After Elections, Court Vacates Prior Decision to Protect AuSable Watershed

Justice Davis’s original December 2010 opinion in this case restored the ability of  citizens to sue to prevent environmental harm that would result from the issuance of a permit, overturning an earlier case which had denied citizens that ability. The Michigan Supreme Court had, until Preserve the Dunes, upheld the right of citizens to challenge a permit under the Michigan Environmental Protection Act (MEPA) on multiple occasions. Justice Davis’s opinion also held that cleaning up one watershed by contaminating another was a manifestly unreasonable use of water.

Unfortunately, this ruling in Anglers of the AuSable was vacated in 2011 when the Court, comprised of a new majority after the 2010 elections, reconsidered the case on rehearing and vacated its decision, adopting the dissenting opinion described below. The Court held that the case was moot because Merit Energy had abandoned its plans, even though the Court had already considered that issue before the 2010 decision. Justices Brian Zahra and Mary Beth Kelly, who concurred in the vacating order, are rated here as well.

Please remember that rulings in environmental cases are often based on non-environmental factors. The University of Michigan Law School did not participate in the rating process and takes no position regarding support or opposition for any judicial candidates.

The Merit Energy Company proposed discharging partially-contaminated water from the Manistee River watershed into the unpolluted AuSable River watershed as part of its efforts to clean up polluted groundwater. The polluted water contained several contaminants, including benzene, and had already polluted several residential drinking wells. The Department of Environmental Quality approved of a plan that would allow Merit to discharge polluted water into Kolke Creek, and granted Merit an “easement” through state-owned land that would allow Merit to construct a pipe to reach the creek.

Landowners and a group of anglers brought a suit to try to stop the plan. The trial court determined that the plan was “unreasonable,” and held that the proposed discharge and DEQ’s decision to permit the discharge both violated the Michigan Environmental Protection Act (MEPA). The Court of Appeals agreed that the plan was unreasonable. However, it did not think that the DEQ could be sued under MEPA for issuing this permit, because the act of issuing the permit would not in itself harm the environment.

The Merit Energy Company proposed discharging partially-contaminated water from the Manistee River watershed into the unpolluted AuSable River watershed as part of its efforts to clean up polluted groundwater. The polluted water contained several contaminants, including benzene, and had already polluted several residential drinking wells. The Department of Environmental Quality approved of a plan that would allow Merit to discharge polluted water into Kolke Creek, and granted Merit an “easement” through state-owned land that would allow Merit to construct a pipe to reach the creek.

Landowners and a group of anglers brought a suit to try to stop the plan. The trial court determined that the plan was “unreasonable,” and held that the proposed discharge and DEQ’s decision to permit the discharge both violated MEPA. The Court of Appeals agreed that the plan was unreasonable. However, it did not think that the DEQ could be sued under MEPA for issuing this permit, because the act of issuing the permit would not in itself harm the environment.

Did the Merit Energy Company’s plan to discharge contaminated water from an environmental cleanup site in the Manistee River watershed into a previously unpolluted site in the Manistee River watershed violate the Michigan Environmental Protection Act (MEPA)?

Can the Michigan Department of Environmental Quality (DEQ) be sued under MEPA for authorizing an activity that will allegedly harm the environment?

The majority (Justice Davis, joined by Justices Cavanagh and Hathaway) decided Merit Energy’s plan to decontaminate one watershed by contaminating another was not at all “reasonable.” The majority reached this decision by applying the “reasonable use” test from Michigan Citizens for Water Conservation v. Nestle Waters North America, Inc. The “reasonable use” doctrine says that people who own property adjacent to waterways may make any and all reasonable uses of the water, as long as they do not unreasonably interfere with other waterside owners’ opportunity for reasonable use. The purpose of this doctrine is to ensure the greatest possible access to water resources for all users while protecting certain traditional uses.

The majority also held that the DEQ could be sued under MEPA for issuing a permit for an activity that has the potential to cause environmental harm. It thus overturned Preserve the Dunes (in which the Court had held that DEQ could not be sued for issuing a permit under MEPA because the act of issuing a permit did not in itself harm the environment). Without a permit from the DEQ, the harmful activity could not take place, so it did not make sense to say that the DEQ’s actions were not sufficiently related to the potential environmental harm. The majority noted that the Michigan Legislature intended for MEPA to be used to prevent conduct that is likely to harm the environment. This intent would be frustrated if the DEQ was immune from suit when it allowed potentially harmful projects to go forward.

Chief Justice Kelly wrote a separate concurring opinion. She agreed with the majority that Merit Energy’s plan was unreasonable and that the DEQ could be sued under MEPA. She also agreed that Preserve the Dunes was wrongly decided, but thought that the majority opinion did not spend enough time weighing the arguments for and against overturning a prior decision. She thought that courts should be bound by their prior decisions unless there is a compelling justification to abandon them. However, she ultimately decided that there was a compelling justification to overturn Preserve the Dunes in this case.

Justice Young, joined by Justices Corrigan and Markman, dissented. He thought that the Supreme Court should have dismissed the case because Merit Energy had already abandoned its plan to discharge into Kolke Creek after the suit was filed and before the case reached the Court. Justice Young therefore thought the issue was moot, because there would be no harm to the environment regardless of what the Court decided.

Justice Young also disagreed with the Court’s decision that discharging contaminated water was automatically unreasonable under MEPA. He thought that the Court should have required the landowners and anglers association to show that the contaminated discharge would in fact harm the AuSable watershed. He thought that the Court’s opinion, if applied broadly, could give waterside property owners the ability to block municipal sewage treatment programs and agricultural water uses. As a result, the Court’s new rule might prevent activities that do not actually harm watersheds and that benefit the community at large.

Further, Justice Young disagreed with the decision to overturn Preserve the Dunes, which he thought the Court had rightly decided. Like Chief Justice Kelly, he thought the majority was too quick to overturn a previous case. However, unlike Chief Justice Kelly, Justice Young was not convinced that the act of issuing a permit in itself violates MEPA, so he saw no good reason to overturn Preserve the Dunes.