The Dormant Power of State Agencies to Fight Environmental Racism

David Handelman-Holmes* March, 2025

Despite repeated promises by Democratic presidents to address environmental justice (EJ), meaningful federal action on the issue remains elusive. The EJ obligations that have been imposed on federal agencies are all purely procedural, not substantive. Such procedural obligations—like filing environmental impact statements and providing forums for community feedback—may facilitate greater transparency and accountability from industry and government agencies. But in the absence of more substantive obligations—like stricter emissions caps in highly burdened communities of color—these procedural requirements are often satisfied through mere box-checking. Meanwhile, litigants pursuing relief through the U.S. Constitution’s Equal Protection Clause face closed courthouse doors unless they can show “discriminatory intent”—a nearly impossible task. And despite Title VI’s promises of anti-discrimination, litigants’ Title VI claims are subject to long delays, industry-friendly settlements, and looming existential threats by a federal judiciary and a new presidential administration increasingly skeptical of—if not even outright hostile to—both environmental remediation and race-conscious policymaking. But with the federal government on the sidelines, there is enormous opportunity at the state level. A recent fight over an asphalt plant outside Flint, Michigan, demonstrates that state environmental agencies may have expansive—though largely untapped—power to address environmental injustice through the permitting process. This Note analyzes state and federal administrative law to provide a case study on how state agencies can fill the massive gap in EJ enforcement and fulfill the unkept promises of past federal administrations.

Introduction

It’s amazing how quickly something is normalized when it’s all you know. Growing up in Flint, Michigan, Nayyirah Shariff assumed every community sent their kids out to play on playground equipment covered in a thick layer of soot, and that the smell of sulfur and deafening jet engine roars of industrial turbines were the typical motifs of American life.¹ They never even thought it strange that their whole family and the majority of their social group had asthma.² “I had childhood asthma, multiple hospitalizations, and I thought that was normal,” Shariff said. “It wasn’t until we ended up moving to an upper-middle-class area that I realized that that wasn’t normal.”³

Shariff’s childhood embodies the lived experience of many residents of Flint and other so-called “sacrifice zones” across the United States, where low-income and predominantly non-white areas bear disproportionate burdens from industries producing pollution and hazardous waste.⁴ Addressing sacrifice zones is among the major objectives⁵ of environmental justice, a social movement dedicated to remedying the harm to marginalized communities caused by industrial activity—especially when those same communities do not reap any of the social or economic benefits of that activity.⁶

In 2014, Flint became synonymous in the popular consciousness with environmental injustice because of the Flint Water Crisis, during which local and state officials exacerbated the public health crisis of lead in the city’s drinking water.⁷ The Flint Water Crisis belonged to a particularly egregious species of public corruption. But there is a more pervasive and persistent challenge facing sacrifice zones like Flint: the continuing concentration of industrial activity spewing contaminants into the air their citizens breathe.⁸ Asthma rates in Genesee County, which is home to Flint, are 16.4% for adults and 14.3% for children⁹—higher than Michigan’s adult rate of 11.5%¹⁰ and over double the national averages of 8% and 6.5% for adults and children respectively.¹¹ The reason why is no mystery: Over the past four decades, the community of Genesee Township—which is 80% white—has voted to site polluting factories in an area that, though remote to most of its own residents, sits on the border of a densely-populated area of Flint, a city that is 56% Black.¹²

Democratic presidential administrations have repeatedly vowed to address this issue.¹³ Yet in the thirty years since Bill Clinton’s landmark 1994 executive order on EJ,¹⁴ meaningful federal action has remained elusive. EJ obligations imposed on federal agencies are purely procedural, not substantive; when undertaking a “major Federal action[] significantly affecting the quality of the human environment,” officials need only take a “hard look” at environmental concerns, including EJ.¹⁵ A relatively permissive standard despite its name, “hard look” review affords significant deference to agency decisions that check the necessary procedural boxes.¹⁶ Meanwhile, litigants pursuing relief through the Fourteenth Amendment’s Equal Protection Clause face closed courthouse doors unless they can show “discriminatory intent”—a nearly impossible task.¹⁷ In theory, Title VI of the Civil Rights Act of 1964 offers a more promising path to relief¹⁸: This provision prohibits discrimination by recipients of federal funds on a showing of “disparate impact”—a much easier standard to meet than “discriminatory intent.”¹⁹ But no agency has ever lost federal funding due to a Title VI EJ claim,²⁰ and 90% of the complaints filed between 1996 and 2013 were either dismissed on the merits or rejected on procedural or technical grounds.²¹

Nevertheless, EJ advocates were cautiously optimistic when President Biden announced a host of new EJ commitments including the much-publicized Justice40 program, which aimed to deliver 40% of federal climate and clean energy project benefits to disadvantaged communities.²² Yet, these commitments to EJ have not translated into greater enforcement under Title VI.²³ Even worse, a federal judge recently barred the Environmental Protection Agency (EPA) from enforcing Title VI’s disparate-impact requirements in Louisiana.²⁴ The court’s permanent injunction sets up a potential Supreme Court challenge before a group of justices already skeptical of both race-conscious decisionmaking²⁵ and environmental challenges²⁶ (to put it mildly). And most recently, President Trump signaled a dramatic rollback of environmental justice enforcement, rescinding E.O. 12898²⁷ and Justice40²⁸ and placing on leave 168 employees at the EPA’s Office of Environmental Justice and External Civil Rights.²⁹

With the federal government on the sidelines, an enormous enforcement gap has emerged—but so too has opportunity for state-level action. A recent fight over an asphalt plant outside Flint³⁰ illustrates the expansive—yet untapped—power many state environmental agencies possess to address environmental injustice through the permitting process. In 2021, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) began review of a permit application by Ajax Materials Corporation to construct a hot mix asphalt plant near Flint’s border.³¹ During the lengthy notice-and-comment period that followed, local and national activists expressed deep opposition to the plant, largely rooted in EJ concerns.³² And although EGLE eventually approved the asphalt plant, it did so with major alterations to the original draft permit, including lower emissions limits and increased testing requirements.³³ Importantly, EGLE attributed these changes to concerns unearthed during the notice-and-comment period.³⁴

Ajax sued, claiming that EGLE had no legal basis for imposing more stringent requirements after considering a community’s EJ concerns.³⁵ But a Genesee County judge disagreed, arguing that while “environmental justice concerns, by themselves, are not recognized by the law as providing justification for substantive regulation . . . they can be a basis of a more robust process which can affect the result.”³⁶ In other words, although Michigan agencies are required only to meet EJ’s procedural requirements, courts may permit them to include EJ as a significant substantive factor (among others) in the permitting process.

How far does this authority stretch? That is an open question. This Note argues that the Flint-Ajax decision, read in conjunction with other federal and state case law, reveals that state agencies possess broad authority to address environmental injustice. This is true even in the absence of explicit grants of EJ authority from state legislators; instead, this authority emanates from the federal Clean Air Act, existing state administrative law, and states’ inherent police power to protect the health and safety of their citizenry.

Part I describes the numerous roadblocks to achieving meaningful EJ enforcement at the federal level, despite Democratic administrations’ stated commitments. Part II shifts the focus to the Flint-Ajax litigation, which put to the test a state agency’s authority to substantively address community EJ concerns. Part III then examines what we can learn from the Flint-Ajax case about the contours and limits of state agency power and where this power is susceptible to legal challenges.

