Michigan’s environmental regs have seen decades of rollbacks under Republican leadership. With control of the governor’s seat and the Michigan Legislature, Democrats are in a position to reverse that in 2023. Will they?
Environmental lawyer Nick Leonard says the Stellantis plant on the east side of Detroit is a good example of how Michigan officials have failed to protect residents from environmental threats, especially in low-income areas and communities of color that already deal with high levels of pollution.
“That community has one of the highest asthma rates in the state,” Leonard, executive director of the Great Lakes Environmental Law Center, told Planet Detroit. “That wasn’t taken into account when [Michigan’s Department of Environment, Great Lakes, and Energy] made the decision to issue that permit. I think everybody would acknowledge a very significant gap in our current regulatory scheme regarding air permits, and it’s time we closed that gap.”
GLELC and residents filed a complaint with the Environmental Protection Agency in Nov. 2021, alleging EGLE had violated Title VI of the 1964 Civil Rights Act when it issued the permit for Stellantis. Flint residents filed a similar complaint when EGLE approved an air quality permit for an asphalt plant near an already polluted, majority Black and Latinx part of the city. When EGLE issued the Ajax permit, Director Liesl Clark wrote to the U.S. Environmental Protection Agency, saying the agency lacked sufficient state and federal authority to block it.
But Leonard argues that EGLE has the sufficient regulatory power to set stricter emissions standards to protect public health and consider cumulative impacts from pollution when issuing permits. It’s political will that they lack.
“It’s easiest for EGLE to put it off on the EPA, and, basically, ask the EPA to force them to do something,” he said, because, otherwise, any legal or political blowback would fall on EGLE.
But since Democrats will control the governorship and state legislature next year, some environmental advocates say it’s time to go on the offense. This will be the first time since 1983 that Democrats have control of the governor’s office and both houses of the legislature. That could empower them to push for changes at EGLE, provide better funding for the agency, and pass laws that offer greater protections like a new polluter pay law, a statewide environmental justice plan, or larger fees and fines for industry. These moves would follow decades of budget cuts and environmental rollbacks that they say limited the state’s ability to respond to emergencies like the Flint water crisis or widespread industrial contamination.
And the environment could be a winning issue for Democrats. Polling shows most Michiganders support acting on environmental priorities like protecting the Great Lakes, which even 71% of Republicans and Independents expressed support for in a 2021 poll. The roadblock will likely come from businesses and industry, some of which make substantial campaign donations and may threaten to use stricter regulations as a justification for taking their operations elsewhere, as Stellantis did when it announced an electric vehicle battery plant would be built in Indiana.
What can EGLE do?
In Detroit’s highly polluted 48217 zip code, Theresa Landrum, an environmental activist and member of the Michigan Advisory Committee on Environmental Justice, is fed up with what she sees as EGLE’s inability to bring meaningful accountability to polluters. Although Landrum and others offered qualified praise when the state reached a settlement with Marathon Petroleum Co. for air quality violations that included $540,000 in fines and community benefits, she still saw the action as woefully inadequate.
“We were taking it as a win because we’re getting very little,” she said. Noting the delayed action in Benton Harbor, where it took a petition to the EPA to get the state to promise to remove lead service lines after the city’s drinking water crisis had entered its third year, Landrum said there should be more of a focus on “emergency action,” responding to threats quickly to minimize damage to individuals and ecosystems.
Increasing funding for monitoring and enforcement could be crucial for bringing quicker action on things like air pollution and drinking water contamination. For example, before the Flint water crisis, a 2010 federal audit found that spending cuts for MDEQ’s Drinking Water Program had a “significant impact” on the agency’s ability to perform monitoring. (EGLE was formerly known as the Michigan Department of Environmental Quality.)
Nick Schroeck, an environmental law expert at the University of Detroit Mercy, said hiring investigators and inspectors is a high priority that EGLE could potentially pay for by raising permitting fees or fines. He suggested that EGLE may be able to do this with its current powers, and, if not, the legislature could give it the legal mandate to raise fees.
Environmental experts also say EGLE could deny more permits when they would harm public health. EGLE reported that in 2021 it approved 97% of the 25,039 permit applications it received, denying only .4%, while the remainder of applications were withdrawn.
“That process is broken,” Schroeck said, adding that the near-universal approval of permits leads residents to feel like the community meetings hosted by EGLE and public comment periods for permit applications are essentially meaningless. He said that litigation is often necessary to get EGLE to change a permit, which benefits businesses with the money to hire lawyers, while residents often do not.
“I don’t think it’s impossible for EGLE to deny a permit that would threaten the health or quality of life of nearby residents like the Ajax example,” he said. “I just think that EGLE has been unwilling to go out on a limb.”
Leonard believes that EGLE has the power under Rule 901 and Rule 228 to establish air quality standards that are more protective than existing baselines and, in some cases, deny permits.
These rules could even allow EGLE to consider cumulative impacts from various sources, at least with air pollution, something Leonard says the agency is also required to do under the EPA’s nondiscrimination regulations. But since “rules” are standards adopted by agencies themselves under larger laws like the Clean Air Act, codifying some of these with specific laws would give EGLE a firmer footing to use them in permitting.
