Suing the state over pollution permits

Feb 8, 2011

A case that pinpoints a key issue in Michigan’s water law could come back before the state Supreme Court. The office of Attorney General Bill Schuette has asked the court to rehear the Anglers of the Au Sable case. The issue is: whether citizen groups can take state agencies to court to protect the environment.

Here's the nut of the case:

  • The Anglers group won their suit in the lower court to protect one of the state’s prime trout streams. The Department of Environmental Quality had given Merit Energy permission to pump more than a million gallons a day of treated wastewater into a creek at the headwaters of the Au Sable River.
  • The Court of Appeals upheld the ruling against the oil company but exempted the Department of Environmental Quality from the lawsuit. The Appeals Court said the issuing of a permit doesn’t cause harm to the environment... it’s the person with the permit that could do that.

So Anglers asked the Michigan Supreme Court to review that part of the ruling.

And in December the high court overturned the lower court and said state agencies that issue permits that result in harm can be named in a citizen suit.

The Court upheld clear language in the Michigan Environmental Protection Act that says any person can bring suit to protect the environment.

Jim Olson, an attorney for the Anglers, says the decision upholds state environmental law that’s been in place for more than forty years.

“Permits that cause harm can be brought into Circuit Court and people can bring it out into the open and judges can make decisions so agencies can’t hide behind the cloak of bureaucracy.”

Since December, a conservative majority is back in control of the Supreme Court.

And the state attorney general is now asking for a rehearing of the case.

In a motion to the Court, Attorney General Bill Schuette's 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that Merit Energy had scrapped its plan to pump treated groundwater into Kolke Creek last spring, and the DEQ had withdrawn its permit.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.

That was the main argument of Justice Robert Young, who dissented in December and is now Chief Justice.

But Angler’s attorney Jim Olson says both sides fully argued that point before the Supreme Court, and the Court made its decision fair and square.

We requested comment from the attorney general's office and Merit Energy, but neither responded by our deadline.