New legislation to improve environmental justice could block permits for polluters in parts of Michigan where heavy industry is concentrated, such as the east side of Detroit or the city’s 48217 ZIP code.

In July, State Rep. Abraham Aiyash (D-Hamtramck) introduced HB 5901, the Protecting Overburdened Communities Act, to prevent companies from obtaining permits for new facilities or facility expansions in overburdened communities.

“In Michigan law, there’s really no way to prevent the construction of a new facility or a permit…for an expansion for any type of pollutant, as long as you’re not releasing beyond the maximum threshold,” Aiyash told Planet Detroit.

The legislation addresses a principal complaint among environmental justice advocates. They say that permitting, which often examines facilities on a case-by-case basis, fails to account for the cumulative impacts from different pollution sources and health disparities in heavily polluted areas, issues that often impact low-income areas and communities of color.

Currently, an air pollution permit could be denied if it would increase the level of one of six pollutants covered by the National Ambient Air Quality Standards, and the area is already out of compliance for that pollutant. However, Michigan regulators generally do not otherwise consider cumulative impacts. 

Nick Leonard, executive director for the Great Lakes Environmental Law Center, said Aiyash’s bill would correct this oversight and “ingrain equity concepts into the permitting system.” However, it would not address existing permits for the many polluters already operating in overburdened communities.

GLELC worked with other Clear the Air Coalition members, including the Michigan Environmental Justice Coalition and the Ecology Center, to review cumulative impact laws in states like New Jersey and Minnesota and develop the legislation with Aiyash.

Leonard said these states’ laws function similarly to Aiyash’s proposed bill, which would identify communities in need of protection, lay out the requirements for environmental justice analyses, and create a standard for assessing when a permit should proceed. 

Bill could require environmental justice impact assessment

Aiyash’s bill would create a framework for addressing inequities in the permitting process and incorporating more public involvement. Still, he and Leonard acknowledge that it may do little to rein in existing polluters.

The bill would require an “environmental justice impact assessment” for new permits. Leonard said this would likely incorporate the state’s MiEJScreen tool, which looks at demographic and environmental data to identify communities at risk of being overburdened by pollution. 

Michigan’s Department of Environment, Great Lakes and Energy would then be required to deny a new permit unless the agency finds its approval would not be discriminatory, placing the burden of proof on the agency and polluter.

The legislation would apply to new water quality, air, hazardous waste, solid waste and wetlands permits. It would also apply to the renewal of air quality permits and hazardous waste licenses. 

In Michigan, major air pollution sources like Marathon’s Detroit Refinery and Stellantis’ Mack Assembly Plant must apply for permit renewals every five years. Hazardous waste facilities are required to renew their licenses every ten years.

Leonard noted that the inability to address existing permits is a weakness in the legislation that could allow many facilities to continue polluting in overburdened communities.

“We don’t generally see a ton of permits for entirely new facilities,” Leonard said. “We see a lot of either renewal permits for existing facilities or, most commonly, permits to modify.”

‘Permits to modify’ includes expansions for existing facilities, a category that is addressed by this law and would require an environmental justice impact assessment.

One example of such a permit was Stellantis’ expansion on the east side of Detroit. This permit allowed the company to increase pollution in a predominantly Black area with high asthma rates in a region that was out of attainment for ozone pollution at the time. The Protecting Overburdened Communities Act could prevent this expansion if regulators determine such a permit is discriminatory.

Aiyash also touted the bill’s requirement for public hearings rather than public comment periods for permits in overburdened communities. EGLE would be obligated to consider comments from these hearings when making its permitting decisions.

Residents and elected officials have previously said EGLE’s public comment process did little to inform decision-making.

“My residents live with the impacts of these decisions,” U.S. Rep. Rashida Tlaib (D-Detroit) said at a press conference in March. “They should be able to help to make them, not brought in to vent their concerns after a decision is as good as made.”

However, Leonard said industry opposition could make Aiyash’s bill challenging to pass. The bill was introduced with only one co-sponsor, Rep. Veronica Paiz (D-Harper Woods).  

“The hope is we’re going to get a hearing done and move the conversation forward,” Aiyash said.