The case — Anglers of the Au Sable v. Dept. of Environmental Quality — involved Merit Energy’s DEQ-permitted plan to move contaminated water into a different watershed by pipeline and discharge it into Kolke Creek, which flows into the Au Sable river in Otsego County.
A group of anglers and riverfront property owners sued the state and Merit Energy, claiming that the plan violated their riparian water rights and the Michigan Environmental Protection Act. The Otsego circuit court agreed and blocked the discharge plan as unreasonable, though it allowed for the possibility that a reasonable plan could be determined.
Wishing to definitively block moves to transfer contaminated water between watersheds, the plaintiffs appealed, but the Court of Appeals ruled that the state could grant Merit the right to use Kolke Creek as a disposal site. It also found that the Anglers could not sue the state for permitting the discharge plan.
Last year the Michigan Supreme Court, which then had a Democratic majority, agreed to hear an appeal of this decision. The court indicated that it was ready to reexamine two controversial supreme court cases — Preserve the Dunes Inc v. Dept. of Environmental Quality and Michigan Citizens for Water Conservation v. Nestle — that narrowed citizen options for legal action to stop environmental damage. Both of those cases had been decided while the court was under Republican control.
In 4-3 decision issued at the very end of the year and authored by Justice Alton Davis, a Democrat who had lost his reelection bid, the court rejected DEQ and business arguments that people should not be allowed sue until after damage occurs. It also reaffirmed that the Michigan Environmental Protection Act allows anyone to sue to block environmental damage.
The decision was celebrated by environmentalists but it was pretty clear that the Republican majority that was set to retake the court in January saw the matter differently and that future cases might reverse the gain.
In January Michigan attorney general Bill Schuette asked the court to reconsider Anglers of the Au Sable v. DEQ. He said that allowing people to sue to the state over permitting decisions would harm Michigan’s economy.
It did not take long for the new court to act. In an order released last week the court took the unusual step of vacating the Anglers of the Au Sable ruling without any new information. The court decided that the case had been moot when it was decided because the company has abandoned its plans to discharge the water into the creek, and that the previous court should not have considered it.
“I have a hard time seeing this being anything other that a political or ideological decision,” said Nick Schroeck, executive director of the Great Lakes Environmental Law Center, which together with the National Wildlife Federation filed a brief in support of the Anglers/plaintiffs. “Ordinarily a court will not rehear a case when no underlying facts have changed.”
“I think it was an overreach on the part of the court. Hopefully people will notice this and remember it when they vote for the supreme court justices in the future.”
Though the court’s move is a disappointment for those who worked on the case and believed it had been decided, Jim Olson, who represented the Anglers, said that there is some consolation in the fact that the opinion also vacates the court of appeals ruling that had made it significantly more difficult for citizens to sue over environmental damage.
“The silver lining is that those problems in the court of appeals decision were erased,“ he said. “Michigan precedent prior to this case remains. Diversions of our watershed that diminish flow and level can’t be done.”
“We are back to where we were before the decision — questions remain over when the state is liable for permitting damage.”
Schroeck and Olson both agree that the lack of clarity over how the state can be held responsible for issuing permits for activities that destroy natural resources is especially dangerous given the fact that cash-strapped state agencies have diminishing capacity to evaluate permit applications and are under increasing pressure to streamline and speed up permitting.
“The idea that we must wait for harm to occur is dangerous,” Olson said. “The courts are favoring industry and weakening the rights of citizens and of the state, which is compromised by budget crisis. Not only do we have a budget crisis, our most valuable asset can’t be protected and conserved as it should be.”