The Origin of Environmental Justice’s Enforcement Gap

On February 11, 1994, President Bill Clinton signed Executive Order 12898 titled “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations.”³⁷ A landmark action, the order directed federal agencies to make “environmental justice part of [their] mission[s] by identifying and addressing . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations . . . .”³⁸ Although the order did not create any new legal rights or causes of action,³⁹ it has had important practical effects. For example, judges have interpreted this new federal focus on EJ as a requirement that agencies consider equity impacts as part of their obligations under the National Environmental Policy Act (NEPA).⁴⁰ And under this mission statement, the EPA began adjudicating claims of discriminatory siting and permitting practices by recipients of federal funds under Title VI of the Civil Rights Act of 1964.⁴¹ If the EPA finds that a state agency receiving funds to administer federal environmental programs has discriminated based on race, color, or national origin, the agency may lose that funding.⁴²

Yet while NEPA has provided overburdened non-white communities with some procedural protections, federal courts have shown enormous deference toward agencies when evaluating these commitments, robbing them of their substantive power.⁴³ Moreover, NEPA applies only to federal actions and therefore offers no protections from state permitting decisions, which are responsible for much of the pollution that impacts EJ communities.⁴⁴ These gaps leave Title VI as the last great remedy available to communities challenging state agencies’ discriminatory permitting practices. But for most of the past three decades, the “EPA has effectively failed to enforce Title VI,” relieving much of the pressure on state permitting agencies.⁴⁵

A. The Failure of Federal Civil Rights Law to Address Environmental Justice

It is reasonable to think the Equal Protection Clause, which bars discrimination in education, housing, and intimate relations, might provide adequate protection against environmental racism. Yet in the 1976 case Washington v. Davis, the Supreme Court read a “discriminatory intent” requirement into the Equal Protection Clause.⁴⁶ This requirement is notoriously difficult for plaintiffs to show in education and housing claims—and arguably even harder to show in the environmental context where decisionmaking is usually spread across time and space among various federal, state, and local actors.⁴⁷

In Bean v. Southwestern Waste Management, the Southern District of Texas applied the Supreme Court’s all-but-fatal “discriminatory intent” factors to allegations of environmental racism.⁴⁸ Houston residents challenged the Texas Department of Health’s decision to grant a permit to a solid waste facility placed 1,700 feet from a predominantly Black high school with no air conditioning.⁴⁹ Just four years earlier, County Commissioners rejected a permit for a solid waste site located in nearly the same location.⁵⁰ What changed? The school’s demographics had shifted from majority-white to majority-Black.⁵¹ Although the Southern District of Texas called the permitting decision “unfortunate and insensitive,” it found that the plaintiffs failed to establish “a substantial likelihood . . . that the decision to grant the permit was motivated by purposeful racial discrimination . . . .”⁵² By effectively requiring a smoking gun, the Supreme Court’s “discriminatory intent” jurisprudence sets out a near-impossible standard for plaintiffs to meet.⁵³

Therein lies the magic of Title VI. Unlike the Equal Protection Clause, Title VI allows the federal government to withhold funds from state agencies by showing mere “disparate impact” on protected groups, regardless of intent.⁵⁴ At the time of its passage, Title VI was a ray of hope cutting through the Court’s increasing skepticism of race-conscious remedies.⁵⁵ Yet a 2015 investigation by the Center for Public Integrity (CPI) revealed that the EPA dismissed or rejected 214 of 265 Title VI complaints filed between 1996 and 2013, whether after an investigation of the merits or on merely procedural or technical grounds.⁵⁶ After striking deals with several implicated agencies, the EPA closed twelve of the remaining fifty-one cases without finding a formal Title VI violation.⁵⁷ CPI also identified thirteen investigations that remained open in 2015, including one filed almost two decades earlier in 1996.⁵⁸ After five complainants sued the EPA over these delays, a federal court found that the delays were unlawful.⁵⁹

This ruling, combined with the election of President Biden, gave activists hope that Title VI would no longer be a dead letter.⁶⁰ Yet despite significant improvements made to the Title VI process under Biden’s EPA, the agreements it has struck with state agencies contain no specific commitments to reduce environmental burdens on non-white and low-income communities.⁶¹ The Biden Administration’s agreement with EGLE to resolve allegations of discrimination in its permitting of the Ajax plant is no different: The agreement holds the agency to commitments around public engagement and grants but does not mandate any substantive changes to its permitting process.⁶² According to CPI, this agreement and others negotiated under Biden “aren’t markedly different, in fact, from those written by the first Trump Administration—which was actively hostile to environmental rules and civil-rights enforcement.”⁶³

Even such modest commitments negotiated under Title VI may soon disappear. In January 2024, a Louisiana federal judge issued a temporary injunction blocking the EPA and the Department of Justice from enforcing Title VI disparate-impact regulations.⁶⁴ The State of Louisiana—home to “Cancer Alley”⁶⁵—sought to apply the more burdensome “discriminatory intent” standard to EPA Title VI claims despite its fatal impact on Equal Protection challenges.⁶⁶ In granting the injunction, the judge heartily embraced the state’s theory that “disparate impact” is a dreamy fiction propagated by regulators run amok and contrary to both Title VI and the Constitution.⁶⁷ Should Louisiana’s theory hold, Title VI claims, like Equal Protection claims, would become virtually impossible for plaintiffs to litigate in the state. Given the Fifth Circuit’s conservative posture⁶⁸ and the Supreme Court’s hostility toward race-conscious government action,⁶⁹ environmental lawyers were not surprised that Biden’s EPA never appealed this ruling, as doing so could have broadened the scope of the injunction beyond Louisiana—or even bring an end to “disparate impact” Title VI claims altogether.⁷⁰ But even absent a broader, permanent ruling on the merits of “disparate impact” regulations, there is a strong likelihood that, under the second Trump administration, Title VI EJ actions will come to a halt.⁷¹

B. What’s Left? Procedure, Not Substance

Without Title VI, federal EJ obligations will likely remain purely procedural, not substantive. There is no overarching federal statute governing state agencies’ EJ obligations, but there are constructive obligations arising under a patchwork of laws, regulations, reports, and executive orders.⁷² For example, NEPA requires federal agencies to complete environmental impact statements for actions “significantly affecting the quality of the human environment.”⁷³ Read in conjunction with E.O. 12282, the U.S. Council on Environmental Quality (CEQ) has interpreted this as a mandate that agencies consider EJ, and specifically the “impacts on the natural or physical environment and related social, cultural, and economic effects” when preparing environmental impact statements.⁷⁴

Yet federal courts have shown agencies enormous deference when evaluating these commitments. Sierra Club v. FERC illustrates this deference: there, activists and landowners challenged the Federal Energy Regulatory Commission’s (FERC) approval of three natural-gas pipelines that, for 83.7% of their total route, would cross through or within a mile of disproportionately low-income and/or non-white census tracts.⁷⁵ Despite this, the D.C. Circuit ruled that FERC had met its procedural requirements and concisely laid out the standard for evaluating federal agencies’ EJ obligations under NEPA: “[A]n agency is not required to select the course of action that best serves environmental justice, only to take a ‘hard look’ at environmental justice issues.”⁷⁶ So long as that process is not carried out in an arbitrary or capricious manner and is otherwise lawful, the agency has fulfilled its obligations.⁷⁷

To give an example: When compiling an environmental impact statement, an agency might conclude that a proposed project would have enormous adverse environmental effects on human health, felt almost exclusively by overburdened non-white and low-income communities—a paradigmatic EJ violation. But under hard look review, the agency itself largely determines what to do with that information. It could impose more stringent testing or emissions obligations on the applicant or even deny the permit altogether. Or, it could do nothing, filing the impact statement away to collect dust in a public records database. Under such a deferential standard of review, courts are reluctant to second-guess that decision.⁷⁸ Thus, the prevailing NEPA jurisprudence renders agency obligations purely procedural—not substantive.⁷⁹

This is not to say that these procedural requirements are meaningless. Federal courts have frequently found that federal agencies fail this deferential “hard look” standard⁸⁰—most famously when the Standing Rock Sioux Tribe sued over the Dakota Access Pipeline.⁸¹ In that case, the D.C. District Court found that the U.S. Army Corps of Engineers did not fulfill its “environmental-justice responsibilities under NEPA.”⁸² Yet while the D.C. Circuit agreed that the EJ review was insufficient, it also reversed the district court’s order to shut the pipeline down,⁸³ further calling into question the power of federal EJ obligations.⁸⁴

In short, communities hoping for meaningful EJ relief from the federal government may need to look elsewhere.

