Environmental Justice Case Study: An Incinerator in Flint,
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(Map obtained from http://maps.epa.gov/enviromapper)
Currently, a large wood fired power plant is operating in an economically
depressed community outside Flint, Michigan. This facility incinerates wood waste to
generate electricity for sale to the Consumer Power Company. However, this facility, the
Genesee Power Station Limited Partnership, also generates pollution. This pollution is
released through the incinerator’s smokestack into a community that was already polluted
before the facility was constructed, indeed before the plan for the facility was
contemplated. The incinerator is located in Dort/Carpenter Industrial Park, which is
home to three hazardous waste facilities regulated by the Environmental Protection
Agency (EPA), two facilities that emit toxic air pollution, and three facilities that deal
with multiple forms of toxic waste, one of which is a petroleum tank farm
(http://www.epa.gov). In addition, the community is predominantly comprised of people
of color, and of people with low incomes.
Any situation where a group of people must endure more than their share of
negative environmental consequences constitutes an environmental injustice. Regarding
environmental justice, the EPA holds that, “no group of people, including racial, ethnic,
or socioeconomic group should bear a disproportionate share of the negative
environmental consequences resulting from industrial, municipal, and commercial
operations or the execution of federal, state, local, and tribal programs and policies”
(Lowe 2). The people that live around the Genesee Power Station incinerator are
subject to a disproportionate amount of pollution, making this situation a clear example
of an environmental injustice. Further, the Michigan Department of Environmental
Quality did not address several key issues regarding the community when it approved the
incinerator’s air pollution permit in 1992.
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The Genesee Power Station Limited Partnership incinerator has been a problem
for the surrounding community since 1992. On December 2, 1992, the Michigan
Department of Environmental Quality (MDEQ) approved the permit for the facility. The
permit approved the construction of the $80 million incinerator, which was the first in the
state to use demolition wood for fuel. The plant produces 35 megawatts of electricity for
sale to Consumer Power Company, which then sells the energy to residents. The plant
produces enough electricity for 35,000 homes in Flint and the surrounding Genesee
Township. Flint is the largest city in Genesee Township and is comprised of 51.1%
people of color (United for Action 1994).
The industrial park that the incinerator occupies is in an economically depressed
minority and low-income community. The park is located on the north side of Carpenter
Road in a primarily residential area. An elementary school is located directly to the West
of the industrial park, and there are 14 more schools within a three-mile radius from the
incinerator (United for Action 1994). This means that children on recess outside their
school are subject to harmful air emissions.
The incinerator generates electricity by burning wood waste, which then heats a
boiler that generates the energy. Some of the wood waste fuel comes from the demolition
of buildings and other structures, and is called demolition wood waste. This demolition
wood is sometimes coated with lead-based paint, and other lead-based substances that
were used in the construction of the demolished buildings. When this demolition wood
coated in lead is burned, lead is released into the air and the surrounding community
through the incinerator’s single smokestack (United for Action 1994).
Lead is not the only substance the incinerator releases. It is regulated by the
Environmental Protection Agency to release carbon monoxide, nitrogen dioxide,
inorganic compounds, sulfur dioxide, and particulate matter (http://oaspub.epa.gov). Of
all the emissions, lead is the most harmful to the surrounding community. The Agency
for Toxic Substances and Disease Registry says that lead is most harmful to young
children, and unborn children. If a pregnant woman is exposed to lead it can be carried to
the unborn child and cause premature birth, low birth weight, or even abortion. Young
children are at risk because they swallow lead when they put toys or other objects soiled
with lead containing dirt in their mouths. For infants and young children, lead has been
proved to cause decreased intelligence test scores, slowed growth, and hearing problems.
Exposure to high levels of lead can cause kidney and brain damage in adults, increased
blood pressure, and can damage the male reproductive system (www.astr.cdc.gov).
The incinerator uses several measures to try to prevent the emission of lead into
the atmosphere. Some wood waste is cleaned before being burned to remove the toxic
lead substances. Also, the facility uses a multiclone and electrostatic precipitator to trap
lead emissions before they are released through the smokestack (United for Action 4). In
fact, a 1998 press release from the MDEQ states that, “The permit authorized by DEQ is
very protective of the local population.” And that, “lead emissions from the facility
impacting the surrounding neighborhood will be 100 times less than the national
standards for lead emissions” (MDEQ 1).
However, the Michigan Department of Environmental Quality did not address
some key issues regarding lead emissions before issuing the permit for the incinerator in
1992. The MDEQ never prepared an environmental impact statement before issuing the
permit, nor did they attempt to ascertain the amount of lead already present in the
community. Also, MDEQ did not determine if people in the community were already
suffering from exposure to lead, and did not study the potential changes in the amounts of
lead exposure that the incinerator could cause in the community (United for Action 6).
The potential impact on the community was never determined, nor was it even studied.
