Appeals Court Overturns Ban on Major Air Permits in Genessee County

The Michigan Court of Appeals has temporarily lifted an order that prohibited the Michigan Department of Environmental Quality (MDEQ) Air Quality Division (AQD) from issuing permits to install for new major air pollution sources in Genessee County until MDEQ revised its air permit procedures, pending the outcome of MDEQ's appeal of the trial court's ruling. On October 2, 1997, the Court of Appeals stayed an injunction issued by the Genessee County Circuit Court that prohibited AQD from issuing any major source permits until it had revised the permit process. The stay is effective until the Court of Appeals rules on the MDEQ's appeal. The granting of the stay means that AQD can resume issuing permits to install to major air pollution sources in Genessee County that qualify for permits under the existing rules and procedures.

The injunctive orders affected by this action of the court of appeals were issued by the Genessee County Circuit Court on July28, 1997. The orders arose from the trial court's earlier ruling that MDEQ's air permit approval procedures violate Michigan's constitution and the state air pollution law, Part 55 of the Natural Resources and Environmental Protection Act (NREPA), by failing to protect adequately the public health and by failing to provide adequate opportunities for public input to the permit issuance process.

On May 29, 1997, the trial court orally instructed MDEQ not to issue installation permits for major pollution sources until MDEQ revised, and the court approved, new permit review procedures. The ruling was issued in a suit brought by the Flint chapter of the National Association for the Advancement of Colored People and Flint residents, against the State of Michigan, the Genessee Power Station, located in Genessee Township, and others that alleged that a heavily populated minority community located south of the Genessee Power Station would be adversely affected by the air emissions from the facility. (See lead article in Volume 8, No. 3, June 1997). The plaintiffs argued, therefore, that MDEQ should not have issued an air emission permit to the Genessee Power Station. All claims against all parties, except an Elliott-Larsen Civil Rights Act claim against the State of Michigan, were dismissed. A trial on the civil rights claim was held in April, 1997. Although the court rejected the civil rights claims brought against the state, Judge Hayman ruled that the air permit procedures violate the state constitution and Part 55.

The State of Michigan appealed the trial court's ruling to the Court of Appeals and, in a motion supported by several private parties, requested a stay of the trial court's injunction pending the outcome of the appeal. At the same time that the Court of Appeals granted the State's motion for a stay, the court granted the State's motion for expedited review of the appeal. A hearing on the State's motion to reverse the trial court's decision was scheduled for October 21, 1997.

NAACP v. Engler, No. 205264 (Mich. Ct. App. October 2, 1997).

This article was prepared by S. Lee Johnson, a partner in our Environmental Department, and previously appeared in the October 1997 edition of Michigan Environmental Compliance, a monthly newsletter written by Honigman Miller Schwartz and Cohn on environmental regulatory developments in Michigan and published by M. Lee Smith Publishers. To subscribe, contact the publisher by either phone at 1-800-274-6675; email at [email protected]; the internet at; or by mail at M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094.