Just before the end of the calendar year, the Michigan Supreme Court has issued a sharply divided decision in Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company. The majority’s decision is a huge legal victory for Anglers of the AuSable and other environmental groups on several very important state law issues. However, the decision was authored by Justice Alton Davis, a Democrat who was not reelected last month, when Republican-nominated candidates and Justices won all open seats on the Michigan Supreme Court. Thus, the decision comes right before a major change in the Court’s balance and composition as a result of the 2010 elections, and with the dissenting justices set to regain the majority next week, it’s not clear how lasting the Anglers of the AuSable victory will prove to be for environmentalists.
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. For more background on the case (including all briefs), see my previous post from September 28, 2010.
The case presented the Michigan Supreme Court with several fundamental legal issues. 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 allow such pollution by granting permits. However, the ability of citizens to enforce MEPA in the courts and against the state was limited by several Supreme Court decisions in the past decade.
First, 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. As I predicted in my September post, in its Anglers of the AuSable decision, the Court expressly overruled Preserve the Dunes and held that state agencies can be sued in court under MEPA and held accountable for pollution that will result from issuing permits. Chief Justice Kelly, who dissented in Preserve the Dunes and joined the Anglers of the AuSable majority in overruling that prior decision, wrote a separate concurrence to justify the decision under the doctrine of stare decisis.
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, as I predicted in September, the Court in Anglers of the AuSable overruled the restrictive standing test used in Michigan Citizens for Water Conservation and instead relied on its 2010 decision in Lansing Schools Education Association v Lansing Board of Education to apply MEPA’s express statutory language and allow any citizen to bring suit under the law.
In addition to the MEPA issues, the Michigan Supreme Court was also faced with several legal issues under Michigan riparian water law. Most significantly, the Court was asked to rule on the appropriate legal test for discharge of polluted water and whether Merit’s proposed diversion of contaminated water from the Manistee River watershed into Kolke Creek and the AuSable River watershed was lawful. The Court declined to clarify the relevant legal test, instead offering a simple and conclusory opinion that Merit’s discharge, in these circumstances, is “manifestly unreasonable”:
While the parties agree that the reasonableness of the water’s use is the determining factor in deciding water-use cases, they do not agree on using the “reasonable use balancing test” from Nestlé. We do not pass judgment on that test in this case because, under any test and by any standard, the discharge plan at issue is manifestly unreasonable.
The Court continued:
Defendants have presented no authority for the proposition that the diversion of contaminated water from one source to an uncontaminated watershed should be considered reasonable. It would be incongruous to hold that it is reasonable to decontaminate water by contaminating different water.
This broad holding against diverting water was tempered in several accompanying footnotes (16 and 17), stating:
We do not hold that diverting water from one watershed to another is ipso facto unreasonable. Our concern today is with the discharge of contaminated water into an uncontaminated watershed. ... In reaching this decision, it is important to note that we focus our ruling on the reasonableness of using Kolke Creek as a discharge point for contaminated water removed from a separate watershed. We are not basing this decision on Merit’s status as a riparian or groundwater user. We are not basing this decision on Merit’s status as an off-tract or on-tract water user. And we are not basing this decision on the fact that Merit is seeking to divert water out of the Manistee River watershed.
A final water law issue, whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy), was avoided by the Court because it was not “outcome-determinative” according to the majority.
Three Justices (out of seven) dissented from the majority opinion. Justice Young (who is expected to command a new majority after the November election and be elected Chief Justice next week) authored the dissent disagreeing with the majority on every issue. Justice Young’s dissent concluded:
This case is moot. Not only has Merit voluntarily abandoned the easement that granted it physical access to Kolke Creek, the circuit court has also vacated the underlying DEQ permit that would have allowed it to make its proposed discharge. Accordingly, any substantive decision that this Court renders only affects the parties in the abstract. This Court has long stated that it is not a constitutional exercise of the judicial power to decide abstract cases. Therefore, I vehemently dissent from this Court’s decision to render a substantive ruling in this case.
Furthermore, I strongly dissent from the lead opinion’s unnecessarily disruptive disposition of the substantive issues in this case. The lead opinion fashions out of whole cloth a categorical rule that “contaminated” water originating from one watershed can never be discharged into watercourses in another watershed because such a discharge inherently violates the riparian rights of landowners at the point of discharge. This decision has no basis in Michigan’s well-established water law, under which the touchstone of “reasonableness” has served the citizens of this state, including these riparian plaintiffs, very well. Finally, the lead and concurring opinions’ claim that Preserve the Dunes was wrongly decided is inconsistent with the plain language of MEPA and will wreak havoc on this state’s legal system.
In short, the lead opinion’s palpably erroneous decision and the concurring justices’ acquiescence in the result of that decision are affronts to the rule of law and reflect the majority’s unseemly haste to render a decision in this case before the end of calendar year 2010. The decision this Court renders today is a prime example of the naked exercise of power without constitutional warrant. While there may be some who will welcome today’s result, they should fear a judiciary that is willing to bend the law to accomplish its will. Those who support it may live to see this decision further undermine the state’s fragile economy.
My personal take (full disclaimer – the Great Lakes Environmental Law Center was involved in the litigation and filed an amicus brief with the National Wildlife Federation) is that the MEPA issues were correctly decided, most importantly restoring citizen standing based on the legislature’s express statutory language. I’m sympathetic to the ultimate outcome regarding the discharge of polluted water from another watershed, but the majority offered a very short and unsatisfying analysis of the underlying legal principles and issues and did little to clarify this area of law. I agree with Justice Young that the majority’s new rule on discharge of polluted water warranted far more explanation and citation of precedent.
Regardless of the politics and legal details of the opinion, the decision is a huge victory for Anglers of the AuSable and a fitting final tribute to Rusty Gates who founded the organization and presided over it until he died at age 54 last December. Thousands of fly fishermen loved Rusty and his Gates Au Sable Lodge in Grayling. Rusty was a conservation champion, and his efforts to protect the AuSable River were equaled only by his fishing knowledge and enthusiasm for the sport.
Update: More coverage of the decision by the AP's Ed White in the Chicago Tribune.