Pollution: Dumping on the Poor?
By Lorraine Woellert, Business Week

In March, 2000, New Jersey Governor Christine Todd Whitman attended the ground- breaking ceremony for a $50 million cement manufacturing plant in Camden. It was a momentous occasion-the first economic investment the troubled city had seen in decades. "Company officials had their pick of a number of sites along the East Coast, but they chose Camden," Whitman boasted at the dedication ceremony.

But not everyone in Camden welcomed the St. Lawrence Cement Group plant. The factory is at the center of a national battle over "environmental justice." The question: Are poor and ethnic communities saddled with more than their fair share of polluting facilities?

Yes, charges a local residents' group, South Camden Citizens in Action. The group filed a suit against New Jersey's Environmental Protection Dept. alleging environmental racism-and if it wins, the victory could bring new headaches for business. "This case is a road map for environmental justice advocates," says Luke W. Cole, director of the Center on Race, Poverty & the Environment in San Francisco and a lawyer in the case. Companies retort that it's an example of environmental do-gooding run amok-and could end up hurting the very people it's trying to protect.

TOUGH JUDGE? The Camden group's first win came in April. District Court Judge Stephen M. Orlofsky ruled that New Jersey's permitting process had discriminated against Camden residents by concentrating a polluting industry in a minority area that already was "environmentally burdened"-even though the company easily met all environmental regs. Citing the 1964 Civil Rights Act, which restricts policies that unfairly affect minorities, the judge found that the neighborhood would be "irreparably harmed" by new particulate and ozone pollution from the cement plant and the thousands of trucks that would troop into the facility every year. The case, however, is unfolding on unexplored legal ground. Judge Orlofsky's original decision was undercut by a Supreme Court ruling, which prompted him to shift to a different section of civil rights law to justify his decision. He issued an injunction blocking the plant from opening, but the injunction was vacated by the same Appeals Court that could rule on the Camden case by the end of this year. And the likely outcome? "It's hazardous to try to guess which way they'll go," says Sheila R.

Foster, a visiting professor of law at Fordham University in New York. If the citizens' group prevails, it will be the first major victory for the 15-year-old environmental justice movement. Originally, groups filed complaints with the U.S. Environmental Protection Agency, which under the Civil Rights Act must withhold funding to local enviro agencies in states or cities with unfair policies. But the EPA has acted on only one such complaint-ruling against the activists-in the past three decades. Whitman, now EPA chief, didappoint a task force to clear out the backlog. "We've already initiated several investigations," says task force head Gail Ginsberg. But activists are skeptical. "The EPA has been completely absent in termsof enforcement," charges Cole.

DUMPING GROUND. That's why the activists have turned to the courts. The Camden case is the first big test of the new strategy. The effort started when concerned local residents banded together and contacted Cole's group and the Public Interest Law Center of Philadelphia. Working pro bono, the lawyers helped the group charge New Jersey with violating local residents' civil rights. The grounds: The state allowed the cement mill to be built inan area that's 81% African American and 12% Latino-and where many residentsalready have health problems. With several manufacturing plants, two sewage treatment facilities, and an incinerator operating nearby, Camden had become an industrial dumping ground for the state, residents say. Scenting victory in Camden, environmental groups are plotting bigger things.

On Nov. 1, representatives from the Natural Resources Defense Council, NAACP, Earthjustice, and others gathered in Washington to map a strategy for taking the legal effort nationwide. They are preparing lawsuits in California, New York, and Michigan, and another in New Jersey.

After years of being minor annoyances to business, environmental justice activists are setting off alarms in boardrooms. With George W. Bush in the White House, industry thought it was relatively safe from "green" assaults. Now, companies are rushing to fight back. Business has assembled a blue-chip list of corporate lawyers from groups such as the National Association of Manufacturers (NAM), the American Chemistry Council, and the U.S. Chamber of Commerce to battle the Camden case. Company execs argue that environmental justice actually hurts the people it is trying to help by denying them new jobs and economic investment. The movement, execs say, could undermine so-called empowerment zones, in which companies are given tax breaks to locate in blighted communities.

Indeed, Corporate America charges that a court ruling against St. Lawrence would have a chilling effect on investment in cities. Execs say they would have to take a wide range of demographics into account on every permit process or face the prospect of having a court revoke the permit. "It creates tremendous uncertainty," says Keith McCoy, director of environmental quality at the NAM. "Companies will be hesitant to locate into these communities." Certainly, St. Law- rence might have thought twice about putting its 15-employee plant in Camden. It fumes that a court ruling against it would amount to an unfair changing of the rules. After spending two years and millions of dollars on the permit process, it faces the threat of a shutdown. "This is a port district. It's zoned heavy industrial," says St. Lawrence attorney Brian Montag, a partner at Pitney, Hardin, Kipp & Szuch in Morristown, N.J. "We did everything you can possibly require." If the activists have their way, the message will be widely broadcast that everything wasn't enough. Each side vows to appeal to the U.S. Supreme Court if it loses. Whatever the eventual ruling, the implications of the Camden case will ripple across the business landscape for years to come.

Copyright (c) 2001, The Business Week. Lorraine Woellert in Washington,Pollution: Dumping on the Poor? 11-19-2001