NAACP v. Engler: Court Enjoins State of Michigan From Issuing Permits Until System of Environmental Protection is Reformed and Requires State To Consider Cumulative Burdens on Affected Communities.For more information, contact:
Kary L. Moss, Executive Director
NLG/Sugar Law Center, 313-962-6540
e mail: guildlaw@oeonline.com
Date: June 23, 1997Background
On May 29, 1997, Judge Archie Hayman, of the Geneseee County Circuit Court, rendered a decision in the case NAACP v. Engler, brought by the NAACP-Flint Chapter, United for Action, a local a community organization, and two individuals, Janice O'Neal and Lillian Robinson. Plaintiffs were represented by Kary Moss and Bill Lienhard, of the NLG/Sugar Law Center, with attorneys Tom Stephens and Michael Haddad acting as co-counsel.
The case began after the Department of Environmental Quality (MDEQ) (then the Michigan Department of Natural Resources) issued a permit to the Genesee Power Station, whose fuel supply included construction and demolition wood containing lead based paint. The permit allowed lead emissions of 2.4 tons per year in an already overburdened African-American community.
The Court issued an injunction prohibiting the State of Michigan from granting any more permits until it had reformed its system of environmental protection, including the requirement that the State perform risk assessments, at the cost of the applicant, and reform its public hearing process, which the court found was not "meaningful." The Court made numerous findings of fact and conclusions of law which are excerpted here:
COURT FINDS THAT MDEQ POLICIES FAIL TO PROTECT THE PUBLIC HEALTH
The Michigan Department of Environmental Quality's failure to take into consideration the multiple pathways of lead exposure in analyzing the risk to the community is violative . . . of its duty under the Constitution to protect the health, safety and welfare of the citizens of this State. (P. 17).
The Michigan Department of Environmental Quality's failure to take into consideration the urban environment and the existing sources of pollution therein is violative of its duty under the Constitution to protect the health, safety and welfare of the citizens of this state. (P. 17).
This Court also finds that the Defendant violated the Michigan Air Act by failing to perform a Risk Assessment Analysis in this case. The Michigan Clean Air Act states in Section B: "The Michigan Department of Environmental Quality may deny or revoke a permit if installation of the source presents or may present an imminent and substantial risk to human health, safety or welfare, or the environment." Unless the MDEQ performs a Risk Assessment to determine the impact of the plant in the surrounding area, at least within a five mile radius, it cannot conclude that the plant does not violate this provision and must therefore refuse to grant a permit." (P. 43).
The license granted by the MDEQ is merely a permit and not a Federal order to do so. A State which stops a power company from operating until it meets reasonable standards or provides a risk assessment is not frustrating a federal mandate. (P. 43).
The Court believes that the facts of this case and the law of the land require that as part of the permit review process the M.D.E.Q. should be required to perform Risk Assessment Analysis at the cost of the proposed facility and not the public. (P. 33).
Based on the evidence presented in this case, this Court has concluded that the policies of the MDEQ do not protect the health, safety and welfare of all citizens in Michigan in circumstances such as are before this Court. (P. 38).
Under the facts of this case, the Court holds that the policies and regulations that are enforced by the State do not go far enough to carry out the duty the State has under the Constitution to protect the health, safety and welfare of its citizens, regardless of their race. (P. 40).
THE URBAN ENVIRONMENT: CONCENTRATION OF WASTE FACILITIES AND CUMULATIVE EXPOSURES
The Court focused on the "urban environment" and, in particular, on cumulative burdens of pollution and multiple pathways of exposure. The State had defended its refusal to require environmental impact statements or risk assessments on the grounds that it need only evaluate whether a particular permit will comply with the Clean Air Act's National Ambient Air Quality Standards and relevant state regulations. The Court rejected this defense., concluding that "Defendant's permit review process does not adequately account for pollution in the urban environment." (P. 15). Significant findings include:
Actual and potential environmental hazards, including hazardous waste generation facilities, solid waste disposal facilities, hazardous treatment and storage disposal facilities are concentrated in the area near the Genesee Power Station. (P. 13)
The cumulative impact of multiple sources emitting multiple pollutants through multiple pathways of exposure is a significant burden on the Genesee County communities near the Genesee Power Station. (P. 14).
The mere fact that an area is in compliance with the [National Ambient Air Quality Standards] does not mean that . . .particular community is not adversely affected by pollution. (P. 14) . . . Since the State has taken the position that they are only concerned with meeting the [National Ambient Air Quality Standards], there was no Risk Assessment Study required to determine the impact of introducing this additional two tons of pollution into an environment that already is beyond being safe due to pollution sources. The failure of the State to perform this Assessment Study and consider it in its decision to grant a permit in this area violates the health, safety and welfare of the residents in the City of Flint, both black and white. (P. 42).
