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Week 37 (2018)

Week of September 10, 2018 through September 14, 2018

Sierra Club v. Virginia Elec. & Power Co. (Neimeyer 9/12/2018): The Fourth Circuit held that the landfill and settling ponds owned by a power company were not “point sources” under the Clean Water Act. The Fourth Circuit reversed the district court holding about the categorization of “point sources,” but did affirm the holding that the power company did not violate the discharge permits because the permits did not regulate groundwater contamination. Full Opinion


Highlight Case

Reyes v. Waples Mobile Home Park Ltd. P’ship, No. 17-1723

Decided: September 12, 2018

The Fourth Circuit vacated a district court’s granting of summary judgment for violation of a claim under the Fair Housing Act and remanded so the district court could consider the disparate-impact theory of liability.

Four Latino families lived in Waples Mobile Home Park (“Waples”). Waples had an unenforced policy that every adult tenant must show documentation of United States citizenship or other legal documentation in order to live in the park and annually renew leases. Of the four Latino families filing this suit, the husbands and children had the proper documentation, but the wives did not. Around 2015, Waples started enforcing the non-renewal policy. The families were not allowed to renew, were placed on a month-to-month tenancy, and were issued a $100 monthly surcharge because they could not provide the necessary documentation. The district court dismissed this action in the summary judgment stage.

To bring a cause of action under disparate-impact theory of liability, a plaintiff must show that the practices have a disproportionally adverse effect on minorities and are otherwise unjustified by a legitimate rationale. This is a three-step, burden-shifting framework. The plaintiff must demonstrate a robust causal connection between the policy and the disparate impact on the protected class. Next, the defendant has the burden of persuasion to state and explain the valid interest served by their policy. Finally, the plaintiff must bear the burden of proof that the defendant’s asserted interests could be served by another practice that has a less discriminatory effect. The court relied heavily on the Supreme Court’s decision and guidance in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

The Fourth Circuit held that the plaintiffs made a prima facie case that the policy disparately impacted Latinos. The court made a distinction between the illegal immigrant status of the females in this case from their identity as Latinos, which is a protected class.

Judge Keenan dissented and would affirm the district court’s granting of summary judgment because she did not believe the plaintiffs asserted facts satisfying the robust casualty standard from Inclusive Communities. Instead of directly and disproportionately targeting Latinos, she found the policy to have a disproportionately disparate Latinos merely because they are the majority of the undocumented population in the geographic area of this mobile home park.

Full Opinion

Maura Ashton