Majority rules

Oct 6, 2010 at 12:00 am

A few years ago, a mid-Michigan group of fly fishermen won their immediate court fight to prevent an energy company's wastewater from being piped across state land and into the headwaters of their treasured Au Sable River.

An Otsego County judge stopped the pipeline, which would have pumped more than a million gallons a day into a creek that feeds into a small lake and then flows to the Au Sable. 

But the fight didn't end with one judge's ruling. Attorneys representing the Anglers of the AuSable are scheduled to be at the Michigan Supreme Court this week arguing appeals of the case involving the Texas-based oil company Merit Energy Co., which originally wanted the pipeline, and the Michigan Department of Environmental Quality, which issued the permit for it as well as its easement across the state-owned land.

For the high court, the actual pipeline request is moot — Merit withdrew its plan after its first court loss — but the battle now centers around, in part, who is allowed to sue under the Michigan Environmental Protection Act regarding the state's permitting process and on what grounds such permits should be decided. 

Environmentalists are excited because the case just might allow the new, Democratic majority of justices to undo environmentally unfriendly rulings handed down by the state Supreme Court when business-friendly conservatives controlled it.

"This case could change or affirm what average citizens have a right to do regarding pollution," says Nick Schroeck, executive director of the Great Lakes Environmental Law Center at Wayne State University. The center has filed a brief supporting the anglers' arguments. 

"It's not just about water Up North or pristine natural resources," says Schroeck. "It's everything involving the environment of Michigan, which includes things like the air we breathe, the water we drink. It has huge implications for urban environments as well, because it could give citizens the opportunity ... to get into court."

The AuSable Anglers, joined by two private landowners, weren't thinking about statewide implications of who had standing in environmental cases when they filed suit against Merit Energy and the state. They just wanted to protect the river from pollution, says Terry Lyons, a founding board member of the 25-year-old, Grayling-based fly-fishing group.

After the circuit court judge's 2007 ruling prevented the pipeline from being installed, appeals have come to involve, in part, the issue of who in Michigan has the right — or standing, as it is known in legalese — to sue over environmental claims. 

The Michigan Environmental Protection Act, adopted in 1970, states that "any person" may sue to protect "the air, water and other natural resources ... from pollution, impairment or destruction." 

That principle seems clear: everyone shares in the benefits of Michigan's natural resources and has the right to help protect or manage those resources through legal claims when they are threatened. 

"It's a law that is meant to not only protect what is scarce but also to protect and improve the natural resources and environment for all of us," Schroeck says.

That attitude prevailed for nearly 40 years after MEPA's adoption. But led by the conservative "Gang of Four" — Steven Markman, Robert Young, Maura Corrigan and Clifford Taylor, all originally appointed to Michigan judgeships by former Republican Gov. John Engler — Michigan's seven-member Supreme Court sided with industry in a 2007 ruling that limited citizens' ability to use the courts to protect Michigan's environment. The case was Michigan Citizens for Water Conservation vs. Nestle Waters North America. 

In it, the "Engler majority" determined that only individuals who could prove personal harm — not "any person'' as MEPA prescribed — could sue. Since the plaintiffs in the Nestle case didn't own or directly use the water Nestle was harvesting for a bottling operation, the citizens did not have standing, the court ruled. 

In another case, Preserve the Dunes Inc. vs. the Michigan Department of Environmental Quality, the citizens group challenged the state-issued permit to allow sand dune mining. The Engler majority in 2004 ruled that in such cases, only the party that would be doing the "polluting" could be named, not the state agency. That, environmentalists say, is also contrary to the MEPA statute.

Although happy when the Merit pipeline plans were shot down by a lower court judge in 2007, the anglers have pursued the suit's other appellate issues to challenge the Nestle ruling as well as to clarify the Dunes ruling so that there's no doubt about the ability of citizens to contest state decisions in issuing permits to polluters. 

Appellate decisions did not, to the parties' satisfaction, clarify by what processes companies like Merit could be granted, essentially, pollution permits, what "test" could or should be applied to determine whether the state grants a permit, and whether the anglers have a cause of action under the state Environmental Protection Act.

What has environmentalists optimistic is the change in the court's makeup. Two years ago Wayne County Circuit Judge Diane Hathaway, a Democrat, unseated incumbent Taylor, and this year, Republican Betty Weaver retired, allowing Gov. Jennifer Granholm to appoint former Michigan Court of Appeals Judge Alton Davis, considered a moderate liberal, to replace her. 

With this change from a conservative to more progressive majority, it's possible — even likely — the court could continue to undo many of the pro-business, anti-environmental rulings of the previous era, says James Clift, policy director for the Michigan Environmental Council.

"I think they're coming back to a more moderate center which I believe is more consistent with the people of the state of Michigan. Hopefully some of the bad cases we've seen over the last decade were the exception to the rule and this court and future courts will take positions that strongly protect the environment," he says.

The conservative justices have complained that if the court hears AuSable Anglers and uses it to overturn the Nestle Water and Dunes cases, it would violate stare decisis — the prevailing legal tenet that dictates courts, in general, should let previous legal decisions stand.

"The reason why the 'new majority' declines to [dismiss the case] is because it disagrees with this Court's decisions in Michigan Citizens vs. Nestle Waters and Preserve the Dunes vs. DEQ. It now seeks to overrule them despite constitutional mootness principles that deprive this Court of the authority to do so in this appeal," Young wrote in the dissenting opinion issued in response to the court majority's decision to hear the case.

Talk about hypocrisy of the highest order. The Nestle and Dunes cases undid decades of legal precedent and were, in the minds of many, completely at odds with the Legislature's intent when it drafted and adopted the state's Environmental Protection Act.

In other words, as far as the conservatives are concerned, precedent is only important when it favors their political agenda. Otherwise, screw what has come before and make up new rules.

Looking forward, two justices will be elected in November, which could, again affect the court's makeup if the current liberal majority is replaced with Republicans.

"It comes down to who gets elected," says Bill Ballenger, editor of Michigan Politics, and a leading state political analyst. "You're going to see a lot of money spent on this in the next four weeks, that's for sure."

News Hits was written by Metro Times staff writer Sandra Svoboda. You can reach her at 313-202-8015 or [email protected]