In Flint, a Path Forward Using State Agencies’ Existing Permitting Authority

As Part I illustrates, meaningful federal action on EJ remains elusive despite renewed commitments and enthusiasm from the Biden administration—and there are still greater threats on the horizon.⁸⁵ With the federal government on the sidelines, what can states do? Even absent explicit grants of authority from state legislatures, might state agencies, relying on their broad mandate to protect public health, hold untapped power to pursue environmental justice reform through the permitting process? Better still, might state agencies be uniquely well-suited to address EJ given their expertise, proximity to local conditions, and ability to balance competing policy objectives?

The answers to these questions may lie in a familiar EJ battleground: Flint, Michigan.

A. A Factory Is Built in an Ailing Community

In December 2020, Ajax Materials Corporation applied for a permit with EGLE’s Air Quality Division (AQD) to open a hot mix asphalt plant in Genesee Township, Michigan.⁸⁶ The company probably believed the application would pose few problems;⁸⁷ Ajax was a homegrown Michigan enterprise,⁸⁸ and this would be its seventh asphalt factory in the state.⁸⁹ Plus, Michigan needs asphalt—after all, Governor Gretchen Whitmer⁹⁰ ran on a promise to “fix the damn roads.”⁹¹

But this proposed site had a history. Ajax sited the factory just across the border from Flint, a community now synonymous with environmental racism. The tragic story of the Flint Water Crisis is well known, but it is only one chapter of the majority-Black city’s ongoing public health crisis. Asthma and cancer rates in Flint outpace the rest of Michigan and the United States⁹² while its poverty rate is nearly three times the national average.⁹³ Moreover, Ajax sited its plant in the Dort-Carpenter Industrial Park, home to a rogue’s gallery of fabled polluters. There, it would share space with the infamous Genesee Power Station, a wood-burning incinerator that was the focus of an extraordinarily rare EPA finding of racial discrimination in a state agency’s permitting process.⁹⁴ That area was also the proposed site for the steel mill at the center of the Select Steel civil rights complaint, the dismissal of which former EPA legal counsel Clifford Villa called “a historical low in EJ jurisprudence.”⁹⁵ These battles are still fresh for many Flint residents, although as time passes they have increasingly become the stuff of ancestral memory. “Most of the advocates involved in [the Genesee Power Station fight] ended up dying of different types of cancer,” Nayyirah Shariff explained.⁹⁶ Meanwhile, as more and more industry moved into the neighborhood, economic benefits did not materialize for the residents of Flint—in fact, quite the opposite, according to Shariff: “My parents bought their house in 1974 for $10,000, and at that point the house was under ten years old. And when I lived there in the mid-2000s, the house was only worth $12,000.”⁹⁷

Against this backdrop, Ajax’s factory and the draft permit drew significant opposition from the Flint community.⁹⁸ As required under Michigan law when a permit implicates a “known public controversy,”⁹⁹ EGLE conducted an extended notice-and-comment period to elicit feedback from the community.¹⁰⁰ Numerous comments focused on EJ concerns as community groups called on EGLE to modify the permit and thus account for the “existing exposures and demographic considerations of the community surrounding the proposed asphalt plant.”¹⁰¹ The EPA echoed these EJ concerns and raised more general misgivings about the draft permit’s failure to comply with federal standards around salient public health threats like particulate matter.¹⁰²

Ultimately, EGLE approved the permit but with important enhanced requirements, many of which Ajax claimed are unique among other asphalt plant permits in Michigan.¹⁰³ These requirements included an expanded criteria for testing pollutants; increased monitoring of visible emissions; and a ban on using highly toxic recycled used oil as a backup fuel.¹⁰⁴ Although Ajax asserted it was the victim of “prejudicial treatment,”¹⁰⁵ EGLE’s justification was straightforward: Flint is already overburdened by air and water pollution, and therefore the requirements of an asphalt factory built there should not be the same as one built in a community with fewer environmental burdens.¹⁰⁶ It sounds simple, but this was a remarkable move: While the federal government—despite Title VI and ambitious but largely rhetorical projects like Justice40—continues to ignore EJ communities across the country, EGLE found a way to operationalize a community’s serious EJ concerns, relying only on the agency’s existing power under longstanding environmental and administrative legal regimes.

B. EGLE’s EJ Power Is Put to the Test

Of course, these EJ enhancements would have been mere academic curiosities if a court had not upheld them. In its suit against EGLE, Ajax claimed that the agency “relied on EJ policy considerations to illegally impose unnecessary and unjustifiable conditions on Ajax’s Plant,” resulting in a permitting decision that was arbitrary and capricious.¹⁰⁷ The company also accused EGLE of “differential treatment” and “unfair[] prejudice[.]”¹⁰⁸ Ajax concluded that, because EGLE’s two primary sources of permitting authority—the federal Clean Air Act¹⁰⁹ and Part 55 of Michigan’s Natural Resources and Environmental Protection Act (NREPA)¹¹⁰—did not reference EJ, EGLE had engaged in regulatory overreach. Specifically, it argued that Rule 201 of Michigan’s Administrative Code only permits EGLE to set permit conditions that are “reasonably necessary to assure compliance with all applicable requirements.”¹¹¹ And because Ajax believed its permit complied with both Michigan’s air toxics rules and the National Ambient Air Quality Standards (NAAQS) under the Clean Air Act, the company argued that the relevant statutory authorities prohibited EGLE from imposing additional requirements¹¹²—especially those that emerged for the first time in notice-and-comment proceedings.¹¹³ Ajax viewed EGLE’s permit enhancements as little more than regulatory virtue-signaling: an act of appeasement to an oversensitive public mob.¹¹⁴ In an impressive bit of slippery-slope rhetoric, the company even argued that if these modest enhancements were allowed to stand, EGLE could require Ajax to use nothing but solar power should the public demand it.¹¹⁵

In response, EGLE stated that it was merely complying with Michigan’s “known public controversy” obligations.¹¹⁶ If the agency was prohibited from taking substantive action in response to public comments, the notice-and-comment process would become little else than “a pro forma requirement aimed at informing the public of a decision the agency has already made.”¹¹⁷ Moreover, EGLE’s decisionmaking was informed by both community feedback and twenty-seven comments and recommendations made by the EPA.¹¹⁸ EGLE pointedly addressed Ajax’s accusations of unfair prejudice, arguing that “[h]ow a particular facility compares to other previously permitted facilities in the same geographic area, or other facilities in the same industry, is irrelevant. Such an apples-to-apples comparison is not possible because no two sites are the same.”¹¹⁹

