Michigan Supreme Court upends major environmental ruling

Apr 26, 2011

It's a case that has turned into a political football for the conservative and liberal incarnations of the Michigan Supreme Court.

In an order released today, the Michigan Supreme Court's conservative majority reversed a major decision that allowed Michigan citizens to sue the state over pollution concerns.

From the Associated Press:

The case involved the discharge of partially contaminated water to a popular trout stream. In December, the court's liberal majority used the case to give more rights to people to challenge
state regulators over certain environmental permits.

At issue is whether people have the right to sue the state over pollution concerns when the state issues things like pollution discharge permits.

The case that was argued involved the Michigan Department of Environmental Quality (MDEQ), Merit Energy, and the Anglers of the AuSable.

MDEQ issued a permit to Merit Energy that allowed them to discharge treated wastewater into the AuSable River. Ultimately, the company decided not to use the permit and didn't discharge into the AuSable, but the case was still argued.

From the Oakland Lakefront:

The Anglers of AuSable filed a suit in 2006 against Merit Energy and the DEQ, claiming violations of their riparian rights and the Michigan Environmental Protection Act (MEPA).

Merit Energy had arranged with the DEQ to treat an underground contaminant plume by extracting and cleaning the contaminated water and material and discharging the treated water on DNR land, which would then flow into Kolke Creek and eventually the AuSable River.

“They wanted to dump millions of gallons a day every day for 10 years,” said Jim Olson, an attorney for Anglers of the AuSable. “They wanted to pipe the treated contaminated water to the wetlands above Kolke Creek.”

The Supreme Court was a more liberal court for the brief time that Justice Alton Davis was on the court at the end of 2010 (that liberal majority ended when Davis lost in the November elections).

That court ruled that the state could be held accountable in a lawsuit because they issued the discharge permit. 

The Lakefront quoted Alton Davis' reasoning:

"Without a permit from the DEQ, a party … lacks the authority to commence the conduct that will harm the environment."

Davis also wrote that a permit from the DEQ acts as “the trigger for environmental harm to occur” and that the permit process is “entirely related to the environmental harm that flows from an improvidently granted, or unlawful, permit.”

Not so as of today. The Michigan Supreme Court that for a short time tipped to the liberals, now tips to the conservatives.

After the November election, Michigan's newly elected Attorney General, Bill Schuette asked the Supreme Court to reconsider the case.

Interlochen Public Radio's Bob Allen reported on Schuette's actions in regard to the case:

In a motion to the Court, his office argues that Merit Energy had scrapped its plan to pump treated groundwater into Kolke Creek last spring. And the DEQ had withdrawn its permit, so the attorney general says the case was moot because the matter had already been settled.

The conservative MI Supreme Court agreed.

The AP reports that the majority on the Court "said the case was moot and should not have been heard last year because Merit Energy had dropped plans to use the AuSable River."

Not surprisingly, The Anglers of the AuSable were not happy with the decision to revisit the case so soon after the court had ruled on it.

The group said the arguments were thoroughly litigated before and "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."