The Michigan Supreme Court’s recent ruling in Henry v. Dow allows a class action of pollution victims against Dow to move forward if the trial court finds that the proper class action standards have been met. The case involves a plume of dioxin contamination from Dow’s Midland facility that has polluted property throughout the Tittabawassee River watershed into Lake Huron. (For more on the case, see this article by Eartha Jane Melzer of the Michigan Messenger.)
The Great Lakes Environmental Law Center and numerous other environmental organizations filed an amici curiae brief urging the Michigan Supreme Court to allow the use of class actions in pollution cases – a result that was achieved in the court’s ruling. By a 4-3 vote, the Michigan Supreme Court upheld the use of class actions, even when the specific harm suffered from pollution varies. Because it was not clear if the plaintiffs had met the standard for certification in a class action, the Supreme Court remanded the case to the trial court for factual findings, although the plaintiffs’ attorneys are confident that the standard has been met.
The three dissenting justices would have made it more difficult to bring a class action under Michigan law. They would have held that the issue of damages could not have been properly certified under any circumstances in this type of case. Fortunately a majority of the court recognized the importance of class actions in obtaining justice for pollution victims, as a class action allows numerous people to band together when the costs of litigation for an individual would be prohibitive. Government regulations should protect people from pollution, but when that fails, it’s important to be able to hold polluters liable for the damage they have caused.