MEPA Under Fire By Michigan Supreme Court Again?

Preserve the Dunes has a post on its blog today discussing the potential implications of Attorney General Schuette petitioning the Michigan Supreme Court to reconsider its decision in the Anglers of the Au Sable v. Michigan Department of Environmental Quality, which was argued before the court last week.

As you may recall, this was the decision announced over the holidays that reestablished the rights of Michigan citizens to sue on behalf of the environment as intended by the Michigan Environmental Protection Act.

By all respects, this is entirely a result of the recent election and its dramatic rightward shift.

Recent elections and Gubernatorial appointments have swung the court to a more conservative view. As a result most who are familiar with the new set of Supreme Court Justices see the court now likely to rule 4-3 in favor of the defendants as well as against the recent reconsiderations of water law.

A reversal of the Kolke Creek case might mean the following:

  • Merit Energy would have the legal right to return to the State for easements and a permit to discharge wastewater into the river. This is somewhat unlikely since the oil and gas company has removed the pipeline in question and sought other means of remediation.
  • It would overturn the recent ruling stating that conservation groups can protect Michigan’s natural resources from permit decisions that would facilitate environmental harm. This stemmed from the Preserve the Dunes v. Department of Environmental Quality case where the Supreme Court (2004) and the Court of Appeals (2006) ruled that citizens could not bring citizen suits against the MDEQ for issuing permits authorizing harm to the air, water and natural resources. Only actual harm to the environment could trigger this Michigan Environmental Protection Act (MEPA) statute according to these two rulings.
  • It would also overturn the Court’s overruling of the 2007 decision in Michigan Citizens for Water Conservation v. Nestle. In that case, the Court held that a MEPA action could not be brought unless the plaintiff could show that it had access to and use of the resource that was being damaged. This severely limited the public’s ability to protect natural resources in this State. The most recent decision by the Court’s restores the public’s rights to sue under MEPA to what they were prior to 2007.
  • It could unravel another outcome nested in these far reaching set of decisions. That is a reaffirmation of Michigan law that establishes a clear line on discharges to water bodies like the one proposed by Merit. Furthermore, the Court refused to apply the “reasonable use” balancing test that the Nestle court relied on. Instead, the Court noted that an unreasonable use of water has never been deemed an allowable use and held that Merit’s discharge is not an allowable use of water because it is manifestly unreasonable. All that could change with a reversal.
  • Anglers believes the decisions rendered in the Kolke Creek case are based upon issues that were thoroughly litigated. There are no sound reasons for a revision or even reconsideration so soon after such a review. This smacks of nothing more than partisan politics.
  • The fact of the matter is that there should be no rehearing at all.  They should not be playing partisan politics with the Michigan Supreme Court.

Read the full post here.

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