Toxic Cities: Neoliberalism and Environmental Racism in Flint and Detroit Michigan

Abstract

The consequences of neoliberal colorblind policies concerning environmental justice in Michigan are explored using critical race theorist Alan Freeman’s victim and perpetrator perspectives on legal decision-making. The victim perspective allows evidence of disparate impact to be proof of unequal protection under the law. The dominant perpetrator perspective requires proof of the intent to discriminate for a racial discrimination claim to be valid. Michigan’s environmental legal history is examined through the lens of these two perspectives, tracing how Michigan as a state, with the aid of the federal government, has institutionalized a racialized caste system of ‘worthiness’ for environmental protection through strict adherence to the perpetrator perspective. Specific attention is paid to the water crisis in Flint and a Marathon Oil refinery in Detroit. The injustices occurring at these locations are less the result of racist individuals than the product of decades of neoliberal colorblind policymaking supported and upheld in our court rooms.

Keywords

environmental justice environmental racism colorblind racism neoliberalism perpetrator perspective unequal protection critical race theory

Introduction

At times, law has offered the promise of liberation from the racialized caste system present in the United States. However, more often than not, the law reneges on its promise and serves to reinforce and legitimize the persistence of racialized inequality. The law, despite claims of formal rationality and strict adherence to due process, more often serves the substantive free market goals of neoliberalism. The task here is to explore, using two case studies, the crisis of neoliberalism in Michigan as it relates to laws and legal decision-making that both directly and indirectly promote environmental racism. More specifically, the situations in Boynton, a neighborhood in southwest Detroit in the shadow of a Marathon Oil Corporation’s tar sands refinery, and the lead poisoning water crisis in Flint are used to highlight the crisis of Michigan’s environmental legal history using critical race theorist Alan Freeman’s (1995, 1998) victim and perpetrator perspectives on legal decision-making.

The victim perspective, embraced by the US Supreme Court briefly in the early 1970s, allowed evidence of disparate impact to be considered as evidence of unequal protection under the law. The dominant perpetrator perspective, emerging only years later, requires proof of racist intent for a racial discrimination claim to be valid – a nearly impossible task as intent is rarely stated, much less documented. It is through strict adherence to the perpetrator perspective on the part of the state and the federal government that a racialized caste system of ‘worthiness’ has become institutionalized: a system that systematically devalues the lives of black citizens and elevates the value of white lives when confronted with the ‘need’ for environmental protections.

In making sense of environmental racism in Michigan I integrate literatures on neoliberalism, socio-legal studies, environmental injustice, and critical race theory. It is only through this type of intellectual collaboration that the inhumanity of environmental racism by the neoliberal state can begin to be fully understood. The contribution this piece makes to this special issue is to draw parallels between the Flint water crisis and a lesser known case of environmental disregard for black lives in southwest Detroit. In highlighting these parallels I make legible the ‘colorblind’ legal steps that produce such racially disparate outcomes, which I argue can, does, and will occur in any place adhering to neoliberalism and free market ideology.

In the following pages the effects of neoliberalism on environmental justice are explored in terms of legal decision-making and treatment by regulatory agencies. To begin, the literatures on environmental racism and neoliberalism are reviewed. Then, the concepts of Derrick Bell’s interest convergence and Alan Freeman’s victim and perpetrator perspectives are examined more closely, paying particular attention to the effects this shift in legal perspective has had on issues of racial justice. Next, environmental regulatory agencies and remedies are discussed at the state and federal level. Then, the cases of the Flint water crisis and a home buyout program instituted by Marathon Oil in southwest Detroit are explored. Specifically, these examples examine the crisis of neoliberal governance and the attendant failure to protect poor people of color from discrimination while successfully instituting a government backed system of worthiness based on race first and class second. Rather than providing a narrative of environmental injustice at these two sites, various bodies of literature are combined to provide an interdisciplinary examination of how specific laws and programs, in adherence to neoliberal ideals, have served to perpetuate environmental injustice. Lastly, a summary is provided along with suggestions for future directions.

Environmental (In)Justice

Environmental racism refers to the ‘processes that resulted in minority and low-income communities facing disproportionate environmental harms and limited environmental benefits’ (Taylor, 2014: 2). Numerous studies have found that race is the strongest predictor of exposure and proximity to environmental hazards (see Asch and Seneca, 1978; Bullard, 1983; USGAO, 1995; UCC 1987; Mohai and Bryant, 1992; Mohai et al., 2009). Further, there is considerable evidence that there are direct links between racial segregation, exposure to environmental hazards, and poor health outcomes (Crowder and Downey, 2010; Downey, 2006; Williams and Collins, 2001).

A common objection to claims of environmental racism is that the disproportionate siting of hazardous facilities near or in minority communities is not the result of intentional discrimination, but rather a reflection of a natural sorting of individuals in response to neighborhood characteristics (Taylor, 2014: 71). The veracity of the latter is up for social science debate. However, this paper eschews that line of questioning in favor of a consequentialist approach. The problem of environmental racism is not one of intent but impact. Contemporary American racial frames insist upon finding responsible actors to place individual blame for racism’s continued legacy. However, such views limit the pursuit of justice to punitive frameworks and reduce opportunities to pursue racial justice on a grander scale. By focusing only on intent we make what should be treated as an institutional issue the fault of individuals, whose racial intents remain elusive

Flint and Detroit, Michigan, are not unusual in their role as magnets for environmental hazards and toxic waste facilities. Rather, they share social, political, legal, and economic history with other ‘rust-belt’ cities that have experienced similar declines in industry. They are ‘sacrifice zones’, areas that have been offered up as tribute to free-market ideology which are opened up for exploitation in the name of profit, corporate capitalism, and ‘progress’ (Hedges and Sacco, 2012; Lerner, 2010). All have long histories of racial segregation, all have suffered the flight of meaningful employment, businesses, and whites with their attendant capital. As such, any attempt to understand the various laws and practices that have led to the disproportionate impact of environmental hazards on these communities of color must begin with an understanding of institutional context and structural inequality. So while individual racists have most certainly been involved in this long history of disinvestment and discrimination, the search for individuals to blame is fruitless. Cole and Foster (2001) write: ‘The insistence on establishing a linear, causal connection between disproportionate outcomes and a “single bad actor” permeates our society’s legal and social understanding of racism and injustice. This prevailing understanding obscures the forces at work in producing environmental racism’ (pp. 12–13). Even the briefest of looks at the history of race-based spatial segregation in the United States, including discriminatory redlining, zoning and real estate practices, reveals clear constructions of racial spaces, which in turn impact the distribution of social goods (Cole and Foster, 2001).

Neoliberalism

Since the late 1970s, when the perpetrator perspective became dominant in the courts, there has been a shift in global economic thought towards a neoliberal agenda (Harvey, 2005). The state’s role under neoliberalism is simply to protect private property via the police and the military in order to ensure the proper functioning of a free market. To defend the ‘freedoms’ so exulted by neoliberal philosophy the state must withdraw from its traditional role in providing social provisions such as environmental regulation, protections against discrimination in employment, and social welfare programs. According to the neoliberalist view, it is only through this step away from providing social assistance that a true ‘colorblind’ free-market can flourish.

Neoliberalism, despite claims to being colorblind, is ‘saturated with race’ (Duggan, 2003: xvi) in that it conceals racial inequality and racism behind the free-market ideology of a merit-based system. The implication being that individual merit is valued above all else, including race. Race and neoliberalism are mutually constitutive and neoliberal discourse permits the circumvention of any consideration of institutionalized racism in favor of meritocracy and individual choice (Roberts and Mahtani, 2010). This relocation of racial disadvantage to the private sphere absolves the state of its responsibility to correct for or intervene when racial disparity is apparent, leaving race and racism muted (Davis, 2007). It is in this way that we are left with a society saturated with racism, but without racists (Bonilla-Silva, 2014). Under this regime any failure to succeed is attributed to personal flaws rather than structural barriers or institutionalized racism. All this has been done despite the fact that: ‘There is nothing in human history or human nature that supports the idea that sacrificing everything before the free market leads to a social good’ (Hedges and Sacco, 2012: xii). The power of neoliberalism to mute race by deflecting attention away from racism and onto the individual is important to the discussion here regarding environmental racism and injustice. If neoliberalism is in fact designed to concentrate wealth and power among the economic elite (Duménil and Lévy, 2004), who are predominantly white, then the poor and people of color face the brunt of negative fallout from those policies in particular.

Equal Protection under the Law

The 1954 Brown v. Topeka Board of Education case, ending legal protection for school segregation, is often heralded as the beginning of the end of racism in America. However, the reality of the decision making process in this case and the legal ramifications of the decision stand in opposition to this conclusion. Derrick Bell (1980, 2004) examines the Brown decision in terms of ‘interest convergence’. He argues that the Court’s decisions on occasion promote racial justice but not for a noble cause. He points out that in those cases the interests of whites happen to converge with those pursuing racial justice, as occurred in the Brown case. He argues that ending segregation provided the United States with international credibility at a time when anti-capitalist thought was gaining traction. Further, at home it pacified the black veterans of the Second World War who had fought for the values of equality and freedom only to return to hatred and segregation. And lastly, the decision would move the South forward, as segregation was an obstacle holding the region back from realizing its industrial potential. In the end, Bell finds that the Court, in service to the maintenance of capitalism, makes decisions that promote the economic and political health of the country and that sometimes the promotion of those interests aligns with issues of racial equality. In order to justify these decisions, the Court, under the guise of legal formalism, has developed standards and rhetoric that allow the side-stepping of racial equality when not in convergence with the needs of white elites.

In Alan Freeman’s (1995, 1998) work on antidiscrimination law he examines US Supreme Court decisions from 1954 up until 1989. He argues that through a series of legal decisions the promise of equality embodied by the 1954 Brown v. Topeka Board of Education ruling was never realized and, further, that promise was transformed by the civil rights cases of the 1980s which ‘enshrined the principle of “unequal but irrelevant”’ (1998: 284). Freeman explores this process and how the Court has shifted over time, often manipulating precedent, away from recognizing claims of racial discrimination based upon disparate impact to rejecting these same claims if they fail to prove individual racist intent. This shift has effectively rendered legal claims to racial discrimination virtually impossible to make. To understand this shift, Freeman offers what he calls the victim and perpetrator perspectives on legal decision-making.

The victim perspective recognizes that years of racial discrimination in education, housing, healthcare, politics, environmental protections, and employment have long-term effects that are in need of remedy. From this perspective historical experience must be factored into legal decision-making in order to best correct for past discrimination. Further, this perspective understands that racism does not go away simply because it is illegal, but rather it becomes more subtle and covert, yet ever-present. With this recognition a court using the victim perspective looks for disparate effects or outcomes of a particular law or policy as evidence of racial discrimination. Or as Charles Lawrence III writes: ‘the injury of racial inequality exists irrespective of the decisionmakers’ motives’ (1995: 236). In other words, if the oppressive condition exists before and after an antidiscrimination law is implemented then the law is ineffective and needs to be changed, regardless of whether or not it was designed to discriminate. Legal remedies from this perspective are more about deconstructing institutional mechanisms of racism as a social good rather than targeting racist actors.

On the other hand, the perpetrator perspective, ignoring the long-lasting effects of past discrimination, requires solid proof of individual racist intent for a discrimination claim to be valid. The perpetrator perspective is and has been the dominant approach used in our courts and politics since the 1970s. From this perspective a law or practice is discriminatory if and only if specific intent to discriminate is proven. This perspective adheres to the belief that racism and racial discrimination vanished with the passage of various anti-discrimination laws, particularly the Civil Rights Act of 1964. Such a view ignores systemic or institutional forms of racism, and focuses at the individual or interpersonal level (Bonilla-Silva, 2014; Haney López, 2000; Feagin, 2014; Feagin, 2013). According to this micro-view, if racism exists, it is the result of a few bad apples. Violations of antidiscrimination law, then, cannot be found in unequal outcomes or impacts, but only in the clearly provable racist actions of individual perpetrators (Roberts, 1991, 1997). In essence, ‘[T]he Court creates an imaginary world where discrimination does not exist unless it was consciously intended’ (Lawrence, 1995: 239).

Today, our courts have abandoned the promises of the victim perspective used in the late 1960s and have fully adopted the discriminatory purpose doctrine of the perpetrator perspective, as evidenced by our societal obsession with memos and emails that are capable of proving the racism and culpability of individuals. The shift in the courts from victim to perpetrator perspective aligns with the shift from Keynesian economic policies to neoliberal ones. This is not by accident. The focus on individual intent allows the courts to rule in ways considered pro-business in accordance with neoliberal values. In the end, insisting on intent to prove any and all discrimination claims does nothing to address the pernicious racism that pervades our institutions, regulatory agencies, and the urgency with which government detects and responds to crises in communities of color such as Flint, Michigan, and southwest Detroit. In the end, the interests of the people for which antidiscrimination law was created are co-opted by the powerful in the name of a so-called ‘colorblind’ justice system (Gotanda, 1995; Russell-Brown, 2001).

The court’s adherence to the perpetrator perspective leaves intact all of the institutionalized structures and practices of white domination under the guise of formal ‘colorblind’ equality (Lawrence, 1998). Accordingly, in today’s ‘post-racial’ colorblind society to take any note of race is not the place of law and is a violation of equal protection for all (Delgado and Stefancic, 2012). The Court justifies this position with a fierce adherence to the ideals of meritocracy, that individuals should not be judged based upon the color of their skin, but rather according to their ability (Gotanda, 1995). However, as Freeman (1995, 1998) notes, the Court did for a time dabble in the victim perspective and a color conscious understanding of the law, but then shifted to the ‘colorblind’ perpetrator perspective. Lawrence (1995) argues that this shift was due in large part to the recognition that the true pursuit of equality would require a redistribution of opportunity. It is here that the interests of whites and people of color no longer converged and racial justice was halted (Bell, 1980, 2004). The resistance to this redistribution manifested itself through mob violence, white flight, and anti-affirmative action rhetoric (Lawrence, 1998: 317).

Environmental Regulation

Government, both state and federal, have at various times made attempts to remedy issues of environmental injustice and racism. Michigan’s Department of Environmental Quality (MDEQ) is the state body in charge of environmental regulation, including early detection of health hazards. Over the years, like so many regulatory bodies, MDEQ has fallen victim to severe budget cuts due to neoliberal state policies aimed at reducing regulation in the name of free enterprise. According to a 2010 federal audit, MDEQ had been for years beset by budget cuts, staffing issues, and limited resources (Cadmus Group Inc., 2010). As a result of funding cuts and the expense of hiring and training new staff, old staff were shuffled around to fill vacancies, which the audit found ‘decreases the technical knowledge of staff’. While MDEQ is regularly in the news for its failures, it is important to note that the agency has over time been reduced by state policies so that it cannot function properly. To quote David Fasenfest and Theodore Pride (2016: 331): ‘Michigan has become the proving ground for neoliberal expansion and the taking of critically important social resources for private gain.’ When the state fails, the brunt of those environmental failures are born heavily and disproportionately by those who live in poor, working-class communities of color.

At the federal level attempts have been made to move towards environmental justice. One of the most discussed of these was President Bill Clinton’s 1994 Executive Order 12898 (EO 12898), which required all federal agencies to ‘make achieving environmental justice part of its mission’ (Clinton, 1994: section 1-101). EO 12898 was a considerable victory for many in the environmental justice community, but over time the victory proved hollow. EO 12898 was largely rhetorical, as it did not commit resources to its cause. Additionally, the order failed to create any system of accountability or standards of equity, while including limits on judicial review. Evaluations of the EPA and its actions in light of EO 12898 have found its implementation slow, inconsistent, and often nonexistent (NACA, 2001; EPA, 2004). These shortcomings are why scholars insist that the executive order was largely a symbolic political gesture (Cooper, 2001; Konisky, 2015).

While federal attention to environmental justice waned during the George W. Bush administration it was reinvigorated under President Barack Obama (Konisky, 2015). In fact, President Obama created a presidential proclamation celebrating the 20th anniversary of EO 12898, which expressed a renewed commitment by the federal government to environmental justice (White House, 2014). Despite this, it remains unclear if President Obama’s administrative efforts have made any improvements; the water crisis in Flint, Michigan, and the resultant failure of the EPA in its agency response does not bode well for federal efforts aimed at achieving their promise of environmental justice.

Michigan’s Sorry State of Affairs

In the following section two communities in Michigan are examined in order to highlight the consequences of reduced regulation in the name of free-market, colorblind, neoliberal governance on people of color in terms of environmental toxic exposure. First, the water crisis in Flint is used to explore the emergency financial manager law that made way for the toxic switch of the community water supply to the highly corrosive Flint River. Second, the situation for residents of the Jefferies subdivision of Boynton, Michigan, a neighborhood in southwest Detroit, who live in the shadow of Marathon Oil’s tar sands refinery, is examined. In this case the focus is placed on a home buyout project completed by the oil giant which bought the houses of white residents to help them relocate, but only a handful of black residents’ houses.

Flint, Michigan

Flint, a majority black city of about 100,000 residents, with some of the highest poverty rates in Michigan, had for years sourced its water from Lake Huron through the Detroit water system. In April 2014, it was decided under a state-appointed emergency financial manager in what was claimed to be a money-saving move (Clark, 2015) that the city would now source its water from the Flint River, a body of water so polluted it had corroded the city’s plumbing infrastructure, causing lead levels in drinking water to exceed the EPA’s standard of ‘toxic waste’ (Craven and Tynes, 2016). In an EPA memo sent in June 2015, lead levels in residential drinking water were as high as 13,200 parts per billion, an unthinkable 880 times the actionable federal level of 15 parts per billion (Craven and Tynes, 2016). Residents immediately complained about the smell and taste of the water coming from their faucets and E.coli and other contaminants were detected within three months of the switch (Fonger, 2014a). Despite repeated attempts by citizens-turned-activists, media members, and various agency officials to sound the alarm on the condition of the drinking water, local and state government continued to source the city’s water from the toxic Flint River.

Perhaps the most blatant example of a government instituted system of worthiness occurred within six months of the switch to the Flint River when General Motors (GM) ceased use of the toxic water. GM found that the high chloride levels in the Flint River water were corroding auto parts in their manufacturing plant (Fonger, 2014b). As a result the company reached an agreement with the city to purchase water from the Flint’s previous Lake Huron source. The neoliberal city government was quick to accommodate the business concerns of GM, but remained deaf to the pleas of their plebeian constituents for an additional year. As of January 2017, over two and a half years since the trouble started, Flint residents still cannot drink the water that comes from their faucets.

In recent years more attention has been paid to the dangers of lead exposure, especially among children. Lead, even at low levels, is a neurotoxin that impairs cognitive and behavioral functioning (Rogan and Ware, 2003; Bellinger et al., 1991) and has been linked to antisocial behavior (Needleman et al., 1996). Childhood exposures to lead have also been found to be disproportionately higher among blacks (Sampson and Winter, 2016). Sampson and Winter, using blood tests from children living in Chicago from 1995–2013 in combination with geographical block matching, find that the racial ecology of lead exposure is an overlooked but significant form of health inequality. They find that black and Hispanic neighborhoods showed extremely high rates of lead toxicity compared to white neighborhoods, and that blacks showed even higher levels than Hispanics for every year in the study. They argue that the situation in Flint is not unusual, and in fact reflects a form of biosocial stratification (Massey, 2004) that reinforces racial inequality.

In the aftermath of the initial Flint water tragedy the pursuit of justice has taken shape according to a perpetrator perspective in that the focus is on finding individuals to blame, rather than finding targeted remedies for the neoliberal colorblind, pro-business policies that promoted fiscal austerity, emergency financial managers, housing segregation, and environmental deregulation. In what many view as a victory, on 20 December 2016 four people were charged, two of Flint’s emergency managers and two city workers, with criminal conspiracy to violate safety. However, by celebrating the indictment of individuals an over-reliance on our punitive apparatus is created, which in turn perpetuates, rather than challenges, the free-market anti-regulation policies that led to the situation in the first place. So while these criminal charges may partially satisfy those in pursuit of justice or even vengeance, they also serve to distract people from the root causes of the crisis, leaving us destined to repeat these same tragedies in the future.

The hegemony of neoliberal thought tells us that rust-belt cities like Flint are unviable and in need of significant restructuring via fiscal austerity programs. Michigan has wholeheartedly adopted this approach. According to Minghine (2014) between 2003 and 2013 the state drastically cut funding to its municipalities. Flint, in particular, lost nearly $60 million of state funding via revenue sharing from sales tax, which had actually increased over that same time period. So while Michigan is pushing austerity measures and asking their cities to make do with nothing, they are balancing their own budgets with revenues generated by their municipalities. In return the state has been able to paint cities like Flint and Detroit as mismanaged and living beyond their means, again resorting to the neoliberal racially-coded language of individual choice and meritocracy. As a result, the appointment of emergency financial managers in majority black cities has been seen by many adhering to the neoliberal austerity narrative to be well deserved, rather than a racist truncation of democracy.

The history of emergency financial management (EFM) in Michigan began in 1988 with the passage of the state’s first financial distress law, which simply authorized the state to get involved with local governments in distress (Conyers Jr., 2016). But after decades of a suffering economy and the growing political tide of neoliberal privatization, the law was reconfigured. In 2011, Governor Rick Snyder and the Republican-controlled legislature passed a new law (PA-4), which significantly expanded the role of the state when dealing with municipal financial crises. The new law gave the state the power to renegotiate union contracts, change pension agreements, and sell private assets to pay municipal debts. The law was understood as government overreach and voters were able to repeal it in 2012. However, within a month the Governor and state legislature passed another emergency manager law (PA-436) – this one had a provision that it could not be repealed by the voters. While the history of emergency management is highly suspect, the application of the law is also worthy of investigation.

The emergency financial manager law circumvents democracy by introducing a leader with nearly universal decision-making powers who is only accountable to the white governor,¹ and who was never elected by the people. Further, the standards for becoming an EFM are appallingly low: ‘The emergency manager shall have a minimum of 5 years’ experience and demonstrable expertise in business, financial, or local or state budgetary matters’ (PA-436). Additionally, the EFM need not have any experience with the city in question and ‘shall serve at the pleasure of the governor’ (PA-436). These requirements speak to the neoliberal understanding that government is to be run like a business, while completely ignoring the need for a leader to be accountable to the community they aim to serve. In the case of Flint, the decision to switch water supply demonstrates the hegemony of pro-business neoliberal thinking which considers costs and savings above all else.

The EFM law is supposed to be ‘colorblind’ but nearly half of Michigan’s black population has lived in a city under emergency management (Fasenfest and Pride, 2016), while the same was true for only 2 percent of white Michiganders (Conyers, 2016). Emergency managers are most often assigned to cities with a majority African American population. However, the process of deciding which city is in need of a financial manager is supposed to be based upon neutral evaluations of financial circumstances, despite the fact that numerous majority white cities in similar financial straits have not been taken over (Welburn and Seamster, 2016). EFMs engage in cutback management tactics that do nothing to address the structural issues that lead to financial distress in the first place, which adversely impacts community residents, public employees, and retirees while protecting the interests of corporate investors and financial institutions (Fasenfest and Pride, 2016). Again we are confronted by glaring racially disparate impacts under a colorblind policy, which have no legal remedy under the discriminatory purpose doctrine. The disparate application of emergency financial management, including the consequences of such application, like the Flint water crisis, are clearly legible to those impacted as a government-backed system of race-based worthiness.

Jefferies Subdivision of Boynton, Michigan

Southwest Detroit is home to 10 major polluting factories including a tar sands oil refinery run by Marathon Oil and manufacturing giants AK and U.S. Steel. These factories spew literal tons of toxic chemicals into the air each year, yet they are for the most part considered in compliance with state and federal regulations. So while the plants remain in compliance, their zip code, 48217, has been found to be the most toxic in the state, with air pollutants such as manganese, sulfuric acid, nickel, lead, trimethylbenzene, and chromium (Mohai et al., 2011): pollutants that have been associated with increased risks of cancer, asthma, neurological disorders, cardiovascular disorders, and developmental disorders. The contradiction here, that these plants can be meeting emission standards yet are creating what amounts to toxic sludge for air, is explained by how Michigan’s Department of Environmental Quality (MDEQ) evaluates emissions. MDEQ considers plants in isolation rather than considering the cumulative effect of emissions from multiple locations, a policy that seems to go against their proclaimed goal of protecting human health but is in agreement with state pressure to be pro-business. The result is that residents of southwest Detroit experience daily some of the highest air pollution levels in the state (Schlanger, 2016; Mohai et al., 2011). This would be less concerning if nobody lived near this pollution, but thousands do, and they are overwhelmingly poor and black.

The zip code 48217 is home to two residential neighborhoods/census tracts, Boynton and Oakwood Heights. Boynton is a small community with a population of nearly 7000 as of the 2010 census. Boynton ranges between 92 and 94 percent black, 3–4 percent Hispanic, and less than 2 percent white. Oakwood Heights is adjacent to Boynton with a population of nearly 1300 people. Oakwood Heights is 90 percent white and Hispanic and only 7 percent black. Both neighborhoods are within the 48217 zip code, an area notorious for being the dirtiest zip code in all of Michigan, with pollution levels 45 times the state average (Oosting, 2010; Mohai et al., 2011). Further, according to Michigan’s Department of Public Health, the 48217 zip code has consistently high rates of cancer and mortality rates from cancer (Lewis, 2014). Both communities are exposed daily to extraordinary levels of pollutants, benzene in particular, a known human carcinogen. As such, one community is not more exposed than the other. Despite this, in 2008 Marathon Oil announced plans for a $2.2 billion expansion; part of this plan was to buy up homes in nearby Oakwood Heights to create a ‘100-acre green buffer zone’ (Abbey-Lambertz, 2012). This buffer zone included only 10 homes from the largely black Jefferies subdivision² of the Boynton neighborhood (Lynch, 2014). The media covered the plan, but barely touched on the glaring racialized aspects of the buyout.

The Jefferies subdivision is a small neighborhood located within the Boynton community, and immediately adjacent to the Marathon plant. Most of these residents remember a time when the Marathon plant was a small factory that posed minimal threat to their health and wellbeing. Many have inherited their homes from their parents, who bought the property during a time when Detroit, like many other places, was heavily engaged in redlining and restrictive housing covenants. However, over time Marathon has gotten repeated permission from the city of Detroit to expand their operation, despite objections from the Boynton community. It is these black residents whose living situation has greatly deteriorated as a result of the corporation’s expansion, and it is these black residents who have asked for and been denied home buyouts.

The buyout in Oakwood Heights, accepted by 266 of the 294 property owners, provided residents with a minimum purchase price of $50,000 per home and some relocation expenses (Lynch, 2014). So while the white residents of Oakwood Heights were able to have their homes purchased for tens of thousands above market value and move to areas with less toxic pollution, the nearly exclusively black residents of the Jefferies subdivision were left behind. Marathon has made no move to offer buyouts to these residents, stating the area qualifies for federal assistance under the Neighborhood Stabilization Program (NSP) for communities suffering from abandonment and foreclosures (Lynch, 2014). According to the US Department of Housing and Urban Development (HUD), the goal of NSP is to aid in the purchase of foreclosed homes as well as to help rehabilitate or redevelop homes in order to stabilize neighborhoods and slow declining property values. However, the mission of NSP is to target areas for reinvestment. Because Boynton has been labeled the most polluted zip code in Michigan, with unusually elevated rates of cancer and deaths from cancer, it is not a community with reinvestment potential (Oosting, 2010; Lewis, 2014).

Since 2005 more than one in three properties in Detroit has gone into foreclosure due to unpaid taxes or defaults on mortgages (Kurth and MacDonald, 2015). As a result the competition among neighborhoods seeking NSP funding is extremely high. According to the Michigan Foreclosure Task Force, the City of Detroit received $47.1 million in NSP funding and has had to engage in urban triage when distributing those funds. The city has identified target areas to try to revive with NSP funding; these are areas evaluated to have the greatest potential of bouncing back. Boynton, and the Jefferies subdivision in particular, due to the high rate of pollution and resultant illnesses, has been deemed unworthy of revival.³ So while Boynton property values were already low, Marathon’s expansion has decimated all remaining value to the point that the area is considered un-savable by the city of Detroit, with the estimated value of most homes at less than $15,000 and dropping steadily (Lewis, 2014) – a reality captured by the words of Emma Lockridge, a resident of the Jefferies subdivision and an environmental organizer: ‘I can’t even give my house away.’⁴

Marathon’s justification for excluding the majority black households of the Jefferies subdivision from the buyout, that they can get help elsewhere, allowed the corporation to easily circumvent racial discrimination claims from a perpetrator perspective. In effect Marathon has preempted any attempt by Jefferies residents to allege discrimination, by claiming their decision was made purely upon exit opportunities for each neighborhood rather than discrimination based upon race. Oakwood Heights, they claim, did not qualify for NSF funding while Jefferies subdivision did – a claim that could not be verified or disproved. Regardless of which neighborhood theoretically could apply for NSP, the reality was that Jefferies subdivision, due to its proximity to Marathon Oil and other manufacturing giants, will never receive NSP funds because of the dire need across all of Detroit coupled with the high levels of pollution in the area. Further, Marathon’s positioning of the Jefferies residents as having the opportunity for government assistance places blame squarely on the residents for not trying hard enough when the funds were not provided. In other words, failure to receive NSP funds indicates a failure among applicants rather than the reality of urban triage rooted in years of redlining and structural inequality. So even though the buyout disproportionately impacted black Detroiters, any claim of racial discrimination would not hold up in court without concrete evidence that someone in charge of the program designed it specifically to exclude blacks.

