After decades of activism, a citizen lawsuit closed the incinerator in a matter of months.
The air pollution that made it difficult for residents at Detroit’s Robert Holmes Manor senior home to breathe inspired a poem from Linda Crittle, one of the apartment building’s residents. The fumes from vehicles on nearby Interstate 75 were one pollution source, but she wrote about another — Detroit’s trash-burning incinerator. She wrote the poem in 2019.
There also is an incinerator too nearby,
The odor from it will make you cry,
Either one of them could cause you to die.
Because of my income I cannot move right away,
I need some help concerning this I pray.
Crittle wasn’t alone in her distress. Life at Robert Holmes partly ran on the incinerator’s schedule — residents timed trips to the grocery store around the nearby facility’s stench. Others stayed indoors altogether, said Darryl Eley Jordan, a community outreach organizer with Eastern Michigan Environmental Action Committee (EMEAC).
For decades, the incinerator choked the city’s elderly and other residents in Midtown, Poletown, North End, and beyond with hundreds of tons annually of carbon monoxide, sulfur dioxide, nitrogen oxides, and particulate matter. Despite soaring asthma rates near the facility and regular resident complaints, Detroit Mayor Mike Duggan’s administration and state regulators at the Michigan Department of Environmental Quality (now the Michigan Department of Environment, Great Lakes and Energy) hardly raised a finger.
Instead, a coalition of environmental attorneys and activists confronted the dangerous polluter, first by running a decades-long campaign to raise awareness of the injustice, then by putting in motion a citizen lawsuit under the Clean Air Act. That sustained pressure would ultimately bring down the incinerator — faced with an unwinnable legal battle, high costs to bring the plant into compliance with air standards and mounting public pressure, the facility’s owner, Detroit Renewable Energy (DRE), opted to close it.
While Duggan and other politicians have since attempted to take credit for the closure, the case is a textbook example of how activism and environmental attorneys working together are effecting meaningful change when regulators and politicians fail to protect residents.
“This type of grassroots activism is essential to building the community support and knowledge necessary to get change to occur,” said Nick Leonard, an environmental attorney with the Great Lakes Environmental Law Center, which led the legal effort against DRE.
Detroit’s incinerator was the largest of its kind in the nation when it opened in 1986 about a half mile northeast of downtown and began spewing its toxic gasses in a low-income area that’s 75% Black. The garbage that sat in the facility emitted a noxious odor that hung in surrounding neighborhoods’ air, impacting 13 schools that operated within a 1.5-mile radius.
At the time it opened, the incinerator was touted by some as a “green” solution for disposing of trash while generating steam for the city’s downtown district and electricity to sell for distribution on the electrical grid.
But the project proved far from environmentally friendly, as GLELC’s investigation revealed. The incinerator had violated air quality standards an average of once every other day between 2013 and 2017. That included an at least 64-day period in which the facility’s pollution controls had failed, leaving it to pump dangerous particulate matter into the surrounding environment.
Instead of ordering the incinerator to quickly stop polluting and hitting it with a heavy fine, the DEQ ignored some violations and entered into an administrative agreement with the incinerator that included only minor changes to its operations and a small fine.
“Obviously, the DEQ made a mistake,” Leonard said.
‘It seemed insane to us’
The situation caught GLELC’s attention in 2009, and by 2016 it had joined Breathe Free Detroit, a nonprofit coalition that included the Ecology Center, EMEAC, residents living around the facility and more.
GLELC’s Freedom Of Information Act requests for the incinerators’ records revealed that the state “was basically not doing anything about” hundreds of emission violations, Leonard said. Among other problems, it had exceeded one-hour carbon monoxide emission limits at least 750 times between 2013 and 2017.
Records showed that the DEQ felt that the Clean Air Act’s carbon monoxide standards were too difficult for the incinerator to comply with, Leonard said. Instead of taking action after hourly violations of carbon monoxide standards, as the incinerator’s permit required, the DEQ allowed DRE to violate air standards for up to three consecutive hours.
“You know, it seemed insane to us and we were very concerned about that,” Leonard said. “That’s obviously not how the standard or emissions limit is written.”
Despite the hundreds of violations, the DEQ negotiated DRE’s punishment with the company. The state ultimately issued a low $149,000 fine for fewer than 10 violations, and it still didn’t order the incinerator to follow carbon monoxide standards.
The corner-cutting on carbon monoxide emissions and enforcement raised suspicion that something similar was happening with other pollutants, and GLELC’s decided to move forward with a lawsuit.
“The fact of the matter is the company was allowed to continue to operate in a way that was basically in regular violation of emissions limits,” Leonard said.