Complicating the litigation further, the city of Flint and five community organizations also sued EGLE.¹²⁰ The community groups claimed that EGLE subjected the Ajax permit to too little scrutiny, making the agency’s permit decision arbitrary and capricious.¹²¹ In mounting their case, these challengers adopted a posture in which they vigorously defended EGLE’s authority to consider EJ in its permit enhancements while also raising several technical criticisms and arguing that the agency should have done more.¹²² In response, EGLE disagreed with the factual and analytical premises of several arguments raised by the community groups and the City, adding that the court should defer to the agency’s expertise in these areas.¹²³

Judge David J. Newblatt of the Genesee County Circuit Court ultimately agreed with EGLE—against both Ajax on one side and the community groups and the city on the other.¹²⁴ In a decision consolidating all of the state court cases against EGLE, Judge Newblatt evaluated EGLE’s enhanced permitting requirements under a highly deferential standard, ruling that they were not arbitrary or capricious.¹²⁵ Critically, he grounded this ruling in existing law, finding that the Clean Air Act, state environmental laws and regulations, and Michigan’s administrative code all endowed EGLE with sufficient authority to consider EJ concerns in the permitting process.¹²⁶

C. The Legal Analysis Behind Judge Newblatt’s Order

The theme of Judge Newblatt’s order is agency deference.¹²⁷ At the outset, the order invoked “caution” and “restraint” as guiding principles when courts are asked to “interfere” with the actions of administrative agencies.¹²⁸ Thus, the challengers on both sides to EGLE had a steep hill to climb to show that the agency’s actions were arbitrary and capricious.¹²⁹

Judge Newblatt first considered EGLE’s obligations as a permitting authority acting pursuant to federal and state law. The wellspring of this authority is § 7401 of the Clean Air Act (CAA), which states that “air pollution prevention . . . is the primary responsibility of States and local governments.”¹³⁰ To that end, the CAA directs each state to submit a State Implementation Plan (SIP) to meet National Ambient Air Quality Standards (NAAQS), which the EPA sets pursuant to its rulemaking authority.¹³¹ Importantly, these standards set a “floor”—not a “ceiling”—for compliance, meaning that state agencies are free to exceed the federal standards.¹³² As Justice Marshall explained in Union Electric Co. v. EPA, the states have “virtually absolute power in allocating emissions limitations so long as the national standards are met.”¹³³

Of course, there remain EGLE’s obligations and limitations under state law. Michigan’s SIP is laid out in Part 55 of the NREPA.¹³⁴ This law grants EGLE broad authority to deny permits when a source “may present an imminent and substantial endangerment to human health, safety, or welfare, or the environment.”¹³⁵ The law’s requirement that EGLE hold public hearings in the event of a “known public controversy”¹³⁶ is also critically important. Meanwhile, the Michigan Administrative Code contains the more granular specifics of the state’s air permitting procedures and guidelines.¹³⁷

Again, as all the parties acknowledged, there is no mention of “environmental justice” or “cumulative impact analysis” in any of these laws, rules, or regulations.¹³⁸ Yet Judge Newblatt identified a constructive EJ authority when interpreting these provisions in light of (a) the region’s particular history and present pollution burdens; and (b) a broader judicial philosophy of agency deference.¹³⁹ It is worth pausing for a moment to acknowledge how remarkable and novel this conclusion is. Across the United States’s race-jurisprudence, judges have often viewed acts of alleged racial discrimination in a vacuum. But this perspective fails to acknowledge, for instance, how housing discrimination interacts with school segregation, which in turn affects college admissions, and so forth.¹⁴⁰ Here, however, Judge Newblatt refused to decouple the specific allegations of environmental racism from past injustices, pointing not only to the community’s existing environmental burdens but also to racial segregation in education and housing as factors to consider when approving permits.¹⁴¹

Naturally, Ajax had some qualms about this theory. It accused EGLE of following its “[p]olicy preferences”¹⁴² and bowing to “public backlash”¹⁴³ instead of adhering to law. Judge Newblatt agreed with Ajax that “environmental justice concerns, by themselves, are not recognized by the law as providing justification for substantive regulation”; but he reasoned too that they “can be a basis of a more robust process which can affect the result.”¹⁴⁴ It would be odd indeed to suggest that the ideas sourced from a notice-and-comment period, which the Michigan legislature requires when a permit sparks controversy, cannot inform substantive changes to permits. After thorough review, Judge Newblatt concluded that each permit enhancement lawfully fell within the limits of EGLE’s discretion.¹⁴⁵ That these changes were all either supported or explicitly recommended by the EPA’s comments was of special importance to Judge Newblatt.¹⁴⁶

Judge Newblatt also quickly dispensed with Ajax’s arguments that, because EGLE subjects similar Michigan factories to significantly less stringent standards, the agency treated Ajax prejudicially.¹⁴⁷ Such prejudice, theoretically, could be strong evidence that EGLE acted arbitrarily or capriciously. But in a vital analytical maneuver, Judge Newblatt agreed with EGLE that the permit could not possibly have been prejudicial because the circumstances facing Flint were unlike those of any other community where asphalt factories have been cited in Michigan. He explained:

It is . . . important to consider this in the context of the larger historical and societal issues affecting Flint and Genesee County. These dynamics include structural corporate disinvestment and loss of tax base, racial segregation and injustice, and rampant poverty and crime . . . . It could hardly be more foreseeable that these dynamics—historical economic and racial injustice along with the worst public health crisis in history—would create an inhospitable environment for the siting of an asphalt [plant] in an area already inundated with polluting sources in close proximity to a predominantly low income and minority population. It only stands to reason that these dynamics could cause the exertion of more energy and scrutiny in the permitting process, which in turn, could manifest in substantive differences between the terms of this permit and those of others without these specific dynamics.¹⁴⁸

In this remarkable statement, Judge Newblatt effectively put industries on notice that when they build a factory in or nearby a Michigan EJ community—or potentially EJ communities anywhere—they cannot be surprised if they are subjected to more stringent substantive permitting standards. And if state judges accept, as Judge Newblatt did, that it is well within a state’s broad public health police powers to protect some communities more than others based on a history of accumulated pollution, and if these same judges maintain the kind of agency deference they have historically shown,¹⁴⁹ then state agency EJ power may have a very high ceiling.

The Promise (and Perils) of Fighting Environmental Injustice Through State Permitting

We can learn many lessons from the Flint-Ajax litigation about what agencies can and cannot do to address EJ; the roles of other state and federal actors in these fights; the conflicts between industry and low-income communities; state governments’ difficulty in balancing opposing interests; and policy concerns over how agencies should address EJ. By tracing the contours of state EJ authority to define its floor and ceiling, this Part will assess the potential legal challenges to states’ EJ authority and propose how this power can be operationalized against an uncertain legal landscape hostile to the movement’s goals.

A. Where State Agencies’ Inherent EJ Power Begins and Ends

Outlining the precise scope of state agency authority to further EJ is not a straightforward task. To simplify matters a bit, this Note will focus on state agencies’ EJ obligations when implementing the Clean Air Act—in part because these are the obligations at issue in the Flint-Ajax case, but also because they are central to state permitting processes more generally. A review of statutory and case law suggests a low floor but high ceiling for this power, and state EJ legislation is likely the best way to “raise the floor.” At minimum, states must comply with federal statutory and constitutional civil rights mandates—mandates that, as Part I argues, are relatively easy to meet absent rank, invidious racism. And while state EJ laws, like the ones passed by New York and New Jersey, raise that bar, an enterprising state agency may go further—even without legislation—by exercising its broad authority to protect public health.

