Genesee County Court Holds Air Permit Process Is Unlawful, Halting Permit Issuance in County

Genesee County Circuit Court Judge Archie Hayman ruled on May 29, that Michigan's air permit procedures violate the state constitution, and instructed the Michigan Department of Environmental Quality (MDEQ) not to issue installation permits for major pollution sources until MDEQ revises, and Judge Hayman approves, the new permit review procedures. Judge Hayman's oral ruling was unclear as to whether the injunction against issuing new air permits would apply state-wide, or only in Genesee County. As a result, MDEQ initially stopped issuing permits state-wide on May 30, 1997, but later resumed issuing permits to facilities outside Genesee County after press reports quoted Judge Hayman as stating that the written injunction would be limited to Genesee County.

The Genesee Power Station (Power Station) applied for a permit to install a 35 megawatt steam electric generation plant using waste wood as its primary fuel. The Power Station is located in an industrial park in a sparsely populated area of Genesee Township, and may emit up to two tons of lead per year. A heavily populated minority neighborhood in Flint is located south of the facility and the Plaintiffs, including the Flint chapter of the National Association for the Advancement of Colored People and residents of the nearby minority neighborhood, brought suit against the State of Michigan, the Power Station and others alleging that the nearby minority community would be adversely impacted by the emissions from the facility.

The Plaintiffs initially alleged several causes of action against the Defendants, but all charges against all Defendants were eventually dropped or dismissed except one claim against the State of Michigan alleging that the issuance of an air permit for the Power Station, and the resulting adverse impact on the neighboring minority community, violated Michigan's Elliott-Larsen Civil Rights Act. The Plaintiffs requested the court to order MDEQ to establish new permit issuance procedures that would take into account whether a proposed facility would disproportionately affect minority communities. Because all claims against the Power Station itself had been dropped, the Plaintiffs no longer sought to block operation of the Power Station. A two-week trial on this issue was held in Genesee County Circuit Court. Although Judge Hayman agreed with the Plaintiffs that the lead emissions from the Genesee Power Station adversely affected the neighboring minority population, he rejected the Plaintiffs' claim that the MDEQ policies violate the Elliott-Larsen Civil Rights Act. "The Plaintiffs have failed to show that [MDEQ's] policy of not considering race in granting permits to polluting facilities caused African-Americans to be located near major polluting facilities ...." Therefore, Judge Hayman dismissed the Plaintiffs' civil rights claim. Consideration of such factors, according to Judge Hayman, is required under the Michigan Constitution and Section 5511 of the Natural Resources and Environmental Protection Act (NREPA).

Judge Hayman held, however, that MDEQ's failure to consider the cumulative effect of the emissions from the Power Station and the existing environmental risks to which the community is exposed violates Article IV, Section 51 of the Michigan Constitution, which provides that the legislature shall pass laws necessary to protect public health, and Section5511 of NREPA, which authorizes MDEQ to refuse to issue an air permit to a facility that would pose an imminent and substantial endangerment to public health and the environment. Judge Hayman found that the MDEQ did not take into account the several different avenues of exposure to toxic chemicals, especially lead, that were already present in the Flint community when the permit was issued. In particular, Judge Hayman noted that MDEQ did not consider residents' exposure to lead through background lead levels in the soil, soil contamination, and lead paint in older homes. Judge Hayman also ruled that MDEQ's public participation procedures, which in this case included multiple public hearings and public comment periods, were inadequate. In this case, the Power Station is located in Genesee Township and had received zoning approval from Genesee Township. But the judge agreed with the Plaintiffs that the emissions from the Power Station would adversely affect residents of Flint who live near the Power Station. "In these situations the state must have in place a procedure that gives adjoining communities a fair opportunity to be notified and heard concerning the siting of pollution facilities near their borders that pollute their communities." said Judge Hayman.

Judge Hayman directed MDEQ not to issue permits for major pollution sources until the agency has prepared, and the judge has approved, new procedures that will require a comprehensive risk assessment, at the expense of the permit applicant. The new procedures must also provide "meaningful" opportunities for the public to participate in the permit approval process, especially when communities adjacent to the permit applicant's facility may be adversely affected by the permit. Although Judge Hayman did not specify what procedures would be required to provide a meaningful opportunity for public participation, the judge suggested that such procedures might include the opportunity to be heard before a board of neutral arbiters. The court stated that MDEQ must prepare the new procedures within 180 days and the Plaintiffs will then have 90 days to review and comment on them. A March 6, 1998 hearing date has been scheduled by the judge to finalize the procedures.

MDEQ has asked the Michigan Attorney General to file an "immediate and aggressive" appeal of Judge Hayman's decision.

This article was written by S.Lee Johnson, an associate in our Environmental Law Department, and previously appeared in the June 1997 edition of Michigan Environmental Compliance Update, our monthly newsletter published by M. Lee Smith Publishers.