GLELC Publishes Report Detailing How Supplemental Environmental Projects Can Promote Environmental Justice in Michigan

The Great Lakes Environmental Law Center is proud to release its latest report, titled “Furthering Environmental Justice in Air Quality Enforcement with Supplemental Environmental Projects.” The report details how supplemental environmental projects may be used to promote environmental justice in the context of air quality enforcement, the current obstacles in the Michigan Department of Environmental Quality’s (MDEQ) policy that prevent the wider use of supplemental environmental projects, and provides recommendations for how the MDEQ’s policy may be amended to better promote environmental justice through the use of supplemental environmental projects.

Supplemental environmental projects are environmentally beneficial projects that a violator agrees to undertake pursuant to an enforcement action that was initiated due to a violation of an air quality standard. For example, a supplemental environmental project may consist of a violator of an air quality standard agreeing to purchase and install a state-of-the-art air filtration system in a nearby school to improve indoor air quality, or agreeing to replace or retrofit old diesel engines in the community to improve outdoor air quality.

Particularly in Michigan, environmental justice communities often prefer that an enforcement action include a supplemental environmental project (SEP) because monetary penalties for air quality violations go to the state general fund and fail to provide community members with any form of redress for the excessive risk they have been exposed to due to the violation. As a result, supplemental environmental projects are a key method to further environmental justice. However, the MDEQ’s current supplemental environmental project actively disincentivizes the inclusion of supplemental environmental projects in negotiated settlements because a settlement with a SEP is inevitably more expensive than a settlement without a SEP. As a result, supplemental environmental projects are an underutilized tool to further environmental justice in Michigan.

This report is meant to serve as a resource for organizations and residents that are interested in how air quality enforcement interacts with the concept of environmental justice, and how supplemental environmental projects may be used to promote environmental justice. It is also meant to serve as a resource for state environmental quality agencies, particularly the Michigan Department of Environmental Quality, that are interested in promoting the use of supplemental environmental projects.

Read the full report here:

https://drive.google.com/open?id=1HrL3ZTqAmmrA7joibGuOykiLJO264H1V

This report was made possible with funding from the Center for Urban Responses to Environmental Stressors (CURES), an environmental health sciences core center headquartered at Wayne State University. Please read more about their work at: https://cures.wayne.edu

GLELC Visits Mosques to Discuss the Michigan Department of Environmental Quality's Obligations To Engage Yemeni and Bengali Residents Regarding Proposal to Expand Hazardous Waste Facility

The Great Lakes Environmental Law Center visited two mosques in Detroit and Hamtramck before Friday prayer on July 20, 2018 and spoke to the respective congregations about the proposal to expand U.S. Ecology’s hazardous waste facility, as well as the need for the Michigan Department of Environmental Quality to provide translation services to the Yemeni and Bengali communities.

U.S. Ecology is a hazardous waste treatment and storage facility that is located at 6520 Georgia Street on Detroit’s east side. The facility has proposed a 9-fold expansion in its storage capacity, and a 3-fold expansion in its treatment capacity. The Michigan Department of Environmental Quality held a public hearing regarding the proposal in 2015, but has refused requests from the Great Lakes Environmental Law Center and the Coalition to Oppose the Expansion of U.S. Ecology to hold another public hearing.Pursuant to Title VI of the Civil Rights Act of 1964, the U.S. Environmental Protection Agency has enacted regulations that requires any state environmental department that receives EPA assistance, including the MDEQ, to not discriminate on the basis of national origin. The prohibition against discrimination on the basis of national origin specifically prohibits conduct that has a disproportionate effect on people that speak or understand limited English. As such, EPA regulations affirmatively requires the MDEQ to provide people that speak or understand limited English with the ability to meaningfully access its programs.

While the MDEQ has held a public hearing regarding the proposed expansion, as required by law, it did not provide any notice of the public hearing in Arabic or Bengali. It also did not translate other vital documents, such as the fact sheet that describes the basic information about U.S. Ecology’s proposal, into Arabic or Bengali.

According to data from the U.S. Census Bureau, there are significant number of immigrants nearby U.S. Ecology, most of which are Yemeni or Bengali. One mosque that we visited on Friday is approximately 1,600 feet from the fence line of U.S. Ecology. Additionally, in the neighborhood surrounding the Hamtramck Public Library, which was the location of the MDEQ’s public hearing regarding U.S. Ecology in 2015, approximately 47% of people are immigrants and 20% speak limited English.