Getting EGLE to consider cumulative impacts either with new laws or by using existing powers would also fulfill a major goal of the environmental justice movement, which has criticized existing air quality rules that allow polluters to concentrate in low-income areas and communities of color. This system often allows businesses to pollute in overburdened areas so long as they each individually stay within permitted limits.
Hugh McDiarmid, a spokesperson for EGLE, declined to comment on rules 901 and 228 because they are currently part of the civil rights complaints concerning the Ajax and Stellantis permits. However, he told Planet Detroit by email that raising fees and fines might be difficult without legislative action. “Virtually all of our fees are established by the legislature and would take legislative action to change (or, in many cases, renew, as many have sunsets),” he said.
Are new laws needed?
Michelle Martinez, director of the University of Michigan’s Tishman Center for Social Justice and the Environment, says environmental impact assessments have shown that Detroiters are suffering disproportionate impacts from what she called “a toxic soup of chemicals” from oil refineries, auto plants, coal-fired power plants and other industries.
“There is no question whatsoever right now that pollution is a problem in Detroit and that our regulatory arm at EGLE can actually do something about it,” Martinez said. “What the legislature needs to do is to codify that in law to require that these impact assessments are utilized and that we monitor and set out pollution reduction goals.”
Creating laws that reinforce the agency’s ability to reduce pollution in frontline communities could include passing a statewide environmental justice law similar to New Jersey Senator Corey Booker’s proposed environmental justice bill. Among other measures, this bill would require regulators to look at cumulative impacts in permitting decisions and allow communities to seek damages for environmental harms like the Flint water crisis.
Schroeck said a Michigan plan could provide better notice to communities affected by environmental problems and allow for greater resident input, changes that could head off problems like Benton Harbor’s drinking water crisis.
State lawmakers could also reinstate a polluter-pay law to help deter pollution and fund cleanups by requiring polluters to clean up contamination to a high standard, similar to the law that existed in the early 1990s before Gov. John Engler began a campaign of environmental rollbacks. And there are indications that this could be a priority next year, with incoming Speaker of the House Joe Tate (D-Detroit) expressing support for a polluter pay law in a post-election interview. While it may not do much to clean up the legacy pollution on the state’s 24,000 contaminated sites because of the many companies that are defunct or properties where ownership history is unclear, it could help address problems going forward.
Yet, any move to pass a polluter pay law or codify the use of cumulative impacts in permitting is likely to attract intense pushback from industry. Mike Alaimo, director of environmental and energy affairs for the Michigan Chamber of Commerce, told Planet Detroit by email that EGLE’s permitting standards were already “based on extremely conservative exposure assumptions to practically take into account cumulative impacts.”
He said that the push for a new polluter pay law was an attempt to undo Part 201 of the Natural Resources and Environment Act’s “causation and risk-based standards…replacing them with a strict-liability law that does not allow for risk-based remedies.” Alaimo said Part 201 enabled the redevelopment of brownfields in Detroit and Grand Rapids, and stricter liability laws could stifle these projects.
However, Schroeck said that if the original polluter was the one bearing the cost of cleanup, this could instead spur redevelopment by saving the public and future purchasers money that would otherwise be spent on remediation..
‘Time for the Pendulum to Swing Back’
Alaimo’s statements illustrate the competing pressures that Democratic legislators will face from business and environmental groups. But with disasters like Flint and Benton Harbor still fresh in people’s minds, Schroeck said, “it’s time for the pendulum to swing back,” and strengthen environmental protections that have been systematically degraded over the last three decades.
There is also some progress for environmental advocates to build on. Michigan Attorney General Dana Nessel has pushed for renewable energy and sued to shut down Enbridge’s Line 5 pipeline in the Straits of Mackinac. Schroeck says that EGLE has focused more on its regulatory responsibilities over the last four years, marking a change from previous administrations that cut the budget for environmental enforcement and allowed Marathon to expand its facilities in southwest Detroit. And Gov. Gretchen Whitmer may have signaled an openness to reform by replacing EGLE Director Liesl Clark, who oversaw the department during the Benton Harbor crisis and when the controversial permits were issued for Ajax and Stellantis.
The politics of the moment may also support regulatory reform, allowing lawmakers to eliminate things like the so-called “polluter panels” that were put in place during the Snyder administration to give industry representatives input on environmental rulemaking. Following 2018’s redistricting ballot initiative, the number of competitive races in the state has increased. This could pose a problem if Democrats are seen to move too fast with reforms, but it also creates an opportunity to act on popular environmental issues.
“When the system works well, you’ve got a strong professional regulatory body, that’s there to be a check on industry. And we haven’t had that for a long time,” Schroeck said. He drew a direct line from the state’s move to reduce environmental protections to recent disasters like Tribar Manufacturing polluting the Huron River with PFAS and hexavalent chromium. Without a polluter pay law, the company continues to contaminate the river, forcing Ann Arbor to spend $150,000 a year treating its drinking water to filter out the company’s PFAS.
“That’s why we’re seeing these things happen,” he said. “It’s not just some magic reason why you keep having major spills and discharges.”