The failure of the legal system on both a state and federal level to recognize the injustice occurring in this instance is an indictment of all environmental protections aimed at environmental justice. It reveals the hollowness of EO 12898 and the various attempts over the years by the state of Michigan to make environmental justice a priority. Without possibility of legal redress based upon disparate impact, programs like the Marathon buyout will be allowed to continue unabated and all attempts to prioritize environmental justice will remain toothless. Further, neoliberal discourse that attributes the inability to get government funding to individual failings rather than the obstacles generated by systemic racism and destructive corporate behavior prevents the buyout and similar policies from ever being discussed in terms of race and racism.

Conclusions

Neoliberal colorblind policymaking has created an environment in which the interests of corporations, like General Motors and Marathon Oil, are considered more worthy of protection than the health and lives of Michigan residents, especially people of color who are disproportionately impacted by industrial pollution and environmental hazards statewide. Neoliberal discourse silences claims of systemic racism through reliance on the racially-coded narrative of individual choice and intent, while cutting funding to state regulatory agencies in the name of the free market. The repeated budget cuts to the MDEQ and the EPA, institutions initially designed to protect and promote human health, have left both agencies crippled beyond repair and incapable of participating in any form of effective regulation. After the failures of MDEQ and the EPA in the Flint water crisis and the Jefferies subdivision of Boynton, it is clear that what remains of the regulatory functions of each is in service to neoliberal pro-business ideals rather than human health. MDEQ and the EPA, through their complacency and impotence, serve to enforce and maintain a race-based system of worthiness in Michigan which places corporate business interests at the top and poor people of color at the bottom.

Contemporary American racial frames require the pursuit of individual actors on which to place blame for racism’s continued legacy. However, such views limit the pursuit of justice to punitive frameworks and reduce opportunities to pursue racial justice on a grander scale. By focusing only on perpetrator intent we make what should be treated as an institutional issue the fault of individuals, whose racial intents remain elusive. The process of seeking out individuals to blame for the situations in Flint or southwest Detroit provides only temporary satisfaction to victims and the public, while providing nothing in terms of substantive change. While increasingly we see social unrest in reaction to the neoliberal arenas of criminal justice, policing, and employment, we have not seen similar unrest regarding legal and administrative decision-making. We need to. Our courts and regulatory agencies need to be restructured, doing away with the illusion of legal formalism. Health opportunities and environmental protections must be redistributed so that no one group need carry the disproportionate burden of environmental toxic exposures. The state and federal governments must to do more than protect the conditions for capital accumulation; they must also protect the health and welfare of all its citizens, especially people of color. This cannot happen in our courtrooms and regulatory agencies as long as the discriminatory purpose doctrine stands. However, not even the poisoning of children has been able to bring about these changes, which highlights the limited utility these types of pursuits may have when considered through the lens of Derrick Bell’s (1980, 2004) concept of interest convergence.

With Bell’s interest convergence in mind, one additional way to provoke changes in legal and administrative decision-making may be to get the interests of whites to converge with those pursuing racial justice. Unfortunately, in terms of environmental equality this would in large part mean exposing more people, whites in particular, to lead and other environmental toxins at great enough levels to provoke action. The clearest arena that this type of interest convergence is happening in is in regard to gentrification. With the reinvigoration of cities nationwide, young, highly-educated, middle-class whites are moving back to the city and being confronted with the environmental toxic exposures of the urban core that communities of color have long been accustomed to. It is on this front that we need more research. How does gentrification shape environmental regulations and protections? Does gentrification create interest convergence on a level significant enough to promote change for all people, not just whites? And is there a way to invert this momentum to make it a tool of racial justice that can be more empowering than simply waiting for whites to care?

Footnotes

Acknowledgements

The author would like to recognize the organization Detroiters Working for Environmental Justice for helping her understand the environmental inequity occurring in Detroit, especially the Boynton neighborhood. In addition, she would like to thank Danielle Dirks and Aaron Roussell, who provided invaluable guidance throughout the writing process.

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

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