While the Center wrote a letter detailing these concerns to the MDEQ in early June, we have not received any response. We are urging concerned residents to contact Richard Conforti and Katie Kruse at the Michigan Department of Environmental Quality, whose contact information is provided below. Concerned residents should urge the MDEQ to:

  • Comply with EPA non-discrimination regulations, which prohibits the MDEQ from discriminating on the basis of national origin.
  • Hold an additional public hearing, with notice of the hearing provided in both Bengali and Arabic
  • Provide information regarding the proposed expansion of U.S. Ecology in both Arabic and Bengali so that all community residents can provide the MDEQ with meaningful input.

Richard Conforti, Waste Management and Radiological Protection Division

 

Katie Kruse, Environmental Justice Liaison:

Concerned residents can also distribute flyers with information about U.S. Ecology and the MDEQ’s obligation to provide information in Bengali and Arabic to others in their community. Flyers are available in Arabic, Bengali, and English via the links below:

Bengali Flyer
https://drive.google.com/file/d/1Bw2H9ZdvjyoY43P9grE29wDWXss_Xfxr/view?usp=sharing

Arabic Flyer
https://drive.google.com/file/d/1JElTGNxud-fXjuePKt9dgMzpl6Yz1z8v/view?usp=sharing

English Flyer
https://drive.google.com/file/d/1U8v0TEdBVvpQqXhE9pzejahmzRy5JTr6/view?usp=sharing

Michigan Supreme Court Issues Key Decision In Favor Of Community Residents and Environmental Organizations in South Dearborn Air Permitting Case

This week, the Michigan Supreme Court issued a key ruling in an air permitting case involving AK Steel in South Dearborn. The Great Lakes Environmental Law Center and Olson, Bzdok & Howard P.C. served as plaintiff counsel in the case. Chris Bzdok from Olson, Bzdok & Howard P.C.  argued the case in the Michigan Supreme Court. In South Dearborn Environmental Improvement Association, Inc. v. Department of Environmental Quality, by a 4-3 decision, the court held that a petition for judicial review of the issuance or denial of a permit to install for an existing source must be filed within 90 days of the Michigan Department of Environmental Quality’s final permit action. In ruling that the petition for review must be filed within 90 days, the Michigan Supreme Court overruled the decision of the Michigan Court of Appeals, which found a petition for review must be filed within 60 days, and rejected the position of AK Steel and the Michigan Department of Environmental Quality, both of which argued that a petition for review must be filed within 21 days.

 

The ruling of the Michigan Supreme Court is significant for two primary reasons. First and foremost, since the plaintiff’s permit challenge was filed within 59 days, which is well within the 90-day filing period the court found to be applicable, the challenge can now move forward to the substantive issue. Second, this ruling is significant because it is generally favorable for environmental organizations that may seek to challenge permits to install for existing air pollution sources going forward. The Michigan Supreme Court held that the permit appeal at issue must have been filed within a 90 days, as opposed to the 60 days previously required by the Michigan Court of Appeals or the 21 days argued for by AK Steel and MDEQ. In doing so, it has ensured that residents and environmental organizations will have 90 days should they wish to challenge permits to install issued by the MDEQ to existing facilities. This grants residents and environmental organizations with a sufficient amount of time to file their appeal, and ensures that they will have their day in court.

With the decision from the Michigan Supreme Court, the case will now go back to the state circuit court for consideration of the substantive issues involved in the MDEQ’s permitting decision. The key substantive issue is whether the Michigan Department of Environmental Quality had the legal authority to issue a correction to an existing permit to install and to “grandfather” the correction by applying the laws and regulations that existed at the time when the original permit was issued, rather than at the time the revised permit. The Great Lakes Environmental Law Center has argued that the MDEQ lacked authority to revise a permit to install. Instead, it must issue a new permit to install and apply the more stringent air quality regulations that were in effect at the time of permitting. We’re looking forward to litigating the substantive issues in the case.

Say Hello to Erin Mette, the Center's 2018 Equal Justice Works Fellow!

The Great Lakes Environmental Law Center is excited to announce that in September 2018 it will welcome Erin Mette, who will join the Center as an Equal Justice Works fellow. Erin’s fellowship project will focus on protecting children in Detroit and Flint from home-based environmental health hazards by providing legal counseling and representation to affected families and advocating for policy that addresses the root causes of this unique environmental justice issue.

For too many residents in environmental justice communities, their home is a hazard to their health. Home-based environmental health hazards include lead paint on the walls of older homes and a lack of access to clean drinking water due to lead contamination and water service shutoffs. Many of these homes that contain environmental health hazards are the homes of children, who are especially vulnerable to the life-long health impacts that these hazards cause. Additionally, these hazards disproportionately affect children in low-income communities of color, whose voices have typically been excluded from the process of creating and enforcing the standards meant to prevent such harms. The families impacted by home-based environmental health hazards overwhelmingly lack access to legal services to help them address these issues. Through her Equal Justice Works fellowship, Erin will provide a wide variety of direct legal services to families confronting home-based environmental health hazards to ensure that those families are being adequately protected from such hazards.

