High court in flux delivers victory to environmental groups

The Michigan Supreme Court has overturned one of the most controversial rulings in its history and upheld a citizen’s right to sue the state for issuing permits to corporations authorizing action that harms the environment.

The court also struck down an energy company’s plan to pipe partially treated contaminated water from one watershed to another.

In 4-3 decision released on Wednesday the court ruled in favor of a group of northern Michigan anglers and waterfront property owners who objected to an energy company’s plan to dispose of partially treated contaminated water in the Au Sable River via a pipeline through state land.

Writing for the majority, outgoing Justice Alton Davis said:

We hold that Merit’s discharge plan is not an allowable use of water because it is manifestly unreasonable, and we further hold that the DEQ can be sustained as a defendant in a [Michigan Environmental Protection Act] action when the DEQ has issued a permit for activity that it is alleged will cause environmental harm.

Nick Schroeck of the Great Lakes Environmental Law Center, which filed a brief with the National Wildlife Federation in support of the anglers/plaintiffs in the case, called the decision “a huge legal victory” for environmental groups on several very important state law issues.

In a post on the Great Lakes Law blog Wayne State University law professor Noah Hall explains that the court’s Anglers of the AuSable decision expressly overrules the court’s 2004 Preserve the Dunes case, which cast doubt on whether citizens can sue state permitting agencies for authorizing environmental damaging activities.

In the Anglers of the AuSable decision the court also overruled the restrictive standing test used in its controversial 2007 Michigan Citizens for Water Conservation v. Nestle ruling.

In that case the court ruled that in order to bring a suit under the Michigan Environmental Protection Act a citizen must establish that “he has suffered or will imminently suffer a concrete and particularized injury in fact.”

Justice Davis wrote that the court was wrong in the Nestle case:

MEPA, which specifies that “any person may maintain an action . . . against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction,” should be applied as it is written.

“This sends a signal that our lakes, streams, and the Great Lakes will not be plundered by relaxed legal principles that condone harmful diversions and exploitation,“ said Jim Olson, who represented the Anglers before the Court. ”It fully restores the rights of citizens to sue the state for permitting projects that are likely to degrade the environment and our states’ waters.”

Though it is a meaningful and welcome development for environmentalists, it is unclear how long the decision will stand. The decision was split along party lines and the dissenting Republican justices have regained a majority on the court as of this week.

In his dissenting opinion Justice Robert Young, who is now in line to become Chief Justice of the court, echoed concerns brought by state business groups. He argued that that the overturning of Preserve the Dunes would wreak havoc on the state’s legal system and “further undermine the state’s fragile economy.”