The NAM filed an amicus brief with the American Chemistry Council and the Chemical Industry of New Jersey on 6/29/01 opposing a citizen suit alleging that state environmental permits discriminate against racial or ethnic groups. This case involves the proposed development of a "brownfield," an area of abandoned, inactive or underutilized industrial sites that are located in urban areas that are disproportionately populated by minority and/or low-income citizens. Development of these sites attracts new industrial facilities, providing net benefits to their communities.The Third Circuit had wisely granted a stay of the district court’s decision, thus allowing St. Lawrence Cement Co. to start operations and remain open until a Merits Panel could hear the case. The district court 5/10 ignored the U.S. Supreme Court’s 4/24 Sandoval decision, which said private individuals may not sue states under Civil Right Act Title VI over unintended consequences of state agency decisions, including permits for manufacturing facilities.
The NAM's brief argued that EPA's "disparate impact" regulations cannot be enforced by private plaintiffs under 42 U.S.C. § 1983, nor can they be enforced by private plaintiffs under section 602 of Title VI of the Civil Rights Act of 1964. Such claims are "so vague and amorphous -- so subjective and standardless-- that they strain judicial competence." The NAM brief said the district court ruling "opens up state environmental permits to collateral attacks in federal court . . . based on criteria that are not clearly delineated, understood or agreed upon." In addition, it "will result in federal courts throughout the nation sitting as local zoning boards reviewing environmental permit decisions."
On 12/17/01, the Third Circuit agreed, ruling that there is no private right of action under Section 602 of the Civil Rights Act to enforce the "disparate impact" rules of the EPA.