Michigan in Forefront of Fight over EPA Rules: 'Environmental Racism' Debate Rages On

    FLINT -- Rising from the bleak tableau of a nearly empty industrial park, the Genesee Power Station hardly looks like a symbol of old-time racism.

    But to Environmental Protection Agency Administrator Carol Browner, it might be exactly that -- a textbook example of why government intervention is needed to decide if pollution harms minorities trapped in industry's midst.

    Concerns that poor urban communities suffer more environmental damage than wealthier suburbs have been kicking around for a generation. But the Clinton administration in February fused those fears with the Civil Rights Act of 1964 to give new muscle to Browner's EPA.

    Now as environmental regulators fan out on cases from Flint to Dearborn, from Louisiana to Los Angeles, the crusade dubbed "environmental justice" is sparking a firestorm of jeers and cheers from Republicans and Democrats, blacks and whites alike.

    To supporters, environmental justice is a long-overdue remedy for inner-city health concerns. "The last thing we want is for industry to close up," says Adnan Hammad, health director of the Arab Community Center for Economic and Social Services in Dearborn. "But we're against dying slowly."

    To opponents, it is junk science based on inconclusive toxicology evidence, fuzzy legal concepts and misdirected emotion.

Hot issue for Michigan

    The controversial policy has widespread implications for Michigan and other Rust Belt states, and a bipartisan collection of urban mayors and Capitol Hill lawmakers are bracing for its impact.

    The full force is already being felt at CMS Energy's Genesee Power Station with an EPA environmental justice investigation that could result in orders ranging from shutting the plant to a broader demand on all nearby industries to lower the area's pollution.

    Decades before the CMS Energy Corp. facility went up in 1994, this corner of Flint absorbed toxic levels of lead due to various industrial activities in the area. The aging homes nearby are covered with peeling lead paint.

    The power plant threatened to add to the poisonous mix, if only because some of the scrap wood fuel it burns to produce electricity might carry traces of lead paint.

    That alone made Genesee Power Station subject to the EPA's new environmental justice reviews designed to force local governments and businesses to determine whether minorities were unfairly exposed to higher levels of pollution than whites.

    Metro Detroit could become a hotbed of such disputes with its large minority population and massive smoke-stack industries, which are primarily clustered in poorer communities. The issue has already come up between Arab residents and Ford Motor Co. over a new paint shop in the Dearborn assembly plant.

    Trouble is, neither the EPA nor anyone else knows whether to group the affected people by zip codes, census tracts or an arbitrarily drawn radius, most experts agree. Similarly, the government and lawyers on both sides of the issue aren't sure how to compare the environmental conditions of communities to see if minorities in the north Flint neighborhood are unfairly targeted.

    "There are so many troubling aspects, we're not sure how to tell what the 'community' is around any of our facilities, let alone how the EPA or a judge will rule," says Rodger Kirshner, general counsel for CMS Energy.

    The EPA has more than 20 cases under review, some dating back to September 1993. Not one of those cases accepted for further EPA review has been closed, despite internal agency plans to close five cases before new regulations came out in February.

    The EPA's goals are supported by a large coalition of civil rights and environmental groups ranging from the NAACP Legal Defense Fund and Greenpeace to national religious groups such as the Catholic church and the United Church of Christ.

Local governments at odds

    At the local level, where environmental justice's impact may drive employers away or put off plans for new urban factories, there is more division. Several Louisiana branches of the NAACP support a company's stand against pollution complaints because they don't want a new plant driven away from a poor community. But in Michigan, local NAACP branches have sided with the cause of environmental justice.

    "Too often I see kids playing on garbage, breathing in foul air," says Donelle Wilkins, who heads a group called Detroiters Working for Environmental Justice with offices near Chrysler Corp.'s Jefferson North assembly plant.

    "People should have a different vision where the city can be a place with clean air and water, grass, trees, flowers and even dads working."

    In general, though, the uncertainty at the heart of the EPA's environmental justice plans has stirred up enormous opposition -- often among the very people the rule was designed to protect.

    Browner told The Detroit News in a recent interview that those fears are completely unfounded. But last Monday, Detroit Mayor Dennis Archer led the primarily Democratic U.S. Conference of Mayors to ask the EPA to scrap its interim environmental justice actions, so the mayors can help refocus the issue.

    The mayors joined groups such as the National Association of Black County Officials (NABCO) and Republican mayors such as Richard Riordin of Los Angeles who also strongly oppose the policy. Their concern: The EPA will strip local governments of power over how their cities will grow and even stifle growth in the most economically depressed areas.

    In a letter to the EPA, Wayne County Commissioner and NABCO President Edna Bell called the EPA's proposals "punitive to local governments" and further argued the policy would "not facilitate the continued growth of community-level participation in environmental protection."

    Ford executives, for example, say environmental justice won't affect many of their plants because they're in communities where the civil rights implications of pollution aren't an issue.

    But one top executive notes that the potential for added costs, delays and lawsuits implicit in the environmental justice cause means "there will be no more assembly plants built in the inner cities."

    Even EPA staffers who worked on designing the policy and argue the issue of pollution in inner cities is important say the policy as currently designed can only fail.

Beginning of EPA activism

    The history of the EPA's environmental justice push goes back nearly 20 years to a battle over a solid waste landfill in Houston. Activists from a black neighborhood on the north side of the city argued that minority neighborhoods were deliberately selected for landfills since poor communities might offer less resistance.

    The racial and environmental activists lost at first, but kept up a steady stream of high-profile battles and influential studies. The issue eventually burst on the national scene when President Clinton signed a 1994 order requiring agencies of the federal government to take issues of race, ethnicity and income into account in how they run their programs. It was that order that created the EPA's new regulations.

    Back in Flint, the Genesee Power Station was among the first cases to get caught up in the EPA's attempt to meld civil rights and environmental laws.
    While the plant is fully operational today, it still faces uncertainty of the continuing EPA investigation.

    To black plant manager Rubert Ward, the insinuation that he or his facility are environmental hazards or, worse yet, racist, is preposterous.

    "I lived in the neighborhood," he asserts. "I was affected by the plant."

    The neighborhood is a jumble. Along Dort Highway to the west of the Genesee Township plant is a desolate string of rotting businesses. Signs that look as if they were smashed a decade ago hang over a rusting corrugated fence hiding a million abandoned tires. To the south of the plant, almost a mile away, is Carpenter Road, a local school and a mostly minority working-class neighborhood.

    To EPA environmental justice advocates, this tangle of housing, industry and commercial property reflects not the natural evolution of an industrial city, but a form of institutionalized racism.

    And here, as it has in more than a dozen other communities around the country, the agency has struggled to apply the same weapons that smashed Jim Crow to questions about whether minorities pay more of the costs of industrial development than do whites.

    Despite spending millions of dollars, and thousands of hours of EPA workers time, the agency still has no idea how to deal with its growing backlog of complaints using Title VI of the 1964 Civil Rights Act as the basis for challenging pollution.

A cornerstone case

    A reminder of the EPA's inability to nail down questions at the core of its environmental justice policy came in a June 19 letter concerning a case in rural Louisiana.

    EPA civil rights director Ann Goode wrote in the letter that the government would delay a decision in a Louisiana environmental justice case for the third time this year in order to have a group of outside scientists review the agency's method for analyzing the case.

    That dispute has become a showcase for the EPA and is expected to set precedent for the nation, but now Louisiana environmental officials say the procedure will likely delay a decision until 1999.

    The key issue EPA is grappling with sounds deceptively simple -- who is harmed by the pollution and how do we tell if it is unfair?

    And even then it's not that easy. Many plants release waste that goes into landfills, nearby waterways and into the air, and each of those kinds of pollution affects a different group of people, often in different ways.

    "Maybe it's an impossible task," says J. Clarence Davies, a former EPA official, now director of the Center for Risk Management at Resources for the Future.

    In one of the most influential studies on the subject of environmental racism, the United Church of Christ looked at the zip codes around Superfund sites and found minorities wildly over-represented around the toxic land. The EPA tried to replicate that study looking at census data and found the problem mostly disappeared.

    Indeed, around the Genesee Power Station, the race problem becomes far larger or smaller depending on how the population around the plant is viewed. Internal EPA reports show that at a one-mile radius, blacks are over-represented. At a four-mile radius, most of the disparity disappears.

Complex burden of proof

    But the complications don't stop there. To decide if the lead pollution from the Genesee Power Station disproportionately affects blacks, the percentage of blacks around the facility must be compared with whatever the "right" number of minority residents should be.

    "But picking the 'right' comparison can often guarantee the outcome," says Davies. For instance, the nation is about 12 percent African American; Michigan is 16 percent, and Genesee County is 20 percent. If you compare the affected population around the Genesee Power Station with the county as a whole, there is no problem. If you compare the percentage of blacks around the plant with the national average, suddenly blacks appear to be disproportionately represented.

    These problems didn't originate with Browner or the Clinton administration.

    Bush administration EPA officials, who struggled with enviromental justice for three years, say they ran into the same issues.

    "The confusion over how to define terms key to understanding environmental justice has plagued the endeavor since 'environmental justice' first became an issue in the late 1970s and early 1980s," says Christopher H. Foreman, a researcher at the centrist Brookings Institution who has studied the issue for the past several years.

    And as the EPA has tried to write rules outlining the way concerns about race should be melded into the environmental permitting process, the agency has not been shy about admitting the pitfalls.

    The EPA regional office in Chicago that covers Michigan is particularly blunt in its "guidance" intended to show how it will deal with environmental justice questions: "There is currently no proven methodology for conducting a direct, scientific assessment of disproportionately high and adverse human health or environmental effects."

    So, ask the state regulators who are supposed to implement this undefined plan, what are we supposed to do?

    And the answer is they don't know. Russ Harding, head of Michigan's Department of Environmental Quality, says his agency has almost none of the expertise that it will take to implement the rules.

    "We have no demographers, no social scientists at all," he says. "For us to do the kind of analysis it appears the EPA is requiring, we may have to hire 100 more people and I don't know where that money could come from except out of other programs like enforcement."

    EPA's Browner says there were good reasons that those definitions weren't firmed up sooner.

    "You couldn't know on the front end (what you'd need the scientists to look at) until our people said here's how we're going to apply it in a different way than perhaps it was applied previously," she says.

    Browner argues that addressing the issue will require a lot of resources until the EPA, state regulators and businesses gain more experience.

    "This is a new and developing area of the law and we're trying very hard to be responsive to communities and to business," says EPA counsel Gary Guzy.

    "Admittedly, that's taking a very long time."

    Business advocates say time is exactly what they don't have.

    "Four clients have brought this up to me in the last month," says Joseph Polito, a Detroit environmental lawyer with a number of auto industry clients.

    "Even if all it does is throw one more hurdle in the way of development, it will have a significant impact."

Copyright 1998 The Detroit News, Inc.
The Detroit News
June 28, 1998, Sunday
SECTION: Front; Pg. Pg. A1
BYLINE: By David Mastio / Detroit News Washington Bureau