Two years after the Michigan Supreme Court ruled on two cases involving industrial development, a review of new environmental cases by the Great Lakes Bulletin News Service reveals that the Court's decisions are forcing lawyers to change how they use a seminal, 36-year-old state law designed to protect the environment.

In the 1970s and 1980s, environmental advocates and their lawyers looked to that statute, the Michigan Environmental Protection Act, as the central legal tool for protecting the state's air, water, land, and natural resources. MEPA allows any person to bring a lawsuit to protect natural resources, and requires state and local governments to consider the effects of their actions on the environment and promote less damaging alternatives.

Citizens used MEPA to produce such public interest victories as halting Shell Oil’s plan to indiscriminately drill for oil and natural gas in the Pigeon River Country State Forest in the late 1970s. Other MEPA-based victories include blocking Mason County from dredging damaging new channels in a river in 1975, and forcing developers to comply with environmental standards in building condominiums along Lake Michigan in Manistee in the late 1990s.

Those courtroom victories, and others, established MEPA as a guide for the Legislature as it designed, approved, and enforced new statutes that established Michigan’s environmental protection program. Environmental advocates tested the new laws, which were meant to clean the air, clear the waters, safeguard habitat, and protect public health, in court. But they also relied heavily on MEPA to strengthen their arguments. Its proven safeguards served as an important backstop for many cases, say environmental attorneys.

But two years ago, in separate cases involving hard-rock mining in the Upper Peninsula and sand mining near Lake Michigan, the state Supreme Court’s decisions significantly limited MEPA's scope. In the first ruling, the court strongly indicated it was ready to severely diminish the public’s use of MEPA as a legal tool. In the second, the court explicitly ruled out the use of MEPA to challenge many decisions by state regulatory agencies, a decision that seriously hinders citizens from confronting polluters and those state agencies.

Environmental attorneys, including MEPA’s author, say the court’s rulings seemed to deliberately thwart the law’s intent and essentially marginalized it.

“The 2004 decisions are not at all consistent with what the Legislature had in mind, and the court just ignored that. It was just wrong,” said Joseph Sax, a law professor at the University of California in Berkeley who, as a professor at the University of Michigan Law School, drafted the language of the environmental protection statute in 1969 and worked for its passage.

A Pioneering Legal Step
MEPA, approved in 1970, was a pioneering law designed to provide citizens with broad power to bring court actions to prevent “pollution, impairment, or destruction” of natural resources. The law was the first in the nation to lay out the legal basis for protecting natural resources and turned ordinary citizens into environmental prosecutors.

The 128-word statute was based on the plainly evident ideas that natural resources mattered, the Legislature needed to fashion new laws to safeguard those resources, and the courts must enforce those laws. 

Citizens and their lawyers immediately began to use MEPA to halt serious harm to natural resources. In 1976, Bloomfield Hills-based environmental lawyer Jeffrey Haynes found that public officials, environmental groups, and citizen groups filed 119 cases under MEPA between 1970 and 1976, winning 47 of the 81 cases completed by that time.

Citizen groups continued to use the statute as the foundation of their courtroom efforts after its initial successes, filing hundreds more lawsuits by 1985, according to an article by Traverse City attorney Jim Olson. By this time the Legislature had passed new statutes, such as the 1976 Sand Dune Protection and Management Act and the Wetland Protection Act of 1979, to protect the state’s natural resources.

As these and other protections were added, MEPA became less a foundation for much environmental litigation and more a background component of complex lawsuits that depended on  the newer, more specific regulations. By the 1990s, MEPA was mostly a tool for attacking environmental problems not covered under other statutes.

Gina Bozzer, an environmental attorney in Traverse City, explained that “we deal with MEPA issues pretty regularly, but it’s often not the main focus of the complaint. It’s usually a companion, helping the existing claims.”

Citizens Cut Off From Courts?
But on July 30, 2004, MEPA briefly moved back into the spotlight as the Michigan Supreme Court issued two rulings that went to the heart of how the statute has been used for. The cases raised two crucial questions: Who has the right to bring a lawsuit under the statute, and can citizens rely on MEPA to challenge state-issued permits?

The first case, brought in 1999 by the National Wildlife Federation on behalf of citizens in the Upper Peninsula, sought to stop the Cleveland Cliffs Iron Company from filling in wetlands and streams with mining wastes from its Empire Mine in Marquette County.

The Marquette County Circuit Court threw out the lawsuit in 2000, saying that the Wildlife Federation did not have sufficient direct involvement in the dispute, also known as "standing," to bring a lawsuit under MEPA.

