grant declaratory relief in the form of rescinding the air permits and certificates which NJDEP issued to SLC, enjoining the NJDEP from taking further action which will permit the operation of SLC's cement grinding facility, and ordering the NJDEP "to develop and adopt comprehensive protocol[s] for reviewing permit applications that will prevent the granting of permits that have the effect of discriminating against persons on the basis of color, race, or national origin." Id. ¶¶ (2)-(6).

On January 31, 2001, both the NJDEP and SLC filed motions to dismiss the SCCIA Plaintiffs' Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). In light of the Supreme Court's holding in Sandoval and the Third Circuit's recent holding in this case, the SCCIA Plaintiffs concede that their claims of disparate impact in violation of the EPA's implementing regulations under § 602 of Title VI and § 1983 should be dismissed. Accordingly, I shall grant the NJDEP Defendants' motion to dismiss the Second Count of the Second Amended Complaint, as well as that portion of the Third Count of the Second Amended Complaint that alleges a violation of § 602 of Title VI. I shall, therefore, address Defendants' motions with respect to the remaining claims: (1) intentional discrimination in violation of both § 601 of Title VI and the Fourteenth Amendment; (2) discriminatory impact on the basis of race, color, and national origin in violation of the Fair Housing Act, Title VIII; and (3) Private and Public Nuisance.

LEGAL STANDARD GOVERNING MOTIONS TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mruz v. Caring, Inc., 39 F. Supp.2d 495, 499 (D.N.J. 1999) (Orlofsky, J.). The issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Rule 12(b)(6) authorizes a court to dismiss a claim on a dispositive issue of law. See Neitzke v. Williams, 490 U.S. 319, 326 (1989). Dismissal under the rule cannot be based on a judge's disbelief of a complaint's factual allegations. Id. at 327. When considering a Rule 12(b)(6) motion, courts must accept as true the allegations in the complaint and its attachments, as well as all reasonable inferences construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Legal conclusions offered in the guise of factual allegations, however, are given no presumption of truthfulness. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

A party seeking dismissal under Fed.R.Civ.P. 12(b)(6) cannot rely on matters outside the pleading because, if these are not excluded by the court, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(c). Although a district court may not consider matters extraneous to the pleadings, "a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see also Fed.R.Civ.P. 10(c); U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).

DISCUSSION

INTENTIONAL DISCRIMINATION UNDER § 601 OF TITLE VI AND THE EQUAL PROTECTION CLAUSE
The SCCIA Plaintiffs first allege that the NJDEP Defendants, "who are the recipients of federal financial assistance and subject to the requirements of Title VI, intentionally discriminated against the plaintiffs and other African-American and Hispanic residents of Waterfront [South] and the adjoining communities on the basis of race, color, and national origin" in violation of § 601 of Title VI. Second Amended Compl. ¶ 101.*fn4 Section 601 of Title VI provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d. In addition, the SCCIA Plaintiffs allege that by intentionally discriminating against them on the basis of race, color, and national origin, the NJDEP Defendants violated the Equal Protection Clause of the Fourteenth Amendment and § 1983. Compl. ¶¶ 109-13. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
42 U.S.C. § 1983.

The Supreme Court has made it clear that "the reach of Title VI's protection extends no further than the Fourteenth Amendment." United States v. Fordice, 505 U.S. 717, 732 n. 7 (1992) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978)). In order to state a claim upon which relief can be granted under either § 601 of Title VI or the Equal Protection Clause of the Fourteenth Amendment and § 1983, a party must allege that he or she was the target of purposeful, invidious discrimination. See Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (rejecting any application of § 601 of Title VI that extends beyond intentional discrimination); Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) ("[A]s we made clear in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 [(1976)] and Arlington Heights v. Metropolitan Hous. Dev. Corp. 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose."). See also Alexander v. Choate, 469 U.S. 287, 292-93 (1985); Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 564 (3d Cir. 2002). In order to conclude that the SCCIA Plaintiffs have failed to state a claim of intentional discrimination, I must find "beyond a doubt" that no set of facts alleged in the Second Amended Complaint would entitle them to relief. Pryor, 288 F.3d at 564.

A plaintiff who seeks recovery under a theory of purposeful discrimination must demonstrate that governmental authority implemented the facially neutral policy at issue "`because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Id. at 562 (quoting Feeney, 442 U.S. at 279). See also Stehney v. Perry, 101 F.3d 925, 937-38 (3d Cir. 1996) (upholding lower court's dismissal pursuant to Rule ...


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