Flint, MI—A court upheld an air permit for an asphalt plant bordering Flint’s north side this week, despite years of protest from local environmental justice advocates.
Judge David Newblatt of the 7th Circuit Court upheld the permit, issued by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) to Ajax Materials Corporation for a hot mix asphalt plant, on June 20, 2023.
Oral arguments in the case were presented in April, with Ajax arguing the permit was too restrictive; the City of Flint and environmental groups arguing its approval should be reversed and revisited; and EGLE arguing that the agency met its mandate and granted Ajax a permit with the appropriate level of restrictions. The court ultimately sided with EGLE this week.
Ajax proposed the asphalt plant, which is located directly across Flint’s border in Genesee Township, in December 2020. By the summer of 2021, it had garnered criticism from a nearby prayer center, local Flint organizers and residents prior to EGLE’s permit approval on Nov. 15, 2021.
At the time, community groups called building the plant an act of “environmental racism,” citing the location’s proximity to a predominantly Black, low-income neighborhood within the City of Flint and reports showing adverse health effects and lowered property values near such facilities.
In his opinion, Newblatt cited a host of law limiting what he could rule on in the case, noting that he was “aware the permit is controversial” but the court’s role “is a narrow one.”
“It is not to decide whether issuing the permit was right or wrong. It is not the role of the Court to determine proper policy as to the regulatory burden affecting businesses. Nor is the Court authorized to judge whether the decision was environmentally just or fair to Flint and its residents in the moral sense. Rather, in this appeal, the Court is only to determine whether EGLE’s decision was authorized by law.”
Excerpt from Judge David Newblatt’s opinion in appeal of Ajax Material Corporation’s permit case, emphasis Newblatt’s own
In response to Newblatt’s ruling, 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.”
Monroe-Younis’ organization was one of several community groups appealing the plant’s permit, which also include St. Francis Prayer Center, Flint Rising, Michigan United and C.A.U.T.I.O.N.
In addition to challenging the permit, the groups have also filed separate Title VI civil rights complaints with the Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD), alleging racism by local agencies in the plant’s location.
The groups are represented by Earthjustice, Great Lakes Environmental Law Center and the National Housing Law Project, some of whose representatives noted that Newblatt’s ruling highlighted the need for the national-level cases.
“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,” said John Petoskey, associate attorney at Earthjustice. “This case shows how the state permitting process fails to protect communities, and that’s why federal action is needed.”
Timna Axel, public affairs and communications strategist for Earthjustice, told Flint Beat their clients are “considering all options, including appealing this decision.”
Axel also said that the hoped-for outcome, whether through the pending Title VI cases or appealing the ruling of this one, is Flint residents’ “access to clean air” and “specific reforms to overhaul EGLE’s entire statewide air permitting program, which is discriminatory.”
Ajax’s attorney did not respond to Flint Beat’s request for comment by press time, nor did the communications director for the City of Flint.
“EGLE is pleased with the decision affirming the agency properly followed all applicable laws in considering and issuing this permit – including the site-specific protections the company challenged as being too restrictive,” EGLE communications manager Hugh McDiarmid Jr. shared in an emailed statement on the ruling. “EGLE recognizes the area’s history, challenges and the health burdens that exist in Flint and will continue to require compliance with environmental laws and enforce permit conditions protective of the community.”