The Wildlife Federation appealed, arguing that they did have standing because MEPA allows “any person” to file suit, and that their members and nearby citizens had a recreational interest in the mining location and the potential harm to wetlands and streams. The Court of Appeals, in 2002, agreed and allowed the federation to file a lawsuit to stop Cleveland Cliffs from expanding the Empire Mine.

When the company appealed that decision to the state Supreme Court, arguing that the statute’s standing provision was much narrower, many legal experts in Michigan anticipated that the Court would decide whether MEPA’s provision allowing “any person” to file an environmental lawsuit, and element fundamental to the statute, was constitutional.

Though the Supreme Court allowed the Wildlife Federation to pursue their case, saying recreational use gives them a legal interest, the justices based that decision on a general standing requirement for any type of case. This did not address the specific standing requirement for environmental cases articulated in MEPA and left environmental groups wondering about the Court's support for MEPA.

A Warning Tone
Indeed, the tone of the majority 4-3 opinion suggests that citizens should be worried about their ability to protect natural resources through the courts. The opinion warned against the dangers of allowing "any person" to bring a court challenge, claiming that it invites abuse and violates the separation of power.

“When a broadening and redefinition of the ‘judicial power’ comes not from the judiciary itself, usurping a power that does not belong to it, but from the Legislature purporting to confer new powers upon the judiciary, the exercise of such power is no less improper,” said the justices.

But the legislative intention of MEPA, counter attorneys, was to apply the statute broadly so that any citizen can bring a lawsuit.

The ruling's ambiguity and warning tone has already compelled lawyers to find plaintiffs who meet a stricter standing requirement, just as the court envisioned.

“Environmental litigators are holding our breath until the next standing case goes to the Supreme Court to see how much of the Cleveland Cliffs case was based on the specific facts of the case and how much on a policy shift,” said Michelle Halley, an attorney for the National Wildlife Federation who argued the case in the Supreme Court. “A lot of the dicta indicate that they may rule a different way under different circumstances.”

“I think this might make it more difficult for groups who are removed from the site of environmental harm,” added Ms. Bozzer. “For most of the groups, they can find someone local, someone who has been impacted by the offense.”

The business community, however, supported the Supreme Court decision. Some business people argue that plaintiffs should indeed be more closely tied to the area where the harm has occurred, and that the justices took a step forward for environmental policy and regulation.

“The majority opinion was right on and accurate in that case,” said Doug Roberts, Jr., the director of environmental and regulatory affairs at the Michigan Chamber of Commerce. “You have to have some sort of determined harm to have legal standing. You can’t be a group from Ann Arbor and file a case in the Upper Peninsula.”

Undermining MEPA
The Supreme Court’s second recent decision involving MEPA concerns a citizen group’s struggle to block Technisand Mining Company from expanding an existing mine and leveling a protected sand dune near St. Joseph near Lake Michigan.

In 1995, the state Department of Natural Resources denied the mining company a permit because Technisand did not qualify for an exemption in the 1976 Sand Dune Protection and Management Act.

But after Republican Governor John Engler reorganized the way Michigan manages its natural resources in 1996, the newly established state Department of Environmental Quality overruled the DNR and granted Technisand’s new application for a mining permit. Preserve the Dunes, a group of nearby land owners and residents, sued under MEPA in 1998, arguing that Technisand was ineligible for the permit, that the mining would damage the environment, and that, furthermore, the mining was illegal under the state Sand Dune Protection Act.

The circuit court, in 2000, found that the mining would not cause enough damage for MEPA to stop it. Preserve the Dunes appealed; the Court of Appeals, in a unanimous 3-0 decision, found that Technisand was not eligible for the permit, and ordered the mining to be stopped. But when Technisand appealed, the Supreme Court ruled that MEPA did not cover challenges to state permitting decision. So the Court allowed Technisand to level the sand dune and expand the mine.

The ruling greatly changes plaintiffs’ abilities to defend natural resources in the courts. That is because agencies like the DEQ interpret and enforce so many of the state's environmental regulations. Agencies' interpretations and enforcment actions often change significantly, depending on whether Republicans or Democrats are in the governor’s office. Blocking plaintiffs from challenging permitting decisions under MEPA could prevent citizens from using the statute in a significant number of cases.   

“We now have many more controversies being dealt with by agencies because the Legislature decided it’s important for these to be regulated,” said Mr. Haynes. “But the court is acting very cautiously, saying they’re not going to allow all sorts of cases with a peripheral environmental mission under MEPA. The court viewed the Preserve the Dunes case as a technical dispute unrelated to the environment, and so they wanted to keep it separate from MEPA.”

“The Supreme Court believes that the courts should leave environmental agencies to protect the environment, or not, as the agencies see fit,” added Mr. Haynes, “a result that should concern both environmentalists and businesses.”

