Permitting Under the Clean Air Act: How Current Standards Impose Obstacles to Achieving Environmental Justice

Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to provide any remedy for these communities. Rather than starting at the bottom and focusing on the negative effects that occur under the current system, this Note argues that a different approach should be adopted. Under this new approach the analysis begins by examining the cause of the problems-the statutes and regulations established by Congress and implemented by federal and state agencies. In particular, the Note focuses on how the current framework of technology-based permitting provides facilities with the legal ability to continue emitting dangerous levels of pollution that disproportionately harm environmental justice communities. The Note uses a case study from Michigan to illustrate the problems with the current permitting system. It concludes with suggested changes that could be implemented by states, or at the federal level, to provide adequate protections for environmental justice communities so that the environmental justice movement has a better chance of achieving its goals