Activists combine education, pressure, and the law to clean up communities and achieve environmental justice. Here’s a look at the tactics behind some of their wins and ongoing struggles.
In July, Michigan regulators approved a nearly ten-fold expansion of a US Ecology hazardous waste storage facility in a largely low income neighborhood with a high number of immigrants near the Detroit-Hamtramck border.
When residents objected, EGLE said it was required by law to approve the project. In response, the Great Lakes Environmental Law Center took a new legal approach to confronting an environmental injustice in the area: it filed a civil rights complaint under Title 6 of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin for programs receiving federal assistance.
The pending case illustrates how environmental attorneys and activists are using a wide range of laws, intervening in the permitting process and employing creative legal strategies to push back in a region with a deep history of environmental racism.
“You cannot come at environmental justice just from environmental law,” attorney Oday Salim said at a recent symposium at the University of Detroit’s Environmental Law Clinic. “You have to come at these environmental injustices from various other frameworks.”
Few regions in the nation face more environmental issues and injustices than southeast Michigan, which has paid for its industrial power with polluted water, contaminated soil, dirty air and myriad crises.
Though Michigan’s environmental laws were once among the nation’s most stringent, a decades-long GOP assault on regulatory agencies has weakened state oversight, leaving the region’s environmental attorneys and activists to confront polluters in court.
They make use of tools like citizen suits that can be filed under the federal Clean Air Act and Clean Water Act. In many cases, Michigan law goes further than federal law with lower limits on some air and water pollutants. But they are also looking to other areas of the law–like property law and civil rights law — to achieve their ends. Meanwhile activists on the ground run public awareness campaigns designed to pressure policymakers into action and turn public sentiment against polluters.
Though the struggles are constant, combinations of these approaches have led to important wins in recent years. To get a sense of how activists and attorneys are using the law to protect Detroiters and shine a light on corporate malfeasance, Planet Detroit looked at the legal fights and activism around some of the state’s greatest ongoing environmental threats and injustices.
Another win against Marathon
Arguably, few of Detroit’s industrial villains have been the source of more problems for neighboring residents than Southwest Detroit’s Marathon refinery. Residents have long complained about the sulfur dioxide and particulate matter it spews, which is a source of asthma and other lung problems.
Though regulators and the company have claimed the refinery has reduced its emissions, it has continued to violate standards, most infamously in 2019 when a “vapor release event” sent two employees to the hospital and sickened neighbors. Protests before and after the event pressured EGLE into issuing a fine — which some residents called insufficient — and requiring Marathon to make real time air quality data available to neighbors. The company also paid for an air filtration system to be installed in a neighboring school.
Meanwhile, in 2012 Marathon started storing piles of toxic pet coke, a black, sand-like byproduct of the oil refining process, on the shores of the Detroit River. The substance coated properties in surrounding neighborhoods when the wind blew. So the city, responding to residents and activists’ demands, passed an ordinance in 2017 that required pet coke to be stored indoors. Marathon then applied for a variance that would allow it to continue storing the substance outdoors. The city rejected that in 2019.
Still, citing its strong desire to avoid spending millions of dollars to build a roof, Marathon appealed the decision in 2020. In October, the city quietly again rejected the proposal. In a letter to the company, the city pointed to environmental justice issues, representing an extra win for activists pushing for officials to take such concerns into account.
Detroit’s building department wrote that the company “neglected to provide the pertinent demographic data for this vulnerable area that has a long history of being impacted by environmental justice issues. Marathon failed to provide any discussion of whether minority or impoverished populations are located in the affected areas or potentially affected areas and in what numbers or percentages.”
Activists take on DTE Energy and the state’s utilities
For decades, Michigan’s utility industry operated with little meaningful oversight from state regulators. The results of the hands off approach are clear: Michigan residents now pay among the nation’s highest rates while receiving some of the worst service in terms of interruptions. Even as DTE Energy and Consumers Energy deliver especially poor service in Detroit, they’ve cut power to hundreds of thousands of customers who can’t afford high rates.
The cost burden also shifted from Michigan’s industrial users to residential users during the Snyder administration, and the state’s utilities have successfully resisted a quick move to clean energy. As a consequence, Michigan’s greenhouse gas emissions remain among the nation’s highest.
But there’s a shift taking place as a core of grassroots groups has coalesced to protect residents’ financial interests and push clean energy policies. Citizens Utility Board of Michigan, Soulardarity, Michigan Environmental Justice Coalition, and more work alongside larger environmental groups like Sierra Club and Natural Resources Defense Council. They regularly intervene in utilities’ rate cases before the Michigan Public Service Commission, the regulatory agency that governs utilities and makes decisions about clean energy and pricing.
The groups are seeing success. In recent years, their pressure and advocacy have resulted in lower rate increases than what utilities have asked for in Detroit and across the state. Programs that protect low-income residents have been expanded, and protections that consumer advocates pushed during the pandemic have resulted in a significant drop in shutoffs.
Meanwhile, DTE was pressured into shuttering three of its coal plants and is now being required to explore how to shut down a fourth one sooner than its 2030 target date. Activist groups continue to promote and look for ways to increase access to clean and distributive energy sources while pushing environmental justice issues that until recently weren’t acknowledged by regulators. In a major victory, the Whitmer administration recently directed the MPSC to factor in environmental justice issues when considering utilities’ energy delivery plans.
Activists have been aided by a shift in the political winds. Attorney General Dana Nessel has been a staunch consumer advocate since taking office in early 2019, and Gov. Gretchen Whitmer’s appointments to the MPSC are more amenable to residents and clean energy policies than past pro-industry commissioners.
