By Tom Perkins for Planet Detroit.
Broadcast version by Mark Richardson for Michigan News Connection with support from the Solutions Journalism Network

During the early 1970s, Michigan enacted a bold set of environmental laws that helped form an unprecedented check on the nation's industrial heartland. The state's water and air quality standards went beyond the minimum set by federal law, and it became a leader in managing natural resources and protecting wetlands.

But it wouldn't last long.

The 1990 election of Gov. John Engler ushered in a new era of deregulation, and, for the next several decades, governors and a largely GOP-controlled Legislature shredded environmental protections while defunding and gutting the state's regulatory agencies.

The sustained assault hobbled regulators, who are now often unwilling or unable to hold polluters accountable, and the results are in - Flint's water is poisoned, dangerous air pollution chokes Detroit, and PFAS-contaminated water is killing residents, among other environmental crises.

But now Michigan's polluters face a new kind of check. A loose coalition of environmental attorneys and activists are increasingly confronting industry with a multi-pronged approach - suing to force companies to follow the law, stepping in during the permitting process and waging campaigns to raise awareness of corporate misdeeds.

They're de facto regulators, and their strategy is undeniably effective. They've forced the closure of the toxic incinerator near Midtown, tripped up Nestle as it attempted to seize the state's water, pushed utilities like DTE Energy toward clean energy and taken on industrial polluters in and around southwest Detroit.

These groups see themselves as a last line of defense when there isn't the "political will or appetite to protect the environment," said Nick Schroek, director of the University of Detroit Mercy's environmental law clinic.

"Going forward, we'll likely see more litigation from public interest groups, and that's partly because of a failure of our government, both state and federal, to evolve and add additional environmental protections that were needed in the face of changing circumstances," he said.

The rise has been accompanied by a new focus on environmental justice issues in low income communities that bear the brunt of industries' wrongdoing and political indifference. A new generation of activists from Detroit and other cities has risen, increasingly working with long-established environmental groups (many of whom are new to environmental justice issues) to pressure policymakers.

In recent years, they mounted what is essentially a vigorous public relations campaign that outed Marathon as a local corporate villain. While activists have fought the incinerator since its planning stages, an uptick in public pressure in recent years was critical in forcing its closure, said Nick Leonard, director of the Great Lakes Environmental Law Center.

In the absence of meaningful government oversight, activists are "doing the accountability work for the regulatory system," said Michelle Martinez, acting executive director of the Michigan Environmental Justice Coalition.

"They're the scientists, they're the regulators, they're the checks and balances of a broken system," she said. "They're taking on a David and Goliath fight in almost every single case, whether it's Marathon Oil, or FCA or the Detroit incinerator - you have fights against multibillion dollar fossil fuel corporations that have the lockdown on the political system."

But while citizen and public-interest lawsuits provide the public with a valuable weapon in battles with polluters, ultimately the war can only be won with a robust regulatory apparatus. Last-line-of-defense legal cases brought by residents "are not going to get us where we need to be," on encompassing issues like climate change, Schroeck said.

"We're sort of nipping around the edges of really, really complicated complex issues ... and there needs to be systematic statewide and nationwide efforts, rather than piecemeal litigation," he added. "To solve issues like chemical contamination across the state, there needs to be a uniform approach."

'A hurdle to economic growth'

The deep cuts to the Michigan Department of Environmental Quality in the 20 years that preceded the Flint Water crisis clearly illustrates how defunding regulators can spark environmental disasters that take and destroy lives.

During the early 1990's, Engler weakened the DEQ (now EGLE) by taking a more direct oversight of the agency and enacting deep budget and staff cuts. Gov. Jennifer Granholm next slashed the budget by nearly $100 million, and a 2010 EPA audit of the DEQ found that $300,000 in cuts to the Drinking Water Program had a "significant impact" on the agency's ability to monitor water.

Gov. Rick Snyder's administration pushed an extreme "business-first" philosophy in the DEQ that was summed up by Dan Wyant, the agency's first director, in a 2010 Crain's interview: "It's true we'd like to have more resources, but it's important that we get the economy back on track first. The DEQ can be a part of that by not being a hurdle to economic growth."

By the time the Flint water crisis started poisoning residents, the agency's staff and funding had been cut by around 20% since 2001. The attack on regulators here mirrored that playing out nationally as conservatives began to argue that "environmental protection was something that was somehow at odds with a healthy economy," Schroeck said. But he noted that history repeatedly shows how this approach leads to environmental disasters, like Flint.

"We saw the crippling of our environmental regulators and it was really impossible for them to do their job," Schroek said. "The way these laws are supposed to be designed is that we have a government regulator that's there to protect the public's health, and to be a counterweight to the very powerful corporate interests."