Erin’s Equal Justice Works fellowship is for a term of two years and is sponsored by Munger, Tolles & Olson LLP and an anonymous donor. Equal Justice Works is a nonprofit corporation dedicated to creating a just society by mobilizing the next generation of lawyers committed to equal justice. Each year, it provides funding to a limited number of applicants that have proposed innovative public interest law projects that seek to address pressing legal issues around the country through a highly competitive and rigorous process. Erin is the Center’s second Equal Justice Works fellow. The Center’s current staff attorney, Nick Leonard, initially joined the organization in 2014 through an Equal Justice Works fellowship.

Erin Mette is a 2018 graduate of Wayne Law and also holds a Master of Science from the University of Michigan School of Natural Resources and Environment as well as a Bachelor of Arts from Kalamazoo College. During her time at Wayne Law, she was a student in the Transnational Environmental Law Clinic. 

After public hearing CMS Energy withdraws application to expand power plant across from Salina Elementary School

Dearborn Industrial Generation, owned by CMS Energy, has withdrawn its application to install an additional 263 megawatt combustion turbine generator at its natural gas-fired power plant located across from Salina Elementary School at 2400 Miller Road in Dearborn, Michigan. The expansion was estimated to result in significant increases in a number of air pollutants, including 416 tons per year of nitrogen oxides, 913 tons per year of carbon monoxide, and 167 tons per year of volatile organic compounds.

The power plant is located within 700 feet of Salina Elementary, and is nearby a community with a large immigrant population. It is located in close proximity to other major sources of air pollution, including AK Steel and the Ford Rouge Complex. At the public hearing, community residents expressed concerns about the potential health impacts that would result from allowing more air pollution to be emitted close to an elementary school in a neighborhood that already suffers from poor air quality. Many asserted that allowing a facility to increase its air pollution in a predominantly immigrant community would amount to an environmental injustice. 

Early on, Great Lakes Environmental Law Center identified the proposed expansion as a potential environmental justice issue. While the MDEQ initially proposed a 30-day public comment period in October, the Center identified that none of the public notice and comment documents provided by the MDEQ were available in Arabic despite 40% of residents in the community having limited English proficiency. Based on concerns raised by the Center that residents would not be able to effectively participate in the public comment process, the MDEQ extended the public comment period by two months and translated some of its public participation documents into Arabic. “When DEQ considers applications for facilities that will be located in areas where there is a significant minority or low income or non-native English speaking population, it must adhere to basic environmental justice principles,” said Oday Salim, Executive Director and Managing Attorney of the Great Lakes Environmental Law Center. He  added “Providing 30 days of public comment with no real local outreach and no translation into Arabic and other relevant languages was inexcusable. Thank goodness the Southend Dearborn community was brave and resilient enough to make their voices heard.”

The Center worked with several residents and organizations to develop lengthy written comments in opposition to the proposed expansion. With the assistance of students from the Wayne State University Law School Transnational Environmental Law Clinic, the Center identified several legal issues regarding the proposed expansion and presented those concerns to the MDEQ. “The Clean Air Act requires that major modifications at major air pollution sources such as this facility install the best available control technology to control emissions and preserve air quality in the area. We identified other similar facilities that used more effective pollution control technology” said Nick Leonard, Staff Attorney of the Great Lakes Environmental Law Center.

All people, especially children, should be able to breathe freely in the places that they live, work, go to school, and play -- no matter their race, national origin, or income level. Moving forward, DEQ needs to learn from this experience and improve its permitting approach in environmental justice communities.

SAVE THE DATE!

4TH ANNUAL BLUE WATER BASH
THURSDAY, NOVEMBER 9, 6:30-10PM
TONY V'S (5756 Cass Ave Detroit, MI)

Our 4th Annual Blue Water Bash is coming up! At the Bash, we get to thank the communities we work with & our clients, our staff & board, the students & interns who devote their time to our cause, and our funders & collaborators.

We also recognize the value of journalism to our work and the work of other environmental professionals by presenting our Excellence in Environmental Journalism award. This year, we are celebrating the contributions of Anna Clark. Anna has written numerous articles about the Flint water crisis and is currently writing a book about the subject. She has written about the continuous evolution of Detroit and other Michigan cities. And she is a tireless advocate of journalism as an institution. You can find her work here.

Please join us. There will be food, refreshments, and great tunes. Tickets are $15 and can be purchased beforehand online with a credit card, or at the event with cash or check.