The Clean Air Act grants citizens the authority to bring lawsuits against polluters in such scenarios. In essence, Leonard said, residents and attorneys take on a “private attorney general role … and essentially enforce federal environmental laws” when regulators fail to act.
“It was specifically put into our federal environmental laws because there was concern that the state agencies and the federal EPA might not be as strict with enforcement as citizens might like,” Leonard said. “It’s a huge tool for environmental advocates everywhere.”
GLELC largely built the lawsuit around the carbon monoxide data and planned to ask a judge to order the incinerator to get into compliance with air quality standards. In January 2019, GLELC took the first step in the citizen lawsuit process — notifying DRE, the DEQ and EPA that it intended to sue.
DRE had 60 days to respond.
‘It was a constant fight’
In the incinerator’s shadow in Poletown East, the air regularly smelled sour and fishy, like “rotting trash,” said KT Andresky, a former Breathe Free Detroit director who lived down the street from the facility. During the summers, the offensive odor made it difficult to enjoy the outdoors or keep windows open.
Activists foresaw these and other health issues long before the incinerator opened, and they fought the plans tooth and nail as state lawmakers and former Detroit Mayor Coleman Young’s administration rammed them through during the late 1980s.
When the incinerator finally opened, the push continued.
“It was a constant fight to get it shut down, and throughout those years we worked so many angles,” Andresky said. Groups explored DRE’s financial ties, tried to “starve” it by boosting recycling programs, and worked with sympathetic state representatives like Rashida Tlaib, Isaac Robison, and Stephanie Chang. By 2015, activists ratcheted up public pressure and organized under the Breathe Free Detroit umbrella.
“There was a lot more unity and working together with so many community organizations and neighborhood associations — so many people,” Andresky said. “When you have people organizing and coming together like that to make their case, [DRE and politicians] are forced to listen.”
Meanwhile, EMEAC’s “street team” canvassed the neighborhoods around DRE, mobilizing residents who suffered from the incinerator’s pollution.
Some put plastic over their window to try to keep the stench out, and at the Robert Holmes senior home, residents simply stayed indoors, Jordan said. EMEAC and students from Wayne State’s University environmental justice program in 2019 met with residents to hear how the incinerator impacted their lives.
“We wanted to hear about how they were dealing with this stuff and hear what they had to say, and everybody had something to say,” Jordan said. “It was really real for them.”
Not only did EMEAC use residents’ stories to pressure policymakers but it “let [residents] know that they weren’t alone,” he added.
The efforts culminated in March 2018 when Breathe Free Detroit collected 15,000 signatures for a petition calling for the plant’s closure. The group dropped the petition on the mayor’s desk, and, in response, Duggan did nothing. Instead, his former chief of staff, Alexis Wiley, told Breathe Free that city hall’s “hands are tied.”
“That all falls completely under the MDEQ,” the city said in a statement. “So they really should be delivering their petition signatures to Lansing.”
But while Lansing and Duggan failed to act, GLELC by that point had laid the groundwork for its citizen lawsuit. It filed its intent to sue notice in January 2019, and in March 2019 — 58 days later — DRE announced it would close. It was simply too expensive to fix the facility and ensure it would be in compliance with the law.
Today, the facility is owned by Detroit Thermal, which continues to generate steam for the Detroit district using natural gas it purchases from DTE Energy to power its turbines.
Still, city officials, including Duggan tried to take credit for the closure. In the days after DRE announced its decision, officials who spoke with reporters patted themselves on the back, and Duggan has continued to falsely claim that he took on a “leading” role in shutting down the incinerator. Meanwhile, The Detroit Free Press took credit for GLELC’s findings from its 10-year investigation into emissions records.
While such claims could be viewed as erasure of activist’s work, Leonard took a diplomatic view. He praised the Duggan administration for committing not to use the site as an incinerator after DRE left.
“That’s sort of how these things work, right? Every leader passes the buck, and says ‘We can’t do much about this’ … then after the decision is made they come out and grasp for credit,” Leonard said. “If [Duggan] wants to come out and make a strong commitment after the facility is closed, I think that’s great. That’s important.
“At the end of the day, we got the results that we wanted, and that’s what matters most to us.”
This story is the second in a series about how activists and attorneys are turning to the courts, getting involved in the permit process and raising public awareness to protect the environment and residents in time when regulators and politicians are abdicating that responsibility.
The next story will highlight legal battles playing out over the state’s ongoing environmental injustices.
Read all stories in the series here:
Story # 1: Michigan’s weakened environmental laws lead activists to embrace other tactics
Story # 3: Solving Detroit’s most intractable environmental justice issues
Correction 12/18/20: In a prior version of this story, we misspelled the name of Darryl Eley Jordan. We regret the error.