In addition, the requirements set by MDEQ for preventing lead-coated wood
waste from burning in the incinerator are lacking. Genesee Power Station was required
to submit a wood waste procurement and monitoring plan to the MDEQ, which would be
used to prevent burning of unacceptable materials. However, the only element of the
plan specified by the MDEQ was the requirement that all wood waste be visually
inspected before being burned. This visual inspection requirement is not enough to
eliminate lead coated wood from the incinerator’s fuel supply. In addition, the permit
states that Genesee Power station should use “extensive processing procedures” (United
for Action 1994) on the wood waste to help decrease the amount of lead burned in the
These procedures were not defined by the MDEQ or by Genesee Power Station
prior to the facility’s construction. The permit issued in 1992 stated that the procedures
were to be outlined in the wood waste procurement and monitoring plan, which would be
submitted sometime before the facility began operation (United for Action 8). This made
the possibility of implementing more stringent regulations on the facility very unlikely
due to the difficulty of changing technology that would have already been in place. This
placed the community surrounding the facility in a very limited position. The
community’s needs were not recognized by the MDEQ when they approved the
construction of the incinerator, forcing the community to take action.
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St. Francis Prayer Center and United for Action: These are two community groups
that mobilized to combat the problems presented by the Genesee Power Station
incinerator. These groups are concerned with the well being of their community, and the
quality of their lives. They see the Genesee Power Station incinerator as a threat to their
community’s health, and wish to end its operation. They also believe that the permitting
process that the MDEQ used for Genesee Power Station did not allow for enough
Michigan Department of Environmental Quality: It is the MDEQ’s job to issue
permits for the construction of facilities that emit pollution. The MDEQ’s mission is to
“drive improvements in environmental quality for the protection of public health and
natural resources to benefit current and future generations” (http://www.deq.state.mi.us).
However, the MDEQ must do this “while helping to foster a strong and sustainable
economy” (http://www.deq.state.mi.us). Therefore, the MDEQ is interested in both
economic development, and the quality of the environment. These two interests
frequently come in conflict with one another.
The Guild Law Center: The Guild Law Center (GLC) is a national, non-profit public
interest law center. Their work is focused around pursuing economic justice and
protecting the rights of the economically disenfranchised. The GLC supplied legal
assistance to the community surrounding the Genesee Power Station incinerator.
Attorneys from the GLC handled litigation concerning the incinerator, and were a
valuable resource for the community (http://www.glc.org).
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A demographic analysis of two US Census tracts (data from the 1990 census) that
make up the community around the incinerator yields some interesting results. The data
from the census tracts show that the community is composed of 75.3% minorities and
people of color. A breakdown of all the residents of the community is shown in the table
Race Percent of Total Population
American Indian, Eskimo or Aleut 0.29
Asian or Pacific Islander 0.58
Other Race 0.15
(All census data obtained from http://tier2.census.gov Census tracts 0017 and 0018)
Also, the 1990 census data show that 47.2% of the total population of the
community is below the poverty line (http://tier2.census.gov). These data show that the
community is clearly economically disenfranchised, and predominantly composed of
minorities and people of color.
Comparing these data with demographics from Genesee County as a whole also
yields interesting results. 77.3% of the people living in Genesee County are white, and
only 21.1% are black. Other minorities make up less than 2% of the population
(http://www.tier2.census.gov). This comparison shows that the demographics of the
community surrounding the incinerator are not representative of Genesee County.
Therefore, the people living in this community constitute a distinct racial group and bear
a disproportionate amount of the negative impacts associated with the incinerator when
compared to the benefits (electricity) Genesee County receives as a whole. This fits
within the definition of an environmental injustice.
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After the permit for the Genesee Power Station incinerator was issued in 1992,
nine petitions were filed to the EPA Appeals Board in opposition to the incinerator.
These appeals were submitted by community residents, United for Action, the American
Lung Association of Michigan, and the Genesee County Medical Office (United for
Action 5). These petitions were intended to draw attention to the plan for building the
incinerator, and bring about changes in the permit supplied by the MDEQ. The EPA
Appeals board decided to change the language of the permit, but made no real
improvements. The permit did not hold Genesee Power Station responsible for any
negative impacts the incinerator might have on the community, nor did it “contain any
clear, enforceable limitations on the burning of low quality construction and demolition
wood waste at the facility (United for Action 8).” Clearly, the Appeals Board failed to
solve the problem for the community around the incinerator.
No other legal action was taken against the incinerator until 1995. In the mean
time, the St. Francis Prayer Center and United for Action attempted to gain legal council,
and use the media to draw attention to their problems. The community made numerous
attempts to gain council to open a lawsuit against the MDEQ for approving the permit
that resulted in polluting their homes. Construction began on the facility, and was near
completion in July 1995 when the NAACP and the Guild Law Center filed a lawsuit in an
attempt to shut down the facility and relieve the community (Peters 1999).