The Defendant would like to lead this Court to believe that they should only be concerned about the pollution that is found in the ambient air. But it is clear from the expert testimony in this case that the Court should also consider the pollution that these facilities deposit into the soil when defining the total contribution that a polluting facility brings to the environment. (P. 37).
AFRICAN-AMERICANS AND DISPROPORTIONATE EXPOSURES
The Court rejected the Plaintiffs' claim that the State's permit review process had a disproportionate impact on the basis of race because it was not the "sole" cause of the problem. Nonetheless, the Court made a number of findings of fact which confirm that African-American communities will "suffer disproportionately." For example:
African-Americans comprise the majority of the population living within three miles of the Genesee Power Station and will suffer disproportionately from it. (P. 14).
African Americans comprise approximately 19.6 percent of the population of Genesee County and 13.9 percent of the population of the State of Michigan . . . . The population living within three miles of any of the top 15 polluters in Genesee County, in terms of pounds of pollutants per year per person, is 39.1 percent African-American. (P. 14).
The Court adopts by reference the comment of [plaintiff's expert, a census demographer] William Cooper : "Well, the overall conclusion is that African-Americans are disproportionately impacted by air emissions in Genesee County as of 1994." (P. 22).
This Court adopts by reference the comments of [MDEQ Deputy Director] Dennis Drake . . . He's quoted as saying, "My understanding of the exposure of lead is affected greatly by the lead content of paint in older homes, and that persons of color are more likely to reside in older homes because persons of color tend to be at the lower economic scale, and therefore, I would suspect that they would have a higher exposure to lead paint." (P. 25).
This Court adopts by reference the comments of MDEQ Deputy Director Dennis M. Drake . . . where he's quoted as saying, "I believe that generally there are higher levels of pollution in urban neighborhoods and in more highly industrialized neighborhoods. And I believe also that generally the population of those neighborhoods includes lower income and minority groups." (P. 24).
THE LACK OF ECONOMIC BENEFIT TO THE AFFECTED COMMUNITY
The court rejected the State's defense that a challenge to the permit review process would hurt economic growth: "The Defendants have argued that the City of Flint will benefit from the siting of this plant because it will provide employment opportunities to minorities in the area. The evidence presented in this case refutes that claim. The plant as constructed at a cost of at least eighty million dollars and there's no evidence that one minority was employed in its construction. There are 30 permanent jobs in this plant and out of this only one minority, at most was hired to work there. The evidence shows that the minority was hired at minimum wage." (P. 45).
He further stated: [T]he people who will benefit from the profits of the plant do not reside in the neighborhood. However, those who will bear the brunt of the pollution cannot even obtain employment in the plant. (P. 45).
LEAD EXPOSURE AND CHILDREN
Of special concern throughout the case was the amount of lead emissions allowed by the air permit (2.4 tons per year), coupled with the known levels of elevated blood lead levels among African-American children living in the area near the site. Plaintiffs relied upon the expert testimony of the Genesee County Department of Public Health (Mark Valacek), who had documented reports of elevated blood lead levels throughout the community, Dr. Stuart Batterman, of the University of Michigan's School of Public Health, who described lead emissions from the plant and critiqued the pollution control technology, and Dr. Rebecca Bascom, of the University of Maryland School of Medicine, who concluded that a positive public health policy required a strategy of lead reduction in communities like Flint.
The Court found:
At least 50 percent of the children in the northern sector of Genesee County exceed the maximum level of lead exposure as defined by the health community. (P. 16).
Although ambient air lead exposure is low in comparison to pathways for lead exposure, when you combine the ambient air lead exposure with soil lead exposure it accounts for at least 15 percent of the lead exposure for children. Soil lead is increased due to the ambient air lead depositing in the soil. (P. 17).
Lead exposure in children causes significant health and mental risks to children. It can affect brain development and school performance. It can lead to mental retardation (p. 19)
The soil in that area contains levels of lead substantially above state-wide background levels, exposing the local population to significant health risks even without additional pollution sources, such as the Genesee Power Station. (P. 18-19).
Roughly 90 percent of the individuals referred to the Genesee County Health Department due to elevated blood lead levels between 1988 and 1994 reside in the northern section of Flint where the Genesee Power Station is located. (P. 14).
The Court . . adopts by reference the comment of Rebecca Bascom . . . "Because there are a substantial number of individual children who already have a toxic level of lead in their body and are living in areas that have soil reservoirs. And in the context of the NAAQ Standard, additional exposure would not protect their health. The only thing that would protect their health would be reducing exposure." (P. 21).
