The Michigan Supreme Court’s new conservative majority ordered by a 4-3 vote Tuesday to vacate on appeal a ruling issued just four months ago by the Court’s then-democratic majority, closing the door on citizens’ abilities to challenge the state over environmentally damaging permits.
The Court had originally ruled on December 29, 2010 (also by a 4-3 vote) in favor of the Anglers of Au Sable River, who filed suit against the Michigan Department of Environmental Quality and Merit Energy Company over a permit issued by the state to allow Merit Energy to dump up to 1.15 million gallons of treated wastewater daily into an Au Sable tributary.
Read the Court’s Opinion in Anglers of the AuSable, Inc. et al v. Department of Environmental Quality et al.
The December decision, itself reversing a lower court’s decision, held that Merit Energy’s discharge plan was not an allowable use of water, deeming it “manifestly unreasonable,” and ruling the Michigan DEQ, as the permitting party, also to be held responsible.
Tuesday’s decision, however, backpedals completely from that stance. Justice Stephen Markman wrote in the majority opinion that the case was obviously “moot,” as Merit Energy had since decided against using the Au Sable River. Quoting from a previous case, he wrote that the case was moot as it presented “nothing but abstract questions of law, which do not rest upon existing facts or rights.”
Justice Michael Cavanagh, however, writing for Justices Marilyn Kelly and Diane Hathaway in dissent, vehemently argued that the case’s “reconsideration on mootness grounds is improper.”
“Apparently, some members of the majority are now willing to rely merely on the ever-changing nature of the Au Sable River as reason to reverse course, contrary to their previous statements,” he declared, attacking Chief Justice Young as inconsistent.
Critics have slammed Tuesday’s reversal as a case of party politics. The December decision reached by a liberal majority was hailed as expanding the right for individuals to challenge the state over permits on the grounds of environmental harm, and allowed any Michigan citizen to file suit against the state.
But the balance of power on the Court shifted with the election of conservative Justice Mary Beth Kelly, and the new conservative majority quickly stripped away that expanded power, annulled any legal precedent set in December, and effectively re-restricted a citizen’s right to sue.