The original lawsuit was titled NAACP vs. Engler. The suit claimed that the state
of Michigan’s approval of the permit for Genesee Power Station violated Title VI of the
federal Civil Rights Act, the Michigan Elliott-Larson Act (the state equivalent of Title
VI), the Michigan Environmental Protection Act, and the equal protection clause of the
Michigan constitution (Peters 1999). The original defendants were Genesee Township,
the State of Michigan and its governor, John Engler. Genesee Power Station was not
Title VI of the federal Civil Rights Act gives the federal government leverage
over state governments that receive federal funding. If a state’s actions are found to be
discriminatory, the federal government must withdraw its financing (Lowe 1998). In this
case, the community hoped to prove that the State of Michigan’s approval of the
incinerator’s permit was an act of discrimination because it intentionally placed the
incinerator in a poor, minority community. If the community’s lawyers proved a
discriminatory act occurred, then the State of Michigan would have to shut down the
incinerator because of the threat of the federal government withdrawing funds. It was
also necessary for the plaintiffs to prove an act of discrimination occurred to prove their
claims on the state acts.
In August 1995, the case went to trial at Federal court. The court remanded all
the state law claims to the Genesee Circuit Court, and retained the federal Title VI claim
(Peters1999). In September 1995, the court dismissed the Title VI claim with prejudice.
The plaintiffs were not able to prove that the State of Michigan committed an act of
discrimination, and because the claim was dismissed with prejudice, are unable to bring
that claim to court again. However, the state claims still remained and soon went to trial
In March 1996, Genesee Power Station (GPS) was added to the list of defendants,
and the case was sent to Genesee Circuit Court. The court came to a settlement on the
Equal Protection claim, and both parties agreed to a dismissal of the claim under the
Michigan Environmental Protection Act. The settlement stipulated that the incinerator
would only burn 20% construction and demolition wood as fuel. The settlement also
allowed GPS to request an increase in this percentage if it could show that its lead
emissions would not exceed 20% of the permitted level (Peters 2). This settlement did
not satisfy the plaintiffs. The discriminatory site of the incinerator was not addressed.
Also, the court did not increase the firmness of the regulations on the procedures used to
prevent the burning of lead-coated demolition wood in the incinerator. A second state
trial followed (Lowe 1998).
The only remaining strategy was the plaintiff’s claim that the MDEQ’s policy for
determining sites for incinerators had a disparate impact on minority communities in
violation of the Elliott-Larsen Civil Rights Act. Sadly, the court found that the plaintiffs
failed to prove their claim, and the claim was denied. However, some good did come
from this trial. The court held that the policies and regulations enforced by the State of
Michigan did not go far enough to protect the health, safety, and welfare of its citizens.
On May 29, 1997, the court enjoined the MDEQ from granting permits to major air
polluters until the MDEQ performed a risk assessment, notified the interested parties and
governmental units that would be affected, and gave them an opportunity to be heard
before the Department. These changes in the MDEQ’s policies would be evaluated at
another trial that was to be held one year later. Until this trial, the MDEQ was barred
from giving permits to air polluters in Genesee County (Lowe 1998). This was in direct
response to the MDEQ’s actions regarding Genesee Power Station’s permit.
However, this victory was quite short-lived. In 1998 the State of Michigan
appealed the decision of the trial court to the Michigan Court of Appeals. The Court of
Appeals vacated the injunction, thus successfully overturning the ruling of the trial court.
In regard to the claim under the Elliott-Larson Civil Rights Act, the Court of Appeals said
that, “allegation that the MDEQ failed to consider race in issuing the permit is simply not
a denial of the full and equal enjoyment of the goods, services, privileges, advantages, or
accommodations of a place of public accommodation of public service (Lowe 6).” In
other words, the court decided that the MDEQ did not commit an act of discrimination
when issuing the permit to GPS.
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The community has attempted to solve their problem through almost every legal
avenue possible. The claim under Title VI can never be made in court again, and the
community’s legal council has made all the possible discrimination claims under state
law already. The community has also explored all its options with the EPA and the
MDEQ. The incinerator continues to operate, although it was shut down for a year due to
permit violations (Lowry 2000). This problem is far from being solved.
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According to Alma Lowry (11/30/2000), the environmental justice representative
at the Guild Law Center, the community needs to continue to use the media to gain
publicity for their cause (Lowry). The worst thing that community groups can do is give
up. Groups like the St. Francis Prayer Center and United for Action need to keep putting
pressure on the EPA and other governmental organization even though their efforts have
failed thus far. Some possible activities could be a letter writing campaign, or staging
non-violent public protests.
There is one more legal option that the community may be able to explore in the
future, which is a private citizen suit claiming a violation of Title VI. This approach has
never been attempted before, and the EPA is still deciding if it is acceptable (Lowry
2000). Should the EPA decide that it is, the community should defiantly use this legal
avenue to continue their fight against the incinerator.
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Peters, Marilyn A. “Appeals Court Rejects ‘Environmental Justice’ Claims. Washington
Legal Foundation Legal Opinion Letter. 16 April 1999. http://lexis-nexis.com/universe
The State of Michigan. Department of Environmental Quality. Press Release. 30
November 1998. http://www.deq.state.mi.us/pr/981130.html
United for Action. Letter to Valdas Adamkus, Regional Administrator, EPA Region 5. 6
July 1994. Guild Law Center.
Lowe, Suzanne. “Environmental Justice: An Overview.” October 1998.
Lowry, Alma. Personal Interview. 30 November 2000.
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