Reducing sulfur dioxide emissions in River Rouge, Southwest Detroit and Dearborn
The toxic greenhouse gas sulfur dioxide is a driver of asthma and other respiratory ailments. Those inhaling it can feel in its effects — sneezing, sore throat, wheezing, shortness of breath, and chest tightness — after just five minutes of exposure. The sulfuric acid it creates in bodies effectively leaves “sunburns on your lungs,” said Sierra Club attorney Elena Stackhouse.
Few areas in the nation choke on more of the dangerous gas than that composed of River Rouge, Southwest Detroit and parts of Dearborn. The EPA in 2013 found the region’s levels far exceeded federal air standards and required the Michigan Department of Environmental Quality (now EGLE) to develop a plan to drastically cut SO2 levels by 2016.
Unsurprisingly, former Gov. Rick Snyder’s DEQ turned in a weak plan that largely only required US Steel, a major SO2 emitter, to cut its emissions, Stackhouse said. A state judge recently ruled that the EGLE doesn’t have the authority to require only US Steel to cut its emissions without also requiring the same of the other polluters, so the plan fell apart. While the state’s failure should trigger a new plan from the EPA, the agency failed to develop one by its 2018 deadline, Stackhouse said. Meanwhile, the SO2 pollution continues unabated, though it has unintentionally been reduced by the winding down of operations at DTE Energy’s River Rouge coal plant and idling steel mills.
Groups like the Center for Biological Diversity and the Sierra Club have since 2013 continued pressuring the agencies by submitting comments throughout the process, and they’re preparing to ask president-elect Joe Biden’s EPA to quickly develop and submit a plan. It would likely develop a better plan than a Trump-run EPA, though that and installation of new pollution controls could still take several years.
Ending the Detroit Grand Prix’s Belle Isle ‘occupation’
To the race’s opponents, the ongoing “occupation” of Belle Isle is a clear outrage — each summer, the state allows a billionaire to convert a substantial section of the 982-acre island park into his personal IndyCar race track. Though the state park is a rare urban respite, publicly owned and supposed to remain accessible to the public, Roger Penske, the trucking and race mogul behind the Grand Prix, limits access for most of the spring and part of the summer to some of the island’s best areas on the Southwest part of the island, which includes Sunset Point and offers beautiful views of downtown Detroit.
That has provoked strong opposition, and for several years activists with Belle Isle Concern have demanded the race be moved off the island. They’ve succeeded in drawing unfavorable media attention to the injustice and turning some public opinion against the race, but that hasn’t been enough to dislodge Penske. While there was hope that Gov. Gretchen Whitmer’s administration might shift course, her Department of Natural Resources has been worse than Snyder’s — it’s allowing Penske to add a second race to the 2021 schedule.
With the DNR working for a billionaire’s interest over the public’s, Paul Andrew Kettunen, an environmental attorney, has raised the idea of a legal challenge to the Grand Prix takeover of Belle Isle. The Michigan Environmental Protection Act’s public trust doctrine may require the state to care for and provide public access to its natural resources, like state parks. One could argue that the DNR has failed in those responsibilities, as it allows Penske to restrict access to the island, and has breached the state’s public trust doctrine.
Similar lawsuits have had success in New York and Illinois, Kettunen noted, though the public trust doctrine hasn’t been applied in such a way in Michigan, and it faces a more difficult path in the state’s relatively conservative court system. For now, the group Belle Isle Concern is continuing to make noise, paint Penske as a villain and make political inroads.
Ending Detroit water shut offs
Perhaps no issue illustrates the power of grassroots activism and political pressure better than the response to Detroit’s water shut off policy. The city in 2014 launched the dangerous debt collection initiative and began shutting off water to those far behind on their bills, pushing a narrative that those in poverty who were unable to afford the city’s high water rates were simply lazy or unwilling to pay their fair share.
Since then, 140,000 households have had their water service cut, and an analysis of 2018 shut offs found 95% of those accounts were Black customers. The city-made water crisis has raised fears of an increase in illnesses and other social problems associated with a lack of access to clean water.
The injustice spurred into action groups like We The People Detroit, Hydrate Detroit and the Detroit Water Brigade. The groups have raised awareness of the suffering that the policy has caused, put sustained pressure on policymakers, and assisted residents who have had their water turned off. As a result, the program has remained a flashpoint in the media since it was implemented. In July, the Michigan ACLU and NAACP filed a lawsuit against Detroit and DWSD that asked for a judge to order an end to the shutoffs. That case is pending.
The policy created an especially alarming situation during the pandemic. Health concerns prompted Whitmer to issue a moratorium that ended in July when the GOP-controlled Michigan Supreme Court struck down her emergency order powers. Simultaneously, the Duggan administration announced a $25 reconnection program, and, allegedly, over 1,200 homes have had water restored. Meanwhile, State Sen. Stephanie Chang in 2019 introduced legislation that would require utilities to turn water service back on across the state. A version of it to extend a moratorium on statewide shut-offs passed in the Michigan Legislature during lame duck and was signed by Whitmer.
The pressure at all levels seems to have paid off. The Duggan administration in December announced that it would extend the moratorium through the end of 2021 and “build a coalition” to make it permanent. It’s not clear how the city would pay for it — officials have said an income-based water affordability plan, in which rates are subsidized, is fiscally untenable in Detroit. And activists view the announcement with deep skepticism. There will undoubtedly be significant pressure to ensure the moratorium continues beyond next year.
This story is the third and alst 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: