Biden's EPA ends appeal, cementing DTE Energy-Sierra Club settlement

Leonard N. Fleming
The Detroit News

The Biden administration said this week it will not appeal a Detroit federal judge's ruling that upholds a settlement between the Sierra Club and DTE Energy over how the utility giant violated the Clean Air Act.

The U.S. Environmental Protection Agency said in a news release that it agreed with the "Court’s factual conclusion that the settlement accomplishes an enormous environmental benefit that is fully consistent with the goals of the Clean Air Act."

“EPA supports citizen enforcement and we appreciate Sierra Club’s cooperation with the United States throughout this litigation,” said Larry Starfield, the acting assistant administrator for EPA’s Office of Enforcement and Compliance Assurance.

The Trump administration had tried to stop the Sierra Club-DTE agreement, but the move was rejected by Detroit U.S. District Court Bernard Friedman. The court stated that it lacked jurisdiction over Sierra Club’s and DTE’s settlement. Friedman also found that the private agreement "does nothing to interfere with the consent decree," but that it achieves "an enormous environmental benefit that is fully consistent with the goals" of the Clean Air Act.

DTE Energy's coal-fired electricity generating power plant in Monroe.

Sierra Club officials lauded the EPA's decision to back the agreement.

"This is a crucial decision from the Biden-Harris EPA, protecting our historic settlement agreement with DTE, and delivering cleaner air to Michigan’s most disproportionately polluted communities,” said Mike Berkowitz, the Beyond Coal Campaign representative with the Sierra Club.

"Scientists confirmed that exposure to air pollution from coal plants decreases the chance of survival once contracting the coronavirus, exacerbating the already dire threats facing communities in environmental injustice hot spots," Berkowitz said. "Amidst the COVID-19 pandemic, the administration's decision couldn’t have come at a more crucial time for Michigan communities."

In a statement, DTE Energy said it was "Pleased with the earlier circuit court's decision" and concurred with the Biden administration.

"We look forward to honoring our agreement with Sierra Club to start meaningful, environmental projects in the River Rouge and neighboring communities," DTE Energy said in a statement. "With a completion goal no later than June 30, 2023, DTE will fund and/or implement one or more of the projects recommended by a Committee it will be forming. We will spend no less than $2 million on this endeavor."

The dispute arose from a Clean Air Act enforcement action brought by the Obama administration's EPA in 2010 against DTE. The government alleged DTE violated the Clean Air Act by carrying out major modifications at Unit 2 of its Monroe Power Plant without obtaining permits, installing the requisite pollution-reducing technologies or achieving the 'lowest achievable emissions rate,'" according to the court filing.

Shannon Fisk, a managing attorney at Earthjustice, a nonprofit environmental law group, said the group is heartened to see the Biden administration "Make the right call here and not continue the previous administration’s misguided challenge to the agreement between Sierra Club and DTE.

"The ability of front-line communities to fully pursue the rights and protections promised by the federal Clean Air Act is critical to advancing environmental justice, and EPA’s decision enables us to now focus fully on ensuring that the agreement with DTE brings meaningful relief to the River Rouge, Ecorse and 48217 communities,” Fisk said.

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