Next week, the Michigan Supreme Court will hold oral arguments in the case Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company. The case has received little attention (update: a notable exception is the great coverage of the case by Sandra Svoboda of Metro Times), but will likely have significant implications for environmental and water law in Michigan. The case involves a dispute over a deal Merit Energy reached with the state to remediate groundwater contamination and discharge over one million gallons per day of water (which originates in the Manistee River watershed) into Kolke Creek and the AuSable River watershed.
The Michigan Supreme Court is hearing the case to address several fundamental legal issues under Michigan law. The first two issues concern the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), which expressly provides that “any person” may bring a court action for “the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” (MCL 324.1701)
Citizens and environmental groups historically had used MEPA to bring suit against private parties for their pollution and against state agencies when they permit such pollution. However, the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) cast doubt on the ability of citizens to bring a MEPA suit against the state for permitting pollution by private parties. Given the make-up of the current court (Chief Justice Kelly, who dissented in Preserve the Dunes, is now in the majority on most issues before the court), I expect that the Michigan Supreme Court will either overrule Preserve the Dunes or narrow the decision to its unique facts, and once again allow citizens to hold state agencies accountable under MEPA when the agencies permit pollution, impairment, and destruction of Michigan’s environment.
The second MEPA issue involves the “standing” of citizens to have their cases heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447), adopted a far more restrictive test based on federal standing jurisprudence. Under the 2007 ruling, a citizen seeking to bring a MEPA claim was required to establish that “he has suffered or will imminently suffer a concrete and particularized injury in fact.” Again, with the changed make-up of the court (the dissenting justices in Michigan Citizens for Water Conservation now command a majority on the court), it was widely expected that the current court would overrule the restrictive standing requirement and allow “any person” to bring a MEPA suit (as the legislature expressly provided). As it turned out, the court did just that in its decision early this summer in Lansing Schools Education Association v Lansing Board of Education, expressly overruling the prior restrictive standing test and opening the court doors to any plaintiffs with a cause of action. Given the Lansing Schools decision, it is almost certain the court will once again allow “any person” to file a MEPA claim in court.
In addition to the MEPA issues, the Michigan Supreme Court will also use the case to clarify several related issues under Michigan riparian water law. First, the court will determine whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy). Second, the court will determine if discharge of water, including pollution, is permissible under riparian law. Finally, if such actions are permissible under riparian law, the court will determine whether the desired activities are given the benefit of a “reasonable use balancing test” in which their benefits are compared to their harms. Predicting how the court will rule on these issues is a bit tougher than predicting the outcome of the MEPA issues. I expect the fundamental “reasonable use” approach to be upheld, but not for harmful “pollution.” How the court will rule on conveyance of riparian rights by easement is a toss-up, and could go either way.
The Great Lakes Environmental Law Center and National Wildlife Federation filed a superb and comprehensive amicus brief that provides a sound approach for the court to use in addressing these complex environmental and water law issues. (Great work by Sara Gosman of NWF, Nick Schroeck of GLELC, and the students of the Wayne Environmental Law Clinic.) Here are links to all of the briefs filed; oral argument is scheduled for Wednesday October 6:
- Brief of Plaintiffs-Appellants Anglers of the AuSable, Inc., Mayer Family Investments, LLC, and Nancy A. Forcier Trust
- Reply Brief of Plaintiffs-Appellants Anglers of the AuSable, Inc., Mayer Family Investments, LLC, and Nancy A. Forcier Trust
- Brief of Defendant-Appellee Department of Natural Resources and Environment
- Brief of Defendant-Appellee Merit Energy Company
- Brief of Amici National Wildlife Federation and Great Lakes Environmental Law Center
- Brief of Amicus Michigan Council of Trout Unlimited
- Brief of Amicus Preserve the Dunes, Inc.
- Brief of Amicus Michigan Manufacturers Association
- Brief of Amicus Michigan Environmental Council
- Brief of Amicus Michigan Citizens for Water Conservation