Even if the regulatory agencies were enforcing laws during recent decades, a series of Republican attorney generals largely were uninterested in prosecuting polluters, though that's changed since Dana Nessel's 2018 election. Soon after taking office, Nessel challenged Enbridge's dangerous Line 5 plans and later filed a first-of-its-kind suit against PFAS manufacturers.

Meanwhile, the state's GOP-controlled Legislature in recent years passed "polluter panel" bills that gave industry the power to override new environmental rules. The same group was behind the 2018 lame duck assault on the environment in which it eliminated protections for a vast swath of the state's wetlands, loosened regulations around toxic fracking waste, approved the controversial Line 5 plans, and more.

In 2017, as Flint residents continued suffering and living without clean water, GOP legislative leadership sent an astonishing letter to Snyder that called for less environmental oversight.

"While we can appreciate the role of the DEQ, we see a pattern of unreasonable overreach when it comes to implementation and enforcement of laws and regulations that is alarming, and it seems that this concern has become more evident over the last couple of years," it read.

Courts as a last resort

With the state failing to protect the environment, public-interest attorneys can turn to the courts.

They typically use one of several tools.They can file a citizen suit in federal court under the Clean Air or Clean Water acts and ask a judge to order polluters to get in compliance with federal law. That's the approach attorneys have taken with the incinerator, US Steel and other air polluters around Southwest Detroit.

Alternatively, they can sue in Michigan Circuit Court under the Michigan Environmental Protection Act of 1970, and ask a judge to declare a polluter a public nuisance. That approach is less common because plaintiffs can't recoup legal costs.

Another legal remedy is intervening in DTE Energy and other utilities' rate cases. A range of activists have successfully pressured regulators to force companies to limit rate increases and close coal plants, among other wins.

Meanwhile, activists are paying closer attention to the permitting process and making sure residents' voices are heard

One example this year was eastside residents living near the FCA plant who pressured EGLE to require FCA to install pollution controls as the factory expanded. Although EGLE ultimately ignored residents' demands, Gregg Newsom, a Detroit People's Platform organizer, highlighted it as an example of the community making regulators hear more than just the industry's voice.

'It's a life and death situation'

Until recent years, Southwest Detroit's Marathon Oil refinery polluted with near-carte blanche, spewing carcinogens while pumping out hundreds of tons of greenhouse gases annually, plaguing residential neighbors with respiratory disease and other ailments. The coke dust it piled on the Detroit River's shores blew across the region, dusting neighboring properties with the toxic substance.

But Marathon no longer operates with impunity. A coalition of neighborhood residents-turned-environmental activists have partnered with EJ groups and attorneys to confront the threat and hold Marathon to account.

Over the last four years, they forced Detroit policymakers to take a stand against Marathon and require it to cover loose piles of toxic coke dust piled on the Detroit River's banks. A year later, state regulators forced the company to install air filtration systems in a nearby school and provide real time air quality data.

Though litigation is ongoing, the wins are a sign of a shifting tide, and Martinez called it "a testament to the power of organizing" that's increasingly common in communities of color facing an outsize burden of pollution and climate change. During the last 10-15 years, the ranks of activists in these communities has swelled.

"When I came back to Detroit 12 years ago ... I could count with my right hand how many environmental justice activists there were in the city. In 2020? There are dozens of climate justice, environmental justice groups, organizations, hundreds, if not thousands, of people who are well informed, skilled and ready to make change."

Community involvement is critical, said Darryl Eley Jordan, senior organizer with the East Michigan Environmental Action Council (EMEAC), because residents drum up support in their own impacted neighborhoods in a way that outside groups, like lawyers, journalists and the established advocacy groups often can't.

Jordan highlighted EMEAC's outreach in neighborhoods around the incinerator, which helped locate residents who suffered from its toxic emissions.

"It takes people in the community to help others understand these issues in a language that they understand - that's how we build some power and keep politicians in line and responsive to our needs," Jordan said.

Meanwhile, established environmental groups are increasingly working with residents in impacted communities to determine priorities. Sierra Club attorney Elena Saxonhouse noted that the group now takes a "bottom up" approach in deciding which issues to tackle.

"[We] listen to what the communities we're working in want and go from there - it's not all top down. You can't just tell people 'you should care about coal plants,'" she said.

Martinez welcomes the new commitment of organizations like the Sierra Club to valuing the voices of the residents living these battles in their daily lives.

"The writing is on the wall, and it has perhaps not hit middle and upper- income white America in the same way," Martinez said. "The commitment to justice and to a cleaner, healthier environment belongs to those who breathe toxic air every day, because it's a life and death situation. It's not just a hobby or a pet interest."

Chemical plants in West Virginia and other states will be required to curb emissions of toxic, cancer causing pollutants - such as ethylene oxide, chloroprene and other chemicals - under a new Environmental Protection Agency rule.

Hundreds of facilities, most located near low-income or communities of color, will also have to collect air pollution data and submit it to the EPA.

The data will also be made available to communities, which Jeremy Symons - a senior advisor with the Environmental Protection Network - said is an important tool for transparency and environmental justice.

"Not only will this action by EPA reduce these dangerous toxic air pollutants by 96%," said Symons, "but they're also going to require chemical plants to install fenceline air-pollution monitors."

Research has shown that long-term exposure to ethylene oxide and chloroprene can increase the risk of certain types of cancer, such as lymphoma, leukemia, breast cancer and liver cancer.

Children are particularly at risk.

The Biden administration says the rule will slash more than 6,200 tons of toxic air pollution each year in affected regions.

Symons, a former EPA advisor, said the rules come after years of work by local community members and environmental organizations that have sounded the alarm on the impact of deadly air pollution.

"There's been especially high cancer rates in these communities," said Symons. "So it's really significant that EPA has taken action and gone into the communities that have not been protected as much as they should be in the past."

A handful of companies in West Virginia - including Chemours, Koppers and Altivia - will have to comply with the new rules.

Investigative reporting published in 2021 by Mountain State Spotlight and ProPublica have revealed how toxic chemical pollution has harmed the state's majority Black communities.

People working for environmental justice are rallying today at the downtown Pittsburgh headquarters of U.S. Steel, voicing their concerns to company shareholders about creating a healthier future in the Monongahela Valley region.

Japan's Nippon Steel is buying U.S. Steel for more than $14 billion.

Duquesne Mayor Nickole Nesby, an environmental-justice organizer with the group 412Justice, said the asthma rate in the Mon Valley is four to five times higher than the national average. She pointed out they're being left out of important conversations about the sale and are urging better health protections.

"We are actually gathering to demand a seat at the table," she said. "We -- the communities which have been impacted by the pollutants for decades -- have not had a seat at the table. Our voice needs to be heard."

U.S. Steel has had a presence in the Mon Valley since 1901 and currently employs more than 3,000 workers. Nesby said the sale isn't supposed to affect local employment, as U.S. Steel has said it will keep the contract as it currently exists.

U.S. Steel's Mon Valley Works, which includes the Clairton Coke Works, is the biggest coke plant in the country.

NaTisha Washington, communications manager for the Breathe Project, said the plants have a long history of breaking air-quality rules and facing complaints. She added that the plants keep getting fined for exceeding pollution limits - and even have trouble getting new permits.

"There is no transparency with the communities about these air quality days being bad," she said. "No protections, no resources like air filters, or anything that's supporting residents that are affected by these bad-air days."

Washington added that money is being put into a clean-air fund and a Community Benefit Trust. But there has been no visible improvement to community health so far. She noted many Mon Valley residents are feeling the impacts of either poor air or water quality.

Environmental organizations in Virginia have united in opposition to Gov. Glenn Youngkin's picks for the state Environmental Justice Council.

In the last two years, the council has been short several members, unable to reach a quorum or conduct official votes. But critics point out that most of the new appointees have strong ties to the fossil-fuel industries that cause environmental harm.

Tim Cywinski, communications director for the Sierra Club's Virginia chapter, said there's no upside to the new appointments.

"People who are tied to the fossil-fuel industry are not going to be helpful in initiatives that are meant to reduce pollution and improve public health, to make sure that people aren't affected by toxic air from polluting projects, toxic water from polluting projects," he said.

The groups also have said new appointees don't meet certain background requirements to be on the council. They've signed a letter asking the General Assembly to reject the appointees. Instead, Cywinski suggested, Youngkin should appoint the people whose terms expired. He noted that their backgrounds are better suited to recognizing the social and environmental challenges facing some communities.

Projects are already underway in areas sensitive to environmental issues. In Petersburg, a methane pipeline extension and compressor station are being proposed despite the concerns listed in an Environmental Impact Statement. Petersburg already ranks as the "least healthy" place in Virginia.

Cywinski said it's distressing Youngkin hasn't taken up policies protecting these areas.

"I wish we didn't have to have environmental-justice projects," he said. "I wish there was more humanity in the development and planning of energy plants or power plants, or infrastructure projects - but there are not."

Pipeline projects can cause damage to surrounding forests, which means losing valuable water and air filtration. In addition, methane leaks are already common. Based on current environmental impacts, Petersburg residents have a lifespan about a decade lower than the national average.