In a sharply divided opinion, the Michigan Supreme Court today vacated its prior decision in Anglers of the AuSable v Michigan Department of Environmental Quality and Merit Energy Company (793 NW2d 596). The original decision was released in December 2010 and was a huge victory for environmentalists. It opened the door to citizen suits against the state under the Michigan Environmental Protection Act and held that diverting contaminated water from one river to another is unlawful.
However, the December 2010 decision was authored by then-Justice Alton Davis, who had already lost the November election and was essentially a lame duck for the liberal majority before the new justices took their seats. At the time, many observers (myself included) expected the decision to be vacated once the new majority took over, which is exactly what happened. (See this previous post for more info on the now-vacated December 2010 decision.)
By a 4-3 vote, the new conservative majority led by Chief Justice Young vacated the Supreme Court’s December 2010 decision and the court of appeals decision from 2009 (770 NW2d 359). As detailed in its opinion, the Court reasoned that the case was clearly moot, since the defendant Merit Energy gave up on the proposal and no longer sought to discharge the pollution at issue. This view is consistent with the dissent of then-Justice (now Chief Justice) Young in the December 2010 decision. As is typical for the Michigan Supreme Court, the opinion includes a harsh dissent (written by the liberal minority) and several concurring opinions, each accusing the other of hypocrisy and inconsistency in respecting precedent.
After getting through the divisive court politics and arguments over mootness, the bottom line is that the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) is now restored, after having been overruled in the December 2010 decision. Preserve the Dunes cast doubt on the ability of citizens to bring a Michigan Environmental Protection Act (MEPA) suit against the state for permitting pollution by private parties, and now that uncertainty remains.
The December 2010 decision was also a big win for environmentalists on the issue of standing, which gives a party the right to have its claims 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 for citizens. This precedent was overruled by the December 2010 Anglers of the AuSable decision, which is now vacated. Confused? Don’t worry about it – the issue of standing in Michigan courts was conclusively addressed in the Supreme Court’s 2010 decision in Lansing Schools Education Association v Lansing Board of Education (792 NW2d 686), which also overruled Michigan Citizens for Water Conservation. So vacating the Anglers of the AuSable decision will not reverse the environmentalists’ victory on standing.
My take is that Chief Justice Young was probably correct to raise mootness as a concern last year, and perhaps the appeal should never have been heard. On the other hand, there is still considerable uncertainty about the scope and implications of the Preserve the Dunes decision, leaving citizens unsure of their legal options to challenge state permitted pollution. One way or another, attorneys, businesses, and citizens in Michigan need clarification and certainty in this area of law. Instead, we got another politically divided opinion that may only last until the next election.