Conservative court could endanger Michiganders' right to sue over environment

The way Jim Olson sees it, a state Supreme Court decision last week should help Michigan protect its natural resources, at least as long as the justices don't reverse themselves again and stick with four decades of law they've now aligned themselves with. A key issue in the decision is citizens' ability to sue state agencies on behalf of the environment.

The opinion, issued Dec. 29, decided a case brought by Olson, a Traverse City attorney, on behalf of a mid-Michigan fishing club against Merit Energy Co. and the Michigan Department of Environmental Quality. In 2006, the state agency issued a permit for the Texas-based oil company to pipe wastewater across state land and into the headwaters of the Au Sable River. (See "Majority Rules," Oct. 6, 2010)

At issue in the Anglers of the AuSable lawsuit, in part, was who has standing to bring legal action under Michigan's Environmental Protect Act, adopted in 1970. For 37 years, the act's provision that "any person" may sue to protect "the air, water and other natural resources ... from pollution, impairment or destruction" was broadly construed. But in 2007, the conservative majority on Michigan's highest court — all originally appointed by former Gov. John Engler — limited citizens' ability to use the courts to protect the environment through litigation.

In that case, Michigan Citizens for Water Conservation v. Nestle Waters North America, the Engler majority determined that individuals had to prove personal harm to have standing and bring a suit. The Anglers' decision undoes that 2007 decision.

"It's a very important decision because the court is basically signaling to the lower courts and the bench and the bar and the people of Michigan that it's not going to just open up the selling of Michigan lakes and streams and the Great Lakes to these kinds of invasive political decisions," Olson says.

The Anglers' decision also overturned a 2004 Engler majority decision, Preserve the Dunes Inc. v. the Michigan Department of Environmental Quality, which limited the ability to name state agencies in polluter lawsuits. Olson worries the states' water would have gone virtually unprotected without the Anglers decision.

"It would basically mean that our lakes and streams could be sold because economic benefits would outweigh harm to individuals and to the public," Olson says.

But with a new conservative majority on the court, the Traverse City attorney and other court watchers think maintaining the Anglers' decision might be like paddling upstream.

"It's good news ... for now," says Nick Schroeck, executive director of the Great Lakes Environmental Law Center at Wayne State University.

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