State high court set to reinterpret key environmental law

Will consider whether citizens can sue state over permitting decisions

Au Sable River photo courtesy larrysphatpage

The highly politicized Michigan Supreme Court is considering a case that has the potential to decide who can bring legal action to protect the environment and whether the state can be sued for issuing permits for activities that harm the environment. The court is also expected to rule on the extent of “riparian rights” — the property rights attached to waterfront parcels.

“The justices will be deciding the fate of Michigan’s water for generations to come,” said attorney Jim Olson.

Olson represents a group of anglers who sued the state for permitting Merit Energy to dispose of millions of gallons of oil field wastewater by means of a pipeline that would cross state land in order to discharge into a tributary of the Au Sable River.

Traditionally the owners of waterfront property have had the right to use and enjoy the water they abut, and could sell easements to allow people on neighboring parcels to access the water. Allowing waterfront property owners to sell easements to pollute or otherwise diminish a body of water, the anglers argue, will leave the state’s water resources vulnerable to many damaging uses, even exportation.

The Anglers, who own property near the Au Sable River or use it for fishing, filed suit against the state and Merit energy under the Michigan Environmental Protection Act, the state’s flagship 1970 environmental law that authorizes any person to file suit “for the protection of the air, water, and other natural resources … from pollution, impairment, or destruction.“

The Otsego county court agreed with the Anglers’ riparian rights claims and the MEPA claim, and ordered Merit not to discharge into the Au Sable river system.

Merit and the state appealed and the appeals court found that the state could not be sued under MEPA and that Merit did have riparian rights because of the easement from the state.

The Anglers appealed, arguing that anyone should have the right to sue the state over a damaging permit.

Early this year, in a move that was welcomed by environmentalists as a sign that the court was ready to consider reversing some of the most egregious anti-environment decisions made by the previous court’s business-friendly “Gang of Four” majority, the supreme court agreed to hear Anglers v. Merit Energy and MDNRE.

The court indicated that it was ready to reconsider its own highly controversial 2007 decision in Michigan Citizens for Water Conservation v. Nestle.

That case involved a citizens group (also represented by Jim Olson) that wanted to stop the Nestle corporation from harming the local watershed by withdrawing water for its Ice Mountain water bottling plant in Mecosta County.

In a 4-3 ruling that horrified environmental groups across the state, the court found that in order to sue under MEPA plaintiffs had to establish that they would be personally harmed by the environmental damage.

The court also asked for briefs on Preserve the Dunes Inc. v. Dept. of Environmental Quality, a 2004 appeals court decision that found that a group could not sue the state for issuing a permit that would cause damage to sand dunes.

Michigan Manufacturers Association filed a brief asking that the court uphold the lower court’s decision and not allow people to sue the state over permits that could lead to environmentally damaging actions.

“The Manufacturers’ position is that that when they have invested significant resources in complying with state statute,” attorney David Cassell said, “to allow a separate and collateral attack under MEPA makes for an uncertain business climate.”

During oral argument on Oct. 6 the political divisions on the court were clear.

“After years of work and tens of thousands of dollars raised by ordinary citizens to bring one of the most important issues facing us – water and environment – I was appalled that some of the justices, led by Justice Young, wanted to argue issues having nothing to do with environment and water and denied us a fair debate,” said Terry Swier of Michigan Citizens for Water Conservation.

Aware that the politics of the high court could play a role in the outcome of this case, MCWC and Anglers of the Au Sable held a little-noticed rally in Traverse City before the election in an effort to draw attention to what is at stake in the case.

The outcome of the election — the conservatives regained control of the court by reelecting Justice Young and adding Mary Beth Kelly to the bench — is seen as a poor omen for environmental law overall.

It’s not clear whether the court will issue an opinion in this case before the term ends and Republican Mary Beth Kelly replaces Democrat Alton Thomas Davis. Some observers have suggested that some justices may chose drag it out into the next term and then drop the case. The window for reversing the damage done in the Nestle case may be closing.

In the face of such uncertainty on the court Olson calls for more citizen involvement. “Citizens have the right to sue to protect the environment, but it is more than just filing lawsuits in the courts,” he said. “Citizens must insist on more public notice, more meaningful review of facts and environmental effects, and compliance with our environmental standards, and the duty of government, all levels, to prevent pollution, impairment, or destruction of our air, water, natural resources, and the public’s trust in those resources. Our constitution and MEPA declare this. It is law. Citizens should insist that it be followed.”