When CMS Energy chose to build their Genesee Power Station near the economically depressed city of Flint, Michigan, they expected little opposition. Environmentalists had applauded CMS Energy for designing the plant to run on wood waste — demolition debris, construction waste, etc. – instead of on virgin coal or oil. Secondly, Flint, which had lost thousands of auto-industry jobs in recent years, was in desperate need of additional economic opportunities.
But another heavy, industrial facility was not the opportunity residents of this predominantly, African-American neighborhood wanted. The area already harbored a cement-making plant, an asphalt plant, and a fuel storage facility. To local residents, the power station was proof that state officials had targeted their homes as an air-pollution dumping ground. It was proof of environmental racism.
The residents’ protests led to two legal actions. The first was a petition to review the issuance of the Prevention of Significant Deterioration (PSD) permit. On that petition, the EPA Environmental Appeals Board held that community opposition to a PSD permit could not be taken into consideration at all, as long as the permit applicant met the Clean Air Act requirements. See 9 St. John’s J. of Legal Comment. 599, 604 (1994). Obviously, this ruling placed the Agency’s environmental justice initiatives in grave peril, and the EPA Office of General Counsel made a motion for clarification. The Board granted the motion and withdrew their earlier opinion. See In the Matter of Genesee Power Station Ltd. Partnership, 1993 EPA App. LEXIS 23 (EPA Envtl. App. Bd. 1993). The Board still dismissed the petitioners’ environmental justice claims, however, holding that they had failed to prove discriminatory intent. See id.
The loss at the federal level led Flint-area activists to turn to Michigan state courts. The Flint chapter of the NAACP led that challenge, asking the state to grant an injunction. The NAACP won, with the court ruling that procedural due process required the state Department of Environmental Quality (DEQ) to notify and listen to area residents. See 13 J. Envtl. L. & Litig. 37 (1998).
Of course, this ruling does not mean that CMS Energy will not open its Genesee plant. It only means that CMS Energy and DEQ have to go back to Flint, listen to residents, and decide if they are willing to absorb the political fallout of switching on the Genesee Power Station.
What makes this case study compelling is that the power company seems to have done everything right. They have obtained all the proper permits, and they have survived numerous EPA petitions. They even recycle. But, by focusing only on the big players – the EPA, the Michigan DEQ – CMS Energy ignored the little people, and stumbled into one of the country’s most important, environmental justice cases.
The law review articles are the best places to begin
this case study, as they quickly summarize the background and core issues.
The Environmental Appeals Board decision is the next place to turn. It
does an excellent job of elaborating on the legal issues. The July 18,
1996 EPA memorandum is also helpful, giving the reader an understanding
of the urgency that environmental justice supporters in the Agency felt
after the first Genesee decision.