1. What State Agencies Are Required to Do

In theory, federal law imposes important EJ obligations on state agencies; but in practice, the prevailing statutory and case law require very little. In the Flint-Ajax case, Judge Newblatt implied that federal and Constitutional civil rights provisions, paired with persuasive EPA guidance and a history of environmental injustice in Flint, generated a duty by EGLE to at least consider EJ impacts.¹⁵⁰ But, because he sided with EGLE based on a theory of agency deference, Judge Newblatt did not flesh out the exact contours of these minimum requirements.¹⁵¹ And even if courts began to adopt this “duty to consider,” it would be a mere procedural mandate—a perfunctory box-check—like the one NEPA requires at the federal level.¹⁵²

Part I explained the limitations of the current Title VI process and the extent to which agreements that resolve disparate-impact claims merely require state agencies to go through the motions of community engagement.¹⁵³ More substantive agreements—like the one the EPA attempted to negotiate with Louisiana—led to litigation, an injunction against the EPA, Title VI complaints across the state, and an existential threat to disparate-impact analysis writ large.¹⁵⁴

Although Judge Newblatt’s decision talks of EGLE’s EJ “requirements,” it is unclear precisely where those requirements arise from, aside from the broad anti-discrimination mandates of the Fourteenth Amendment and Title VI.¹⁵⁵ The City of Flint’s brief points to the “hard look” EJ analysis discussed in Sierra Club v. FERC; but that case—and others like it—concerned federal projects subject to NEPA requirements, which would not apply to Ajax’s asphalt plant.¹⁵⁶ Rather, a stronger case can be made that the EJ “requirements” at issue here were actually rooted in this permit’s specific circumstances, including the existence of a “known public controversy,” the unique character and history of the Flint community, and the EPA’s comments to EGLE.¹⁵⁷ Judge Newblatt put particular emphasis on the EPA’s letter accompanying its comments to EGLE by stating that the document expressed “a legal obligation to consider environmental justice concerns in a meaningful way.”¹⁵⁸ Yet, the letter itself spoke more of vague “commitments” to EJ as opposed to concrete obligations; in fact, the closest the EPA came to describing an affirmative EJ duty was when it discussed EGLE’s “obligations under civil rights laws and policies”¹⁵⁹—obligations that, after decades of juridical hack-and-slash against the Equal Protection Clause, mean more on paper than in practice.¹⁶⁰ Thus, EGLE’s only real EJ “duty” here—aside from a good-faith effort to avoid openly racist villainy under Washington v. Davis—is the procedural one mandated because of a known public controversy.¹⁶¹

Maybe the procedure accompanying the known public controversy provisions; the statutory and constitutional civil rights provisions; and EGLE’s broad duty to protect air quality and public health are sufficient to adequately protect EJ interests. But remember that agency deference cuts both ways, protecting actions whether they favor EJ interests over industry or industry over EJ. Imagine if EGLE, instead of tightening Ajax’s permit restrictions, left them as-is. Would the city and the community groups still have a colorable claim against EGLE? Probably not. EGLE complied with its procedural requirements, conducting “known public controversy” notice-and-comment per Part 55 of Michigan’s NREPA. EGLE even asked Ajax if it could site the factory elsewhere, thereby protecting itself from allegations of discriminatory intent in a potential Equal Protection challenge.¹⁶² Certainly, there may have been non-judicial consequences of EGLE’s decision to dismiss the EPA’s comments and rubberstamp the Ajax permit; the Title VI complaint against EGLE would still have been floating around, and we may wonder whether the EPA’s settlement would have been so favorable to EGLE had the agency not ratcheted up Ajax’s permit requirements.¹⁶³ But that’s not a legal duty; it’s strategic pressure—pressure that may soon be sapped of its potency if courts neutralize (or the president paralyzes¹⁶⁴) Title VI enforcement.

Limited state jurisprudence outside Michigan affirms that while state agencies may have inherent EJ authority, they do not have inherent EJ obligations absent some legislative directive.¹⁶⁵ Friends of Buckingham v. State Air Pollution Control Board illustrates this point.¹⁶⁶ There, two utility companies developing the Atlantic Coast Pipeline applied for a permit with Virginia’s analogue to EGLE, the Department of Environmental Quality (VDEQ), to build a compressor station in Union Hill, a historic, predominantly Black community in Buckingham County.¹⁶⁷ After a long notice-and-comment period eliciting serious EJ concerns, VDEQ’s Air Pollution Control Board nevertheless approved the permit.¹⁶⁸ Community groups appealed the approval to the Fourth Circuit,¹⁶⁹ which had jurisdiction under the Natural Gas Act.¹⁷⁰

Applying Virginia law, the Fourth Circuit ruled that the Board failed to satisfy EJ requirements under the state’s Commonwealth Clean Energy Policy.¹⁷¹ Enacted in 2006, the law expressed a broad commitment to “[e]nsure that development of new, or expansion of existing, energy resources or facilities does not have a disproportionate adverse impact on economically disadvantaged or minority communities.”¹⁷² Without imposing any specific guidelines, this commitment, which the court read in conjunction with the permitting authority’s statutory mandate to consider public health consequences,¹⁷³ created a duty to consider EJ impacts.¹⁷⁴ Similar to the NEPA cases,¹⁷⁵ these requirements are purely procedural; the permit was ruled invalid not because of disproportionate impacts but because VDEQ’s one-page site evaluation made no mention of those impacts.¹⁷⁶ Ultimately, mere procedural justice was enough in this case;¹⁷⁷ Duke Energy and Dominion Energy canceled the pipeline seven months after the ruling, citing delays, mounting costs,¹⁷⁸ and legal uncertainty.¹⁷⁹ But at the same time, the decision created a clear roadmap—check the boxes, build the pipeline––for industry-friendly state agencies to help companies avoid such delays and legal costs, highlighting the hollowness of procedural solutions.

Although it is true that claimants probably need a state statute to require agencies to consider EJ in the permitting process, Friends of Buckingham shows that the legislative directive need not be terribly specific or robust. As one case study persuasively argues, “Friends of Buckingham demonstrates the power of state law to protect vulnerable communities, especially in the absence of federal statutory protections against environmental injustice and environmental racism.”¹⁸⁰

2. What State Agencies Are Permitted to Do

Although it is tough to locate a state agency’s EJ requirements absent state legislation, the Flint-Ajax case suggests that the arbitrary-and-capricious standard embraced by Michigan¹⁸¹ and other state courts¹⁸² allows state agencies enormous leeway to consider EJ in permitting decisions should they so desire.¹⁸³ This authority is rooted in states’ broad mandates to protect the health and safety of their citizens, and it finds strong statutory support in provisions that allow state environmental agencies to act when an air pollution source poses “imminent and substantial endangerment.”¹⁸⁴ And although this Note relies on Michigan law and the circumstances of Flint-Ajax to demonstrate this, these principles apply to state agencies generally.

