Court: As long as city checks the right boxes, it’s OK to add pollution to an already polluted neighborhood

A Minnesota Court of Appeals Judge issued a ruling today which may have followed the letter of law, but it defies a common sense understanding of fairness.

The East Phillips Neighborhood Institute (EPNI) has tried to block the city of Minneapolis from expanding its Public Works yard onto what is known as the Roof Depot site, which would add more car exhaust and diesel pollution to already polluted neighborhood.

The court’s decision also precludes EPNI (for now) from its plans to improve and strengthen the neighborhood by redeveloping the Roof Depot site in a community-owned asset: a mixed use development with an urban farm, affordable housing, and a solar array.

The decision by Minnesota Court of Appeals Judge Jennifer Frisch is: Yes, your neighborhood already is polluted, but the city followed the process to add more pollution.

She wrote:

The East Phillips neighborhood—a community primarily comprised of individuals who identify as people of color—has been disproportionately affected by pollution. Historical contamination at the project site includes pollution from petroleum compounds, volatile organic compounds, metals (including arsenic), asbestos, debris contamination in the soil, and groundwater contaminated with petroleum compounds and metals. The unique vulnerability of the East Phillips neighborhood for further impact from pollution led to the Minnesota Pollution Control Agency (MPCA) to recognize it as an area of environmental justice concern, and it has been included in the city’s designated Southside Green Zone.

Judge Frisch

Then the judge justifies why the city can move forward with its Public Works expansion.

1. The City thought really hard about it before deciding to add more pollution to East Phillips.

“When reviewing agency action, we determine whether the agency has taken a ‘hard look’ at the problems involved, and whether it has ‘genuinely engaged in reasoned decision-making,’” she wrote.

City Councilmembers had raised and debated the racial and environmental aspects of the city’s proposal.

The courts will side with the government’s decision unless “they reflect an error of law, the findings are arbitrary and capricious, or the findings are unsupported by substantial evidence,” the decision said.

Comment: Apparently the city’s decision to break its environmental justice promises isn’t considered “capricious” (or unpredictable) but business as usual.

2. The record contains no evidence of actual bias by the city.

The judge concluded that the city didn’t show bias in conducting its environmental assessment worksheet (EAW), as EPNI alleged. At least how the law defines “bias.”

For instance, EPNI argued the city had already started moving forward on the Public Works expansion project before preparing the EAW, which shows bias.

The judge said the Minneapolis Department of Community Planning and Economic Development did the EAW for the Minneapolis Department of Public Works’s project. The law says that’s sufficient separation.

EPNI argued the city was biased because it had a financial interest in the outcome of the EAW.

The judge wrote that based on case law, “a city’s interest in the benefits of a project does not necessarily constitute bias or prejudice.”

3. The city’s EAW was accurate and complete.

EPNI argued the EAW failed to evaluate the project’s health effects in the East Phillips neighborhood.

The judge disagreed, saying the EAW had “a complete air-assessment study.”

The EAW required the city to assess air quality impacts from “stationary source emissions.” It accounted for such things as emissions from natural gas boilers and fuel tank vents, but not from vehicle traffic.

The city’s EAW said the project didn’t add enough pollution to require a state air quality permit.

It addressed traffic-related air pollution in separately.

The EAW said:

Considering that current traffic levels along Hiawatha Avenue of 32,000 average annual vehicle trips per day, the increase in
traffic from the project represents less than a 1% increase to the overall traffic in the area. Based on current, and projected traffic levels along Hiawatha Avenue, the increase in traffic levels generated by the project are considered minimal and will not significantly affect mobile source air emissions at the Site.


The judge concluded: “the city did not entirely fail to address the potential impact of air quality on human health.”

The reasoning seems to be that there’s so much air pollution from Hiawatha Avenue already that it’s OK to add more pollution because it won’t make that much of a difference.

Stepping back from legal details, the question is, “Is it fair to put more pollution onto an already polluted neighborhood where residents are disproportionately poor and BIPOC?”

The answer is no.

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