Michigan AG To Ask For Reconsideration

As reported in the prior post, the Michigan Supreme Court ruled in the Anglers of the AuSable case that the legislature meant “any person” when it wrote in the Michigan Environmental Protection Act:

any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.”

But the membership of the court has changed. Now we have four conservative justices who care little for conserving the natural resources of the state and three liberal justices. So Attorney General Schuette has announced he will file challenges in three cases addressed by the Court rulings issued on December 29th, one of which is the Anglers case. In a press release on the state’s website he writes:

“Anglers of the AuSable v. Department of Environmental Quality – The Court ruled that any citizen can sue the Michigan Department of Environmental Quality under the Michigan Environmental Protection Act for the issuance of a permit.  This clearly would have a detrimental impact on Michigan’s economy.  The Attorney General’s office will file a motion for rehearing in this case and will argue the case is moot, and that the existing permit appeals process is the proper forum to address citizen concerns.”

Until 2004, anyone could challenge a permit under MEPA. Now with the recent ruling in the Anglers case anyone can once again do so. Now Mr. Schuette wants to prohibit legal challenges. We think this is ill advised for several reasons:

1.  If citizens were to be wholly dependent on the DEQ for protection of the natural resources, without recourse to the courts, their environment would be seriously threatened. We have seen time and again