The business community, however, claims that environmental protection is not affected by a stricter interpretation of MEPA. Mr. Roberts said, “I think there are pretty strong laws within the Natural Resources and Environmental Protection Act. Those set the bar pretty high for environmental regulation, and I think they could do their job just as well without the specifics of MEPA.”

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WHAT HAPENED

July 25, 2007

LANSING -- The Michigan Supreme Court on Wednesday put additional severe limits on a long-standing state law, the 1970 Michigan Environmental Protection Act, that allows Michigan citizens to sue over industrial activities they believe would damage the state's natural resources. ;s  ral drilling, dredging and development they think would hurt the state's environment.

The ruling came in a case involving the Nestle' Coporation's right to take groundwater for its Ice Mountain bottling plant in Mecosta County. Local residents had sued Greenwich, Conn.-based Nestle Waters North America and its bottled water operation in 2001 over potential damages to nearby waterways.

In its 4-3 decision, the Supreme Court upheld Court of Appeals decisions that said the residents had the legal standing to sue the company over how its water withdrawals might affect the Dead Stream and Thompson Lake. But it disagreed with the lower court's ruling that the residents also had the legal standing to sue over a nearby lake -- Osprey Lake Impoundment -- and three wetlands, saying residents didn't prove they used those areas.

Justice Marilyn Kelly criticized the majority's decision, writing in her dissent that "it extinguishes a valid cause of action for no reason other than its belief that the cause of action granted by the Legislature is too broad."

A Nestle spokeswoman said the court simply was being consistent with an earlier ruling that limited the law's scope.  But David Holtz, director of Clean Water Action Michigan, said the court's ruling makes it even more important to pass legislation protecting Michigan's waters. A package of bills was introduced this week in the state House to strengthen a permit system for water withdrawals.

"Four justices have cast their vote in favor of big business and against citizens, local governments and communities," Holtz said in a release. "Michigan's future is much more at risk today because of the court's attack on Michigan's constitutionally protected natural resources."

In their majority opinion, Justices Robert Young, Clifford Taylor, Maura Corrigan and Stephen Markman said citizens can claim an environmental injury only when they can show that someone's actions would directly affect their recreational, aesthetic or economic interests.

In an editorial on July 29, 2007, the Traverse City Record Eagle wrote: "Former Gov. John Engler's Gang of Four has once again chipped away at your rights as a Michigan citizen. In the process, they have also pushed us closer to a time when water — the state's most precious asset — can be bought and sold like cornflakes. At the urging of attorneys for Nestlé Waters North America, a four-justice majority of the state Supreme Court ruled Wednesday that Michigan's seminal Environmental Protection Act, which gave any citizen the standing to sue to protect the environment, doesn't actually mean any citizen.

It was an affront to common sense, the rule of law and the English language. Despite the fact that all four of the justices involved are far-right Republicans, the ruling was as glaring an example of activist judges changing legislative intent that you'll ever see. Read it for yourself. This is Section 1701 of the 1970 law. Italics are added:

"Sec. 1701. (1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief 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.”

The Engler Majority, however, decided that any person actually means any person who can show to the court's satisfaction that he or she actually uses the air, water and other natural resources in question and can prove "specific, particularized harm” by the pollution, impairment or destruction of those resources.

That spin is a far, far cry from the crystal-clear language of the act and protects only those doing harm. State lawmakers didn't add the words "specific, particularized harm” when they passed the Act in 1970. And supporting sections clearly show the intent was to allow anyone to intervene on behalf of state resources. But Chief Justice Clifford Taylor (appointed by Engler) and justices Robert Young Jr. (appointed by Engler), Stephen Markman (appointed by Engler) and Maura Corrigan (appointed by Engler to the Court of Appeals) decided that either any person doesn't actually mean any person or that lawmakers didn't really mean any person even though that's what they wrote or they were simply wrongheaded.

In any case, it was anything but a "literalist” interpretation of the constitution, despite the Engler Majority's claims that the law is what is written and no more. It was activism, pure and simple, and a continuation of the majority's continued effort to limit citizen access to the courts. In a dissent, Justice Elizabeth Weaver (Justices Michael Cavanagh and Marilyn Kelly also dissented) said the Constitution gives the Legislature broad powers to protect the environment, including empowering citizen lawsuits. That is certainly what Sec. 1701. (1) says.

All this, of course, will make it much more difficult for neighbors or environmentalists to sue to halt activities they think are harming the environment. It's practically an invitation for the wider export of state water.

Laura Bishop, a student at the University of Chicago, is a Jeff Metcalf Fellow reporting and writing this summer on the Michigan Land Use Institute’s news desk. Reach her at laurab@mlui.org.