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Re: E-M:/ NJ Env. Justice court decision available online



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Enviro-Mich message from Chad Bailey <crbailey@umich.edu>
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> Actually, the judge's decision that there is a private right of action under Title
> VI regulations is not novel -- almost every Circuit Court of Appeals in the
> country that has faced this issue (including our own Sixth Circuit) has
> effectively held that there is a private right of action and many people believe
> that past Supreme Court precedent supported those decisions.

However, some of the early EJ cases in Houston and since have held that
though a private right of action exists under Title VI, it must be
demonstrated that discrimination was carried out intentionally.  In Bean
v. Southwestern Waste Mgmt, for instance, the US District Court for the
Southern District of Texas established that plaintiffs did not establish
substantial likelihood of proving purposeful discrimination in granting a
waste facility a permit to site in a predominantly African American
Community (1979).  This is fairly consistent with decided law.  While
discrimination may be present in agency discrimination, Title VI is not
subject to private action unless it is intentional.

> Unfortunately, the current Supreme Court disagreed with this history and, today in
> a typical 5-4 decision, held that there is no private right of action to enforce
> regulations issued under Title VI of the Civil Rights Act.  The full decision is
> available at  http://supct.law.cornell.edu/supct/html/99-1908.ZS.html.

Unfortunatly, its primary finding in the case was:
"There is no private right of action to enforce disparate-impact
regulations promulgated under Title VI."

It's consistent, but definitely anti-civil rights.
> 
> 
> 
> Terry Lodge wrote:
> 
> > -------------------------------------------------------------------------
> > Enviro-Mich message from Terry Lodge <tjlodge50@yahoo.com>
> > -------------------------------------------------------------------------
> >
> >    As a followup to Anne Woiwode's post on this
> > remarkable decision, you may view the full text of it
> > at
> >
> > http://lawlibrary.rutgers.edu/fed/html/ca01-702-2.html
> >
> >    One disturbing footnote: the federal judge in this
> > case made a determination that there is a private
> > right of plaintiffs to sue based upon Title VI of the
> > Civil Rights Act of 1964, which meant that the
> > plaintiffs could be awarded the injunction they were
> > seeking.
> >
> >    This is a rather novel interpretation of the law
> > and, as Judge Orlofsky noted, this very issue is
> > currently pending before the U.S. Supreme Court, and
> > likely to be decided within 2 months. If the Supremes
> > rule that there is no private citizen's right to bring
> > EJ lawsuits - certainly what I would anticipate
> > Scalia, Rehnquist and the rest of that bunch to do -
> > then citizens who allege discriminatory
> > pollution-permitting will have to look to a
> > governmental agency to uphold their civil rights.
> > That's not very promising.
> >
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> --
> ÿWPC¿
> 
> 




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