EGLE, like other state environmental agencies across the country, invokes public health in its mission statement,¹⁸⁵ and the relevant law supports the view that this public health authority is expansive enough to encompass EJ. EGLE nodded to this expansiveness in its trial-court brief, arguing that “nothing prohibits EGLE from amending a draft [Permit-to-Install] to impose permit conditions in response to public comments, unique site conditions, previous insufficient analysis, or its own expertise.”¹⁸⁶ In addition, the Michigan Administrative Code codifies this deference by allowing EGLE to subject permits “to any condition . . . that is reasonably necessary to assure compliance with all applicable requirements.”¹⁸⁷ Granted, there is no Michigan case law or statutory law explicitly stating that equity or other EJ-related concepts count as “condition[s]” under the Michigan Administrative Code.¹⁸⁸ But Judge Newblatt implicitly endorsed this view when he agreed with EGLE that an “apples-to-apples” comparison between a permit in an EJ neighborhood and one in a non-EJ neighborhood is impossible because the public health effects differ in magnitude depending on the community’s existing environmental burden.¹⁸⁹

It is important not to overstate an agency’s EJ power. Each affirmative step to tighten a permit for EJ reasons must be supported by substantial evidence.¹⁹⁰ Moreover, while the emphasis on agency deference found in Michigan’s case law and administrative rules is by no means unusual, there may be considerable variance in precisely how much deference state courts are willing to extend.¹⁹¹ Another concern is that different state agencies take different approaches to how they balance their public health mandate against other interests. For example, Texas’s state environmental agency frames its mission as “protect[ing] our state’s public health . . . consistent with sustainable economic development.”¹⁹² Implicit here is the reality that state permitting authorities, regardless of high-minded rhetoric around fresh air and beautiful vistas, are also economic development agencies that balance industry interests against environmental and public health concerns.¹⁹³ But this dual purpose need not be inconsistent with EJ. The problem at the center of the EJ movement is similarly twofold: it is not only that non-white, low-income communities disproportionately bear the public-health burdens of industry; they also fail to reap the economic benefits of these industrial activities.¹⁹⁴ Indeed, many view EJ as merely one vector of a broader fight for economic justice.¹⁹⁵ In other words, the EJ movement is by no means naive to the trade-offs between industry and public health; it simply wants to see those costs and benefits more equitably distributed.

To advance EJ initiatives under their broad public health mandate, state permitting agencies may utilize a standard written into numerous state and federal environmental laws known as “imminent and substantial endangerment.”¹⁹⁶ Michigan empowers agencies to deny a permit for one of eight reasons, including when a source poses an “imminent and substantial endangerment to human health, safety, or welfare, or the environment.”¹⁹⁷ This begs the question: Could EGLE have rejected Ajax’s permit outright on a finding of imminent and substantial danger? The agency said no, rejecting the premise that the Ajax facility posed imminent, substantial danger. However, EGLE’s rejection was notably conclusory; it merely pointed out that the enhanced permit complies with NAAQS and state air toxics rules.¹⁹⁸ But for more enterprising pro-EJ agencies, the language of “imminent and substantial endangerment” is open to interpretive possibilities.

Despite no apparent case defining the meaning of “imminent and substantial endangerment” in the context of Michigan environmental law, the standard has been heavily litigated at the federal level.¹⁹⁹ In United States v. Valentine, a federal court gave loose meaning to the phrase as used in the federal Resource Conservation and Recovery Act (RCRA).²⁰⁰ As to the imminence prong, the district court explained that “[a]n endangerment is not actual harm, but a threatened or potential harm . . . . [T]he harm may not be realized for years.”²⁰¹ And as to the substantial prong, the court held that the agency “need not quantify the endangerment to prove that it is substantial. It is sufficient to demonstrate that there exists reasonable cause for concern for the integrity of the public health or the environment.”²⁰² Consider how this expansive reading of “imminent and substantial” interacts with general judicial deference toward agency actions that are not arbitrary or capricious: Might EGLE have conducted—per the EPA regional office’s recommendation—a cumulative impact analysis of the area,²⁰³ only to determine that decades of air pollution and soaring asthma rates posed an unacceptably high risk to public safety? A risk so high that no enhancement could save this permit and therefore the factory must be sited elsewhere? Depending on EGLE’s findings and methodology, it’s plausible. To be clear, this does not mean that EGLE could reject the permit because Ajax’s factory threatened to increase emissions in an overburdened community by, say, 0.005%; the arbitrary-and-capricious standard, though permissive, does not give agencies carte blanche to act unreasonably.²⁰⁴

Of course, EGLE has other legally permissible options apart from completely denying or substantially modifying a permit. For example, community groups criticized EGLE for analyzing Flint’s air quality using data from non-representative communities in Lansing and Grand Rapids.²⁰⁵ Instead, the groups argue, EGLE should have relied on better, more representative data to inform its permitting decision. The wisdom of this decision aside, EGLE’s use of Lansing and Grand Rapids data was, according to Judge Newblatt, rational and in accordance with the law.²⁰⁶ Yet, nothing suggests that EGLE was prohibited from following the community groups’ advice as to the permitting decision.

Following its Flint-Ajax decision, EGLE told journalists that it enhanced Ajax’s permit as much as it could, adding that it has no power to “more directly consider environmental justice, equity, and civil rights principles” without EJ-specific state legislation.²⁰⁷ But while that may be true as a political matter, as a legal matter this stance does not sit so comfortably beside the expansive view of agency deference EGLE espoused in its Ajax filings.²⁰⁸

But maybe this is the wrong question. Instead of asking, “How far can EGLE go to address EJ?” a more precise—and more politically palatable—inquiry may be, “How much can EGLE consider community-specific factors in its efforts to protect public health writ large?” Having reframed the question, EJ functions less as a standalone policy concern, and more as one part of a larger operational framework agencies use to address matters of public concern that fall within their statutory authority. Put another way, if EGLE is in the business of protecting public health—which is abundantly clear from its statutory mandate²⁰⁹—then why can’t it consider cumulative impacts when approving permits? How can it make reasoned judgments about public health if it evaluates a permit in a beleaguered community like Flint no differently than a permit in a wealthy, majority-white neighborhood with low pollution burdens and asthma rates? Critically, this framing applies outside Michigan to all state environmental agencies, which exist to protect public health and safety (notwithstanding any unofficial mandates to support industry at the expense of community members).²¹⁰ Moreover, even though EGLE modified Ajax’s permit based on conditions specific to Flint, similar sacrifice zones exist across the United States.²¹¹ Indeed, pursuing EJ initiatives under the race-neutral banner of “public health for all”—though arguably problematic²¹²—may be the best way to resist legal and political threats to this authority.

3. What State Agencies Should Do

Assuming state agencies possess broad, if untapped, power to address EJ concerns, the question remains: How should they use it? Although it is tantalizing for EJ advocates to imagine what an aggressively pro-EJ state agency could accomplish if left to its own discretion, state legislation that provides agencies with affirmative EJ instructions can help “raise the floor” of EJ compliance and bring greater clarity and predictability to all stakeholders in the permitting process. Meanwhile, although the EPA has been hamstrung in its efforts to address EJ,²¹³ federal agencies can still support states by providing EJ resources and guidance. Finally, there are normative questions about the best use of agency EJ power, as state officials grapple with the proper balance between industry and equity. And while this Note is firm in its conviction that EJ is best framed—legally, socially, and morally—as an essential prong of states’ public health mandates, this discussion ultimately implicates much larger questions about the roles of governments and markets that naturally exceed the scope of this Note.

