Flint Residents Demand Federal Action After Michigan Court Upholds Permit for Asphalt Plant

Environmental justice advocates in Flint, Michigan called for federal action after a circuit court on Tuesday upheld a state permit allowing for a toxic asphalt plant to be built and operated on the outskirts of the beleaguered city despite sustained opposition from residents.

The Michigan Department of Environment, Great Lakes, and Energy (EGLE) gave Ajax Materials Corporation permission to construct a new hot-mix asphalt manufacturing facility in Genesee Township—less than 1,600 feet from public housing in a low-income, predominantly Black neighborhood of Flint—in November 2021, just days after a federal judge approved a $626 million settlement for thousands of lead poisoning victims in the city.

Multiple lawsuits were filed challenging the permit. Ajax claimed that EGLE's requirements were too restrictive while the city of Flint argued that regulators' decision-making reflected a failure to adhere to legal requirements associated with environmental justice. In addition, five community groups—St. Francis Prayer Center, Flint Rising, Environmental Transformation Movement of Flint, Michigan United, and CAUTION—accused EGLE of using incomplete emissions data to evaluate the proposed asphalt plant's health consequences in violation of the federal Clean Air Act and Michigan's air quality rules.

As Earthjustice explained in a Wednesday statement, "The court ultimately sided with EGLE, which argued that the issued permit—amended only after public outcry forced the agency to extend its deadline for public comments three times—was sufficient."

In response, Mona Munroe-Younis, executive director of the Environmental Transformation Movement of Flint, said: "We are heartbroken by the court's decision not to protect a wonderful and vulnerable community from yet more air contaminants. But it's a relief that the plant will be forced to operate under stricter pollution controls than what Ajax sought and what EGLE would have permitted, had residents not pushed back."

St. Francis Prayer Center director Debra Hawley echoed Munroe-Younis.

"Community members had to drag EGLE kicking and screaming to issue a stricter permit for this toxic asphalt plant," said Hawley. "I'm proud that we succeeded in securing better monitoring and enforcement of this plant's emissions. This case shows just how crucial it is for the public to have a voice in environmental permitting, especially given the history of environmental racism in Michigan."

Flint, where the poverty rate exceeds 35%, has been hit particularly hard by environmental injustices that are inseparable from deregulation and austerity. Nearly a decade ago, a contaminated water crisis began when an unelected "emergency manager" appointed by then-Michigan Gov. Rick Snyder (R) made the cost-cutting decision to switch the city's tap water source from Detroit's municipal supply to the Flint River, whose highly corrosive water caused aging pipes to leak lead into thousands of homes.

"The fact that EGLE has acknowledged environmental justice concerns with this asphalt plant and decided to go ahead and permit it anyway reflects a much larger problem."

Now, with a stamp of approval from Michigan's regulators and 7th Judicial Circuit Court, Ajax is on the verge of bringing another highly polluting facility to a community that is already overwhelmed by particulate matter stemming from the Genesee Power Station, Universal Coating Inc., Ace-Saginaw Paving Company, Buckeye Terminals, Superior Metals, RJ Industrial Recycling, and other nearby entities.

This concentration of industrial activity has left inhabitants with high rates of cancer, asthma, and other respiratory illnesses, prompting them to demand an assessment of the cumulative impacts of the projected emissions from the proposed asphalt plant along with the pollution emanating from other toxic facilities in the area.

"EGLE has the power to go much further to protect communities of color who are disproportionately impacted by dirty air and water, and they consistently choose not to," said Nayyirah Shariff, director of Flint Rising. "That pattern smacks of racism, and it needs to change."

In addition to challenging the permit in court, the community groups have filed separate Title VI civil rights complaints with the U.S. Environmental Protection Agency and the U.S. Department of Housing and Urban Development, requesting an investigation into EGLE's alleged racism in this permitting process and a comprehensive review of the agency's compliance with civil rights laws more broadly. The groups are represented by Earthjustice, Great Lakes Environmental Law Center, and the National Housing Law Project.

"By filing these civil rights complaints, we hope to secure stronger protections for communities of color surrounding the Ajax plant, and throughout Michigan," said Nick Leonard, executive director of the Great Lakes Environmental Law Center.

As Earthjustice associate attorney John Petoskey put it: "The fact that EGLE has acknowledged environmental justice concerns with this asphalt plant and decided to go ahead and permit it anyway reflects a much larger problem. This case shows how the state permitting process fails to protect communities, and that's why federal action is needed.”

In Tuesday's decision, Judge David Newblatt pointed to the need for site-specific analyses in future permitting. This means that regulators would be expected to consider the multiple ways in which communities are already exposed to harmful pollutants—and the cumulative effects of those exposures—when issuing permits for new facilities.

In response, Rev. Monica Villarreal, an environmental justice organizer at Michigan United, said that "polluting industries should be on notice: Your choice to locate that new facility in an environmental justice community will mean a much higher barrier to get a permit, and those of us who live nearby will not stop fighting for our right to live and breathe clean air."