Sand Dune Erosion Can Be Environmental Harm

This case examines whether violation of a soil erosion statute could be used to establish a violation of the Michigan Environmental Protection Act (MEPA). The justices unanimously held that it could, recognizing that sand dunes are natural resources and that their erosion causes environmental harm to vegetation and water through sedimentation and runoff. This ruling allowed plaintiffs suing to prevent environmental harm to shift the burden of proof to the defendant once they could show violation of a separate pollution control law.

The Court also had to determine whether attorney’s fees were allowed under MEPA, but found that the legislature had not provided for them. Though attorney’s fees are not generally considered “costs,” in denying them, the Court may have frustrated the intent of MEPA to provide broad access for Michigan citizens to protect the environment. MEPA cases are often very time intensive and pursued to obtain non-monetary goals such as an injunction. By denying attorney’s fees, the Court limited the ability of citizens without significant finances to protect the environment through MEPA.

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 Court was asked to decide whether a plaintiff can show that a defendant has violated the Michigan Environmental Protection Act (MEPA) by showing that the defendant has violated provisions of a law regulating soil erosion. The Court held that this was an appropriate standard in this case, and also affirmed that a trial court has discretionary authority to determine the appropriate standard for evaluating MEPA violations. However, the Court also held that MEPA does not permit trial courts to make the losing side pay the winning side’s attorneys’ fees in MEPA suits.

In 1990, Abonmarche Development, Inc. began construction of a marina, condominium, and hotel project at the mouth of the Manistee River on the shore of Lake Michigan. They removed the vegetation and topsoil from thirty acres of barrier dunes and moved thousands of cubic yards of earth into piles at the edge of the construction site. In December of 1990, a storm blew sand, snow, ash, and other sediments from the construction site to the surrounding area, burying nearby parcels in drifts that were several feet deep.

A group of residents sued under the Michigan Environmental Protection Act (MEPA) to stop Abonmarche and the City of Manistee from continuing to excavate and move soil in the project area. MEPA requires plaintiffs to show that a defendant’s conduct has “polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources.” In this case, the plaintiffs argued that the developers’ violations of the Soil Erosion and Sedimentation Act (SESCA) satisfied this requirement.

The trial court agreed. It found that the defendants’ act of stripping vegetation from the project site and failure to take proper soil erosion control measures in the past contributed to the damage from the storm, and the defendants delay in putting in mulch and grass to control erosion after the storm made these measures ineffective and insufficient to meet the requirements of the SESCA. It therefore stopped defendants from doing further construction work until they secured proper soil erosion control permits. The trial court also decided that plaintiffs had established that they were likely to prevail on their MEPA claim, and awarded attorneys’ fees and costs to the plaintiffs.

First, can a plaintiff establish that a defendant has violated the Michigan Environmental Protection Act by showing that the defendant violated the Soil Erosion and Sedimentation Control Act?

Second, does the language in MEPA that allows courts to apportion costs to the parties “if the interests of justice require” permit the trial judge to require the defendants to pay plaintiffs’ attorneys’ fees?

Issue #1: The Court (Justices Brickley, Mallett, Boyle, Taylor, Cavanagh, and Kelly) held that when a statute is intended to protect natural resources or prevent pollution and environmental degradation, violation of its terms can establish a prima facie case under MEPA if the trial judge decides that it is an appropriate pollution control standard based on the facts of the case. In other words, if the plaintiff can show that the defendant has violated the statute, the defendant has to present evidence that there was no violation to avoid losing the MEPA suit. The Court upheld the trial court’s determination that the defendants had violated SESCA by failing to implement proper erosion control measures, and that this violation was sufficient to establish a prima facie case under MEPA.

The Supreme Court first noted that a major purpose of SESCA is to prevent and control water pollution caused by sedimentation and erosion. It then turned to the question of whether the trial court was correct in determining whether SESCA was the proper pollution control standard to apply in this case. The Court found that it was the correct standard. The Court also noted that it did not matter for the purposes of the trial court determination that a Michigan Department of Natural Resources employee testified that an issuance of a SESCA permit had no implications for MEPA, because the trial judge is responsible for independently determining the existence of actual or likely pollution.

Justice Weaver concurred in the result, agreeing with the Court’s conclusion on this issue but not its reasoning.

Issue #2: The Court (Justices Brickley, Mallett, Boyle, and Taylor) held that the “clear and unambiguous” language of the statute indicates that attorneys’ fees are not “costs,” and that it was therefore improper for the trial court to make the defendants pay the plaintiffs’ attorneys’ fees in this case. It rejected the argument that plaintiffs will not bring MEPA suits in the future if judges cannot reimburse their attorneys’ fees, and that the environment may suffer as a result. The Court noted that while this would be an undesirable effect of their holding, it is up to Michigan’s legislature to amend the language of the statute if it would like plaintiffs to be compensated in this manner.

Justices Cavanagh and Kelly disagreed. They thought the Court should have read the statute in light of the state legislature’s intent to encourage private citizens to bring MEPA suits. They argued that the majority’s reading of the statute would frustrate this intent because only those plaintiffs capable of personally funding complex environmental lawsuits (which tend to be very costly) would be willing to bring a suit under MEPA.

Justice Weaver concurred in the result.