January 11, 2011

MI Supreme Court Rules on Water Law and Standing Issues

Noah Hall has posted a detailed report of the decision in Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company, a signficant new decision of the Michigan Supreme Court addressing water law and standing issues on his Great Lakes Law blog.

Prof. Hall characterizes the majority’s decision in the case of as "a huge legal victory for Anglers of the AuSable and other environmental groups on several very important state law issues." He notes, however, that the decision was issued right before a major change in the Court’s balance and composition as a result of the 2010 elections, and that the dissenting justices have now regained a majority on the court.

In addition to issues in interpreting the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), the Court was faced with several legal issues under Michigan riparian water law. The Court was asked to rule on the appropriate legal test for discharge of polluted water and whether a proposed diversion of contaminated water from the Manistee River watershed into Kolke Creek and the AuSable River watershed was lawful. The Court declined to clarify the relevant legal test, concluding that the discharge, in the circumstances presented, was “manifestly unreasonable”.

The Court declined to address the issue of whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy). According to the majority, that issue was not “outcome-determinative”.

On the MEPA issues, the Court expressly overruled the Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) and held that state agencies can be sued under MEPA and held accountable for pollution that will result from issuing permits. Chief Justice Kelly, who dissented in Preserve the Dunes and joined the Anglers of the AuSable majority in overruling that prior decision, wrote a separate concurrence to justify the decision under the doctrine of stare decisis.

The Court in Anglers of the AuSable also overruled the restrictive standing test used in the Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc. (727 NW2d 447), and instead relied on its 2010 decision in Lansing Schools Education Association v Lansing Board of Education to apply MEPA’s express statutory language and allow any citizen to bring suit under the law.