PUBLIC HEARING/PUBLIC COMMENT PROCESS
Michigan law requires that certain permit applications be subject to a public participation/public hearing requirement. In this case, the State gave 30 days notice of a public hearing, which was later extended another 30 days, with a public hearing convened on December 1, 1992 for a decision on the permit. The public was made to sit for twelve hours while the decision-making body, the Michigan Air Pollution Control Commission, took care of other business. They were also handed a revised draft permit that afternoon, leaving no time for review by experts. The hearing was also convened in Lansing, over an hour from the proposed site, thus forcing Flint residents to rent a bus, find child care, and go through much inconvenience.
Much of the trial testimony focused on the hearing of December 1, 1992, and on the unequal playing field with industry afforded numerous opportunities for informal and formal input and assistance from the DEQ's employees. At the same time, low-income communities lack the financial resources to hire scientific and technical experts to marshal the arguments necessary to counter the applicant's assertion that a particular permit will adequately protect the public health.
One special problem that attracted the court's attention was that the local zoning board (Genesee Township) which authorized the initial siting was in a different jurisdiction that the community which would suffer the primary impact.
The opportunity to make public comment without the power to apply political pressure on the decision makers does not constitute a situation where people who are affected have a real voice in the decision (p. 18).
Another problem that exists in this case is with the Defendant's failure to provide a meaningful avenue for cities and other governmental units, who are in the situation that Flint is in this case, to have a meaningful and knowledgeable opportunity to have its concerns and those of its residents considered in the siting process involving plants that are located in another jurisdiction, but which pollute adjoining governmental units. (P. 43).
The State's position that zoning is a local issue is harmful to the health, safety and welfare of citizens who are situated like Flint who do not have a voice at zoning board meetings that are held outside of their communities. In these situations the State must have in place a procedure that gives adjoining communities a fair opportunity to be notified and heard concerning the siting of pollution facilities near their borders that pollute their communities." (P. 44).
THE COURT'S REMEDY
The Court gave the State 180 days to come up with proposed policies and procedures that would cover the scope of the risk assessment/environmental impact statements and methods to improve the public hearing process. Plaintiffs then have 90 days to review the proposal, file objections, and make a counter-proposal. Plaintiffs have filed a motion seeking to have an evidentiary hearing on the scope of the remedy which would include expert testimony on the questions of how to improve the public participation process and ways in which cumulative exposures and multiple pathways of exposure can be included in the environmental impact statements/risk assessments.
In particular, the Court stated:
Given that this Court has concluded that the State has violated its constitutional duty to protect the health, safety and welfare of its citizens by failing to enact policies that protect cities like Flint and its residents and given them a fair opportunity to be heard in a meaningful way, this Court concludes that there is no remedy at law and therefore it is appropriate to exercise its equitable power and to grant an injunction against the Michigan Department of Environmental Quality preventing it from granting permits to major pollution sources ˜ until a Risk Assessment is performed and those interested parties and governmental units that will be impacted based upon the Risk Assessment Study are notified and given an opportunity to be heard before the Michigan Department of Environmental Quality. (P. 45).
It should be done at the cost of the major polluting facility. The public shouldn't have to pay it. . . . The MDEQ has to take that into consideration before it can grant the permit. And it has to also give interested parties and governmental units that study shows will be impacted by the pollution an opportunity to be heard and an . . . meaningful opportunity, not just an opportunity to come in front of the Commission and air their voices, but something meaningful, before zoning is granted for major polluting facilities and permits are granted. (P. 46).
This case, I think is a very important case from the standpoint that I think it points out that there needs to be additional legislation implemented, not only by the State Legislature but also by the Federal legislature, to protect cities and people under these circumstances. I do not think that the Michigan Department of Environmental Quality ought to be able to just throw up their hands and say it's a local issue with respect to zoning when it comes to major polluting sources. There ought to be direction from the Legislature that deals with local zoning issues and gives authority, which I think already exists under the Constitution, under the Michigan Air Act, that gives the State the authority to step in and deny local zoning where it is gonna cause problems to the health, safety and welfare of the communities and the citizens of this State. (P. 47).
THE MDEQ CAN DO SOMETHING ABOUT THIS AT LITTLE COST.
Throughout the trial the State Defendant attempted the argue that it would be impossible to require that it require the performance of environmental impact statements or risk assessments prior to authorizing a permit. The Court found, however, that such analyses would not be unduly burdensome, noting that one of the defendant's experts had admitted that the DEQ possessed software that allowed it to coordinate a map of a geographic area with census data and emissions data. (P. 27) (See also p. 23).
The Maurice and Jane Sugar Law Center for Economic and Social Justice, a project of the National Lawyers' Guild, was founded in 1991 on the principle that economic and civil rights are inseparable. Maurice Sugar was a prominent labor and civil rights attorney, General Counsel of the United Auto Workers, and songwriter, authoring the famous songs, "Soup Song" and "Sit Down."
