Can Citizens Dispute Permit Ruling?

Barry Shanoff

November 1, 1998

4 Min Read
Can Citizens Dispute Permit Ruling?

The U.S. Supreme Court has set aside a federal appeals court ruling that gave individuals direct access to federal courts when challenging the discriminatory effect of environmental permits. [Seif v. Chester Residents Concerned for Quality Living, No. 97-1620]

In June, the high court granted a petition for review filed by Pennsylvania environmental authorities. The state claimed in its petition that the U.S. Court of Appeals for the Third Circuit was wrong when it ruled last December that private parties could file suit to enforce certain U.S. Environmental Protection Agency (EPA) regulations issued under Title VI of the federal civil rights act. These rules forbid agencies that receive federal funds from using decision methods or criteria with a discriminatory effect.

The case involved a state-issued permit for a contaminated soil treatment facility in a neighborhood where most of the residents are minorities. When the proposed operator abandoned its plans for the Chester, Pa., facility, which occurred after the Supreme Court accepted the case for review, the state revoked the permit.

In a summary order announced in August, the high court dismissed the state's petition and vacated the appeals court ruling. Such action was predictable and appropriate. The Supreme Court routinely dismisses cases from its docket - even after the parties have filed briefs and presented oral arguments - when changed circumstances make the issues moot, that is, when a decision will not have any practical effect on a current controversy.

Although the order overturned a decision that had been hailed by civil rights advocates, eliminating it as a binding legal precedent, the Supreme Court eventually will rule on important environmental justice issues. Besides how and when, if at all, citizens may challenge state-issued permits, questions remain unanswered: By what standard must an agency assess whether a pollution control permit causes a disparate impact on minority and low-income groups? How can an agency fairly reconcile and accommodate legitimate rights and interests that conflict?

Disparate impact is a concept borrowed from the employment law arena. Experts can analyze a company's hiring practices and, using accepted criteria, can provide an opinion on disproportionate effects. By comparison, no such standards exist for gauging whether a permit for a municipal solid waste facility, for example, creates a discriminatory impact on nearby minority populations.

EPA, for its part, says that the ruling will not affect the agency's progress on revising its policies and procedures for handling administrative complaints filed under Title VI.

Last February, EPA announced "interim final" guidance on processing complaints that allege undue, disproportionate or discriminatory impacts from facilities having state-issued environmental permits.

From the start, state and local officials were nearly unanimous in panning the EPA guidance. Responding to such criticism, the agency formed a new advisory committee, which now affords state and local environmental officials more opportunity for comment. The old panel had been dominated by environmental justice advocates. EPA expects to receive recommendations from the advisory committee by the end of the calendar year.

No matter how the revised guidance takes shape, it must start with the premise that no segment of the population should suffer disproportionate health risks (particularly communities least able to afford adequate health care) and that all interested parties (especially permit applicants and permit holders) have a right to adequate notice and a reasonable opportunity to participate in the review process.

Prosecutors Lose Evidence to Landfill Federal prosecutors in Birmingham, Ala., were embarrassed to discover that a key piece of evidence in a major trial was treated as garbage.

A newly hired janitor, who says no one told him not to touch objects left in court, mistakenly threw away a hammer allegedly used to kill a government informant in 1991.

The hammer had been wrapped in a brown paper evidence bag and placed in a box on the prosecutors' table. It had been identified during testimony, but not formally introduced as evidence in the trial of Marvin Lee Holley.

Holley was on trial for conspiring to distribute drugs, managing a drug enterprise and soliciting the murders of other witnesses.

When prosecutors arrived in court the next day and noticed the hammer was gone, they spoke with the building staff. They then dispatched federal agents to a Walker County landfill where search efforts were unsuccessful.

"It is the opinion of the people who run the landfill that 350,000 pounds of garbage already are on top of it," U.S. District Judge Sharon Lovelace Blackburn told jurors. She allowed the government to introduce photos of the hammer into evidence.

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