Government bodies know too well that it is very difficult to site landfills, incinerators, sewage treatment plants, prisons, halfway houses, and other noxious facilities in any community. This is called the NIMBY syndrome, standing for "Not In My Back Yard." Now as a result of a recent federal court decision in the case of Chester Residents Concerned For Quality Living v. Seif, Docket No. 97-1125 (Third Circuit, December 30, 1997), local governments may anticipate federal court lawsuits over these issues.

Many poor people and minorities believe that these kinds of facilities are more likely to be located in their communities than in other communities. This has prompted a movement called the "environmental justice" movement. This article will explain what the environmental justice concept means, and how it has emerged from a movement into federal law.

The Birth of the Movement
The environmental justice movement took root during the past ten years. The movement considers public health and safety concerns associated with the siting of certain pollution intensive activities in economically disadvantaged communities, or communities with large minority populations. Nationally, the movement began in reaction to the continued placement of incinerators, landfills, and other noxious devises in poor neighborhoods -- neighborhoods frequently lacking sufficient political muscle to block the intrusion.

Up until 1994, this thesis caught the attention of many and was the subject of much discussion. While an environmental justice movement was developing, it was just a movement. There was no force of law to ensure that any of these lofty ideas were ever actually implemented.

Executive Order
On February 11, 1994, President Clinton signed an Executive Order which focused federal agency attention on this issue. That Order, which was far reaching, gave the environmental justice movement the force of federal law. In pertinent part it provided:

To the greatest extent practicable and permitted by law ... each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Marian islands.

Federal Appeals Court Interprets Environmental Justice Law -- Makes its Easier For Suits To be Filed

In a recent significant development, the Federal Third Circuit Court of Appeals determined that the EPA's environmental justice regulation gives rise to a private right of action. This means that private parties, such as citizen groups, may now sue governments and others alleging that certain facilities were located in a discriminatory fashion.

In Chester Residents Concerned for Quality Living v. Seif, a local citizens group located in Chester, Pennsylvania, that opposed the siting of a solid waste facility in its neighborhood, was permitted to proceed with its suit alleging that there would be a "discriminatory effect" created by the siting and operation of the facility. The Appeals Court observed that the City of Chester is located in Delaware County, Pennsylvania, and has a population of approximately 42,000, of which 65% is black and 32% is white. Delaware County, excluding Chester, has a population of approximately 502,000, of which 6.2% is black and 91% is white.

Plaintiff alleged that Pennsylvania granted five waste facility permits for locations in the City of Chester since 1987, while only granting two permits for sites in the rest of Delaware County. It further alleged that the Chester facilities have a total permit capacity of 2.1 million tons of waste per year, while the non-Chester facilities have a total permit capacity of only 1,400 tons of waste per year.

The United States was granted permission to file a brief in support of its position that a private right of action was created by the federal regulation. The United States asserted that purpose of the amendment was to broaden the scope of coverage of Title VI.

The Concerned Residents decision may be of interest to many. The court essentially identified an entirely new cause of action against public entities. Now, when a group desires to oppose public works siting decisions, or believes that a local program has been administered in a manner that yields a discriminatory effect, the group may be able to sue the local government in federal court.

Conclusion
What started as a social movement, has now become a basis for judicial relief. Since the scope of Title VI and the federal regulations applies to any program receiving "federal finance assistance," the list of possibly impacted federal, state, county, and local programs is nearly endless. For this reason, the Chester Residents case might be just the tip of an iceberg.

On June 8, the United State Supreme Court granted Pennsylvania's request for a hearing to appeal the federal appeal's court's decision. Depending on how the Supreme Court rules, citizen groups throughout the country will know for sure whether they can pursue these kinds of "discriminatory effect" lawsuits. It may take a year before the Court rules.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.