The following guest post is by Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center and director of Wayne Law’s Transnational Environmental Law Clinic.
On Wednesday November 9, 2011 the Michigan Supreme Court will hear oral argument in the case Michigan Department of Environmental Quality v. Township of Worth (S. Ct. Docket No. 141810). Worth Township is located in a picturesque region of Michigan on the shore of Lake Huron. A popular vacation destination, it is home to many small plots of land with cottages and homes along the Lake. The township developed without its own public sewerage system and residents installed their own private septic tanks. The existing system of private, individual septic tanks on small, dense plots of land is not sustainable, and many of the septic tanks are failing, contaminating Lake Huron with raw sewage discharges.
The Michigan Department of Environmental Quality (DEQ), in an attempt to resolve the issue, has been working with Worth Township for several years. In 2004, the township signed a district compliance agreement with the DEQ in which it agreed to construct a public sewerage system. After the township failed to uphold this agreement, DEQ sued the township in Circuit Court, requesting injunctive relief to force the township to construct the sewerage system. The Circuit Court held in favor of the DEQ, the township appealed and the Court of Appeals held in favor of the township, and the DEQ was granted leave to the Michigan Supreme Court.
The Great Lakes Environmental Law Center has filed an amicus curiae brief in support of the DEQ’s position. We argue that, under the Natural Resources and Environmental Protection Act (NREPA), (1) Worth Township is responsible for the widespread failure of the private septic systems within its borders; (2) the DEQ has authority to order Worth Township to install a sewer system; and (3) the Circuit Court has authority to enforce the order.
Part 31 of NREPA prohibits the discharge of injurious substances into state waters. Discharge of raw human sewage is prima facie evidence of a Part 31 violation by the municipality where the discharge originated. The septic systems within Worth Township’s borders are failing, causing sewage to discharge into Lake Huron. Therefore, the township is responsible for the discharge under NREPA. MCL 324.3109(2) creates a presumption that a municipality violates NREPA if raw sewage is discharged into state waters within municipal boundaries, even if the municipality does not directly own or operate the sewerage system. The Court of Appeals incorrectly applied this presumption as to whether the municipality owns or operates the source of the discharge.
Part 31 also grants the DEQ broad authority to “take all appropriate steps to prevent any pollution [it] considers to be unreasonable and against public interest in…any…waters of the state.” This authority includes the power to issue orders. The 2004 agreement between DEQ and Worth Township constitutes such an order.
Furthermore, the Circuit Court has injunctive authority to enforce the DEQ’s order. NREPA explicitly grants that authority. MCL 324.3115 states that the DEQ “may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation… or order issued[.]” Independently of NREPA, Michigan courts also have the power to force local governments to construct a public sewerage system. In People ex rel Stream Control Comm’n v. Port Huron, 9 N.W.2d 41 (1943), the Michigan Supreme Court held that it had common law injunctive authority to force the City of Port Huron to comply with a Department of Health order construct a public sewerage system.
As our amicus curiae brief demonstrates, Worth Township is responsible for the sewage discharge under NREPA, the DEQ has authority to order the township to construct a public sewerage system, and the Circuit Court has authority to compel enforcement with such an order. Special thanks to Wayne Law student Matthew Clark who worked on this project through the Transnational Environmental Law Clinic.
Update: In May 2012, the Michigan Supreme Court decided the case in favor of the DEQ. The court’s opinion sides with the amicus brief filed by the Great Lakes Environmental Law Center:
“We conclude that under NREPA, a municipality can be held responsible for, and required to prevent, the discharge when the raw sewage originates within its borders, even when the raw sewage is discharged by a private party and not directly discharged by the municipality itself.”
It’s a great outcome for protecting freshwater in Michigan and a nice legal victory for the DEQ and Great Lakes Environmental Law Center.