Although I argue that agency EJ power is broad even without an explicit legislative directive, such directives may be necessary to “raise the floor” for what agencies must do in the EJ space. As Friends of Buckingham illustrates, these laws need not be comprehensive; there, the Fourth Circuit read an affirmative duty to consider EJ impacts from a Virginia law’s vague call on state agencies, when exercising their general permitting power,²¹⁴ to “[e]nsure[] that development of new, or expansion of existing, energy resources or facilities does not have a disproportionate adverse impact on economically disadvantaged or minority communities.”²¹⁵

Other state laws go further. In 2020, New Jersey passed what at that time may have been “the strongest EJ law in the country.”²¹⁶ It requires certain permit applicants to produce EJ impact statements and requires the New Jersey Department of Environmental Protection (NJDEP) to

deny a permit for a new facility upon a finding that approval of the permit . . . would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities . . . .²¹⁷

This strong language, however, contains a major exception that saps much of the law’s power: If NJDEP “determines that a new facility will serve a compelling public interest in the community where it is to be located, the department may grant a permit that imposes conditions on the construction and operation of the facility to protect public health.”²¹⁸ Nevertheless, this law is a welcome codification of agencies’ existing EJ deference, although it has not been tested in courts.²¹⁹

Meanwhile, the federal government still has an important role to play, even if it’s been relegated to the sidelines in terms of Title VI. As seen in the Flint-Ajax case, the EPA’s comments played a critical role in justifying EGLE’s permit enhancement.²²⁰ Although robust public participation is necessary for procedural EJ, agencies are far more likely to heed comments from those they deem fellow travelers in expertise than to listen to on-the-ground community groups.²²¹ Thus, federal agencies have an opportunity to influence state EJ policy by directly calling attention to EJ impacts within notice-and-comment proceedings.

The EPA can also be a valuable partner to state agencies building out their cumulative impact analysis procedures. Broadly speaking, cumulative impact analysis (CIA), or cumulative risk assessment (CRA), is an environmental assessment that goes beyond the immediate impact of the new pollution source. CIA measures the “effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions.”²²² Such analyses are a cornerstone of EJ because they take into account the history of the site and the accumulated air pollution that EJ communities breathe every day. However, state cumulative impact analyses are often criticized as cursory and deficient, even when they comply with state or federal statutory requirements..²²³ For example, while EJ laws in New Jersey²²⁴ and New York²²⁵ require some form of cumulative impact analysis, the statutory mandates do not speak much to the specific procedures that agencies should follow. As these states propagate rules and regulations on how to complete cumulative assessments, the EPA can be an important resource to ensure these assessments are comprehensive and effective.²²⁶

Finally, there is an implicit presumption in this Note that an expanded EJ role for state agencies is normatively good. Meanwhile, critics of EJ-oriented permitting processes (the good-faith ones at least) tend to root their arguments in economic justice.²²⁷ The thinking goes that people of color and individuals with low incomes need jobs as much as—or more than—they need clean air.²²⁸ But Flint-area activists—including Mona Munroe-Younis of the Environmental Transformation Movement of Flint, one of the five community groups that sued EGLE over its Ajax permit—are deeply skeptical of this proposition, particularly as it relates to Ajax’s facility outside Flint.²²⁹ According to Munroe-Younis,

Ajax told a member of our coalition that they are expected to hire from within the company to staff the asphalt plant in Genesee Township, and that the jobs will likely require master’s degrees. The few jobs that the new plant would create are unattainable for surrounding residents, depriving them of direct economic benefit while burdening them with pollution.²³⁰

This argument exemplifies EJ advocates’ “skeptic[ism] of market-based solutions, given the historical failure of a market approach to protect or benefit disadvantaged communities.”²³¹

Another critique specific to the Flint-Ajax dispute is that Governor Whitmer ran on a platform of “fix[ing] the damn roads”²³²—and that’s hard to do that without a lot of asphalt. Moreover, the roads are as bad in Flint as they are anywhere in Michigan,²³³ and the state is devoting a substantial portion of its transportation budget to Flint-area improvements.²³⁴

But these arguments rooted in jobs and structure arguably provide even more reasons to entrust state agencies with this authority. Permitting decisions require officials to weigh varied and competing public considerations, including: industry versus egalitarianism; resource extraction versus public health; and, in the case of Ajax’s asphalt facility, safer roads versus safer lungs. Given their wide discretion, technical expertise, relative proximity to on-the-ground conditions, and democratic responsiveness as arms of the executive, state agencies are well-suited to balance those competing policy interests and adapt this balance to local conditions.

B. Potential Challenges to State Agencies’ EJ Authority

Given that EGLE’s Ajax decision represented a significant departure from past practice, it is not surprising that the permit invited litigation from the company. But while EGLE prevailed at the trial level,²³⁵ Ajax’s brief was not terribly robust, meaning that we can expect to see more creative and well-developed challenges against state agency EJ actions going forward.²³⁶ This section addresses some of the more sophisticated legal arguments that industry parties might raise in similar permit disputes, including attacks on race-conscious policymaking, preemption, and claims rooted in various administrative law doctrines newly embraced by the U.S. Supreme Court.

Attacks on Race-Conscious Policymaking

Arguably the most dangerous challenge to agencies’ EJ authority is the premise that any consideration of race in the permitting process violates the Fourteenth Amendment. Race-conscious policies of all kinds are facing greater scrutiny after Students for Fair Admissions v. Harvard—a Supreme Court decision that prohibited affirmative action in college admissions²³⁷—and state agencies must exercise appropriate care when rooting initiatives in racial equity.²³⁸

Even in post-SFFA America, certain circumstances, though narrow, still permit state actors to consider race and survive the crucible of strict scrutiny.²³⁹ Outside the prison context,²⁴⁰ the Supreme Court recognizes only one “compelling interest” that may justify race-based government action: the remediation of “specific, identified instances of past discrimination that violated the Constitution or a statute” by the same state body now seeking to remedy it.²⁴¹ Courts have set the bar very high for these claims; for example, in Parents Involved v. Seattle School District No. 1, the Supreme Court rejected Seattle’s efforts to remediate past discrimination in public schools because the city had never been under a de jure segregation regime and was not subject to a court-ordered desegregation decree.²⁴² Since EJ lacks a clear analogue to the broad de jure segregation mandates of the Jim Crow South, EJ litigants will likely struggle to assert remediation as a compelling government interest.²⁴³ And even if litigants could justify remediation in the EJ context; the agency would still have to show that its EJ program was narrowly tailored to that end under the strict scrutiny framework.²⁴⁴

Given the difficulty of surviving strict scrutiny and the federal judiciary’s increasing skepticism of race-conscious policies,²⁴⁵ state agencies would be less susceptible to legal challenges by couching their initiatives in race-neutral language. This is understandably controversial to racial justice advocates,²⁴⁶ for it seems to play into the Supreme Court’s “ostrich-like”²⁴⁷ attitude that it does not see race—and therefore nobody else should either.²⁴⁸ But while there are very strong arguments for why race-neutral policies have failed to increase racial diversity in university admissions,²⁴⁹ this approach may be more effective in the EJ context.

For example, the Biden administration developed a Climate and Economic Justice Screening Tool (CEJST)²⁵⁰ that uses twenty-one factors to identify a “disadvantaged” community²⁵¹—but race is not one of them.²⁵² However, multiple analyses have found that the tool’s race-neutral criteria operate as effective proxies for race.²⁵³ According to Grist researchers, “many of the criteria that the tool uses—proximity to hazardous facilities, linguistic isolation, and proximity to traffic, among others—are effectively functioning as proxies for race.”²⁵⁴ An analysis by E&E News even found that the White House’s race-neutral methodology was more effective at identifying communities of racial and ethnic minorities in New York State than the race-conscious methodology used by the New York Climate Justice Working Group.²⁵⁵

To be clear, these findings do not entirely address critiques of race-neutral EJ initiatives. For example, by relying heavily on income indicators to identify EJ communities, the CEJST may fail to account for research showing that people of color, regardless of income, are 2.4 times more likely to be exposed to heavy pollution than their white counterparts.²⁵⁶ There are also ontological reasons to account for race explicitly, as “[d]oing so would acknowledge the role of race and racism in creating and reinforcing the inequitable distribution of health, housing, environmental and economic costs.”²⁵⁷

In any event, facially race-neutral proxies are also not immune to legal challenges. Washington v. Davis held that “[a] statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race.”²⁵⁸ And as long as “disparate impact” remains alive, the effectiveness of these proxies could backfire, inviting Title VI challenges.²⁵⁹ In February 2024, the Supreme Court refused to clarify its position on facially race-neutral proxies by denying certiorari in a case involving a competitive magnet school accused of using race-neutral proxies to engage in unconstitutional “racial balancing.”²⁶⁰ Despite this bit of mercy by the Court, signs suggest that race-neutral proxies may be the next precedent to go.²⁶¹ But if faced with a choice between facially race-neutral or facially race-conscious initiatives, agencies should be aware that the former is significantly better shielded in a post-SFFA world.

2. Preemption

Federal preemption offers another vector of attack for industry parties appealing EJ decisions.²⁶² Under Title II of the Clean Air Act, states are expressly preempted from adopting some emissions standards that differ from federal standards, but this is a very limited carveout that applies only to new motor vehicles or engines.²⁶³ Implied preemption, on the other hand, arises when a federal regulatory scheme is so pervasive or the federal interest is so dominant “that the federal system will be assumed to preclude enforcement of state laws on the same subject.”²⁶⁴ But such claims (unless they relate to vehicle emissions) will likely be difficult to make under the Clean Air Act.

Drafted in the spirit of “cooperative federalism,”²⁶⁵ the CAA expressly empowers states to set air quality standards that need only meet federal guidelines;²⁶⁶ states are free to exceed these standards if they so choose,²⁶⁷ and indeed Michigan has several permitting requirements that go beyond what federal law requires.²⁶⁸

Nevertheless, the term “cooperative federalism” is not some talismanic phrase that, once invoked, eliminates a finding of implied preemption. In International Paper Co. v. Ouellette, the U.S. Supreme Court found that the Clean Water Act (CWA), which like the CAA draws on principles of cooperative federalism,²⁶⁹ nevertheless preempted the use of state nuisance suits to litigate water pollution claims against out-of-state sources.²⁷⁰ The Court ruled that these suits posed an impermissible obstacle to the CWA’s permitting regime by subjecting industries to “vague and indeterminate” standards.²⁷¹

But state agencies retain strong arguments under Ouellette. There, the Court feared that the “vague[ness]” and “indetermina[cy]” of parallel federal and state regimes created a risk that an alleged industry polluter would not know which state’s laws governed their behavior.²⁷² Such concerns are not implicated in state permitting cases, where only one state’s laws are generally invoked. Instead, courts reviewing state permitting decisions are likely to fall back on the presumption against preemption, which serves “as a bulwark against implied preemption given the potential intrusion into states’ police powers over ‘the life, health, and safety of the general public.’ ”²⁷³ Thus, the Clean Air Act’s structure and objectives, combined with the intrastate nature of most permitting disputes, makes preemption an unlikely threat to state permitting agencies’ EJ authority.

3. The Persuasive Effects of Other Major Supreme Court Decisions

Finally, there are important developments in federal administrative law that, even though they do not directly impact state law, may influence how state courts—and federal courts applying state law—review agency determinations. For example, although EGLE did not base its decision on Chevron deference²⁷⁴—and, in fact, Michigan is among a handful states to explicitly disavow the doctrine²⁷⁵—the Supreme Court’s overruling of Chevron²⁷⁶ is part of a broader offensive²⁷⁷ against the kind of judicial deference that empowers state agencies to take substantive EJ action. Whatever happens in the aftermath of Loper Bright may serve as an instructive case study on how state courts and legislatures respond to the Supreme Court’s increasing skepticism of agency deference. Some state legislatures may codify anti-deference standards, framing such efforts as “fairly uncontroversial” given Supreme Court precedent.²⁷⁸ Moreover, Loper Bright “could provide a blueprint for a litigant to attack the state deference standard head-on.”²⁷⁹

The Supreme Court’s 2007 holding in Massachusetts v. EPA may also threaten agency EJ action in the absence of a clear statutory mandate.²⁸⁰ There, the Supreme Court ruled that while the EPA was free to use its “judgment” to decide whether to regulate greenhouse gases, it could not base that judgment on policy considerations not found in the Clean Air Act.²⁸¹ Specifically, the Court took issue with the EPA’s reliance on geopolitical and technological considerations that were purportedly irrelevant to the public health aims clearly elucidated by the statutory text.²⁸² However, a state agency implementing EJ considerations can likely distinguish its actions from Massachusetts v. EPA by pointing to the state’s broad mandate to ensure the health, safety, and welfare of its citizens—and then arguing, quite naturally, that EJ is all about the health, safety, and welfare of its citizens.

Candidly, the idea of addressing environmental racism without saying the words “environment” or “racism” is a difficult pill to swallow; naming these concepts plays a crucial role in unmasking the illusion of objectivity at the heart of our overly formalistic legal culture. However, advocates cannot ignore that agencies are on thin ice when pursuing novel approaches to old policy problems, and that judges are increasingly wary of administrative decisions that appear to exceed statutory authority—especially when it comes to race and the environment. Couching EJ action firmly within the language of public health will better insulate state agencies from litigation initiated by an energetic and activist conservative legal movement.²⁸³

Conclusion

State agencies like EGLE are fond of saying they’re doing all they can to address environmental injustice, absent state legislation or formal federal guidance. But the Flint-Ajax case shows that, while state legislators and the EPA have important roles to play, state agencies possess immense power to implement substantive EJ protections in the context of air quality permitting. Given the enforcement vacuum left by the federal government, it is more urgent than ever that agencies exercise this power to promote EJ in substantive, rather than cursory or merely procedural, ways. Granted, while this Note contends that there are few legal restrictions on this authority, we should acknowledge the immense political challenges in this space, which manifest in the more informal ways that industry exerts influence over state agencies.²⁸⁴ But by calling out the authority that state and local actors already possess in the EJ space, we can more appropriately assign accountability when a neighborhood like the one Nayyirah Shariff lives in bears the burdens of industry—the asthma, the smells, the noise—but reaps none of the benefits.

* J.D., May 2024, University of Michigan Law School. I am extraordinarily grateful to Nick Bagley for encouraging me to write this Note and offering me guidance every step of the way. Thanks also to Rachel Rothschild, whose generosity with her time and insight was critical in helping me frame my argument; Michelle Adams, without whom I’d have been completely hopeless in navigating the Supreme Court’s race jurisprudence; and Chris Walker, for talking me through the many thorny administrative law issues at the heart of this piece. I owe an enormous debt to the following attorneys, activists, and community leaders for their remarkable candor and the trust they placed in me to tell this story: John Petoskey, Debbie Chizewer, Nayyirah Shariff, Mona Munroe-Younis, and Nick Leonard. Endless thanks to Alex Izbiky’s Notes team, Peter VanDyken’s Executive Editor team, E.I.C. Sunita Ganesh, and the rest of the MLR editors who give so much of themselves to help writers do their best work. Special shoutouts as well to Hannah Juge and Abe Eichner for their very helpful feedback on early drafts. Finally, nothing I do is possible without the support of Mika Handelman, whose love and kindness is everything to me.