Citizens Lose Ability to Protect Environment by Challenging a Permit

This case determined whether a citizens’ group could challenge a permit allowing sand mining in ecologically sensitive sand dunes. The Michigan Environmental Protection Act (MEPA) allows “any person” to sue under the act to prevent environmental harm to the state. The majority ruling in this case, decided on the public policy rationale that businesses should not have to worry about their permits being challenged, restricted the ability of citizens to challenge a permit issued by the DEQ under MEPA, overturning years of practice. The dissenting opinion would have preserved this ability and upheld the construction, intent, and practice of MEPA to ensure greater oversight and protection of Michigan’s natural resources.

This case addresses whether a citizen group can challenge a sand dunes mining permit under the Michigan Environmental Protection Act (MEPA). The Sand Dunes Mining Act prohibits mining in “critical dune areas” unless an entity is seeking to amend its mining permit to mine a dune area next to land it is currently permitted to mine and it owned the dune area before 1989. In 1996, the Michigan Department of Environmental Quality issued a permit allowing TechniSand to mine in a critical dune area, even though TechniSand had only purchased the mining operation in 1991.

Preserve the Dunes (PTD), a citizens group, sued to stop the mining, arguing that the TechniSand was ineligible for the mining permit, and that the improper issuance of the permit violated MEPA. The Michigan Supreme Court held that the permit could not be challenged under MEPA. MEPA creates a right of citizens to bring suit for conduct likely to result in pollution, impairment, or destruction of Michigan’s natural resources. Without a showing of environmental harm, PTD cannot sue based on an improperly issued permit. In addition, the Court determined that DEQ’s issuance of the permit could be challenged under general statutes governing administrative decision-making, but PTD’s claims would be barred by the applicable statute of limitations.

In 1991, TechniSand, a sand mining company, purchased a sand mining operation with an existing mining permit. In 1994, it applied for an amended permit that would allow it to expand its mining operation into an adjacent “critical dune area.” The Sand Dune Mining Act generally prohibits mining in critical dune areas unless the entity seeking to mine owned the land in question, and had a permit to mine an adjacent area, before 1989. Thus TechniSand would not be technically eligible for a permit to mine the critical dune area. The Michigan Department of Environmental Quality (DEQ) denied the application. However, two years later, and under a new government administration, DEQ approved TechniSand’s resubmitted application. Nineteen months after the application was approved, Preserve the Dunes brought suit under the Michigan Environmental Protection Act (MEPA), alleging that the mining would be harmful to the environment, and the Sand Dunes Mining Act (SDMA), alleging that DEQ improperly issued the permit.

The trial court, considering the MEPA claim alone, determined that any environmental damage to the dunes would not rise to the level of environmental impairment needed for a MEPA suit. The Court of Appeals reversed, holding that PTD could bring suit under MEPA based purely on DEQ’s violation of the SDMA – that is, without showing that mining would be harmful to the environment. Because the Court of Appeals found that the amended permit was improperly issued under the SDMA, it directed the lower court to enter an order in favor of Preserve the Dunes.

Does the Michigan Environmental Protection Act allow a person to challenge the Department of Environmental Quality’s decision to issue a permit under the Sand Dunes Mining Act based on flaws in the permitting process unrelated to whether the conduct involved harmed, or will harm, natural resources?

The majority (Chief Justice Corrigan joined by Justices Taylor, Young, and Markman) held that PTD could not sue under MEPA based solely on an alleged violation of the permitting process in the Sand Dunes Mining Act. The majority stated that MEPA allows citizens to sue for conduct likely to result in pollution, impairment, or destruction of Michigan’s natural resources. Thus, PTD could sue under MEPA based on a showing of potential environmental harm, but not based on “an improper administrative decision [] standing alone.” In this case, violations of the SDMA cannot support a MEPA suit because the Mining Act does not itself contain any anti-pollution standards. The majority stated that PTD could have challenged the SDMA permit under statutes governing administrative decision-making, but such claims would now be barred by the applicable statute of limitations. Because, however, PTD could still challenge the mining expansion itself (as opposed to the permit) under MEPA based on potential environmental harm, the majority sent the case back to the Court of Appeals for that court to consider the lower court’s findings regarding environmental harm.

The Justices in the majority supported their reasoning with a public policy argument. They argued that businesses would be discouraged from investing in Michigan if any permits they acquired would be subject to attack at any time under MEPA based on flaws in the permitting process rather than a showing of environmental harm.

Justice Kelly dissented (joined by Justices Cavanagh and Weaver), arguing that the majority’s approach essentially shields DEQ’s “unexplained and illegal” decision to issue the critical dunes permit to TechniSand from judicial review and “strikes a devastating blow to Michigan’s environmental law.” She argued that permitting decisions under the SDMA inherently include an environmental component, because permission is being given to mine in fragile ecosystems. In general, it is consistent with the legislature’s intent in creating MEPA to allow suits challenging permit determinations. And in this case, it is consistent with the legislature’s intent to preserve Great Lakes sand dunes to allow citizens to challenge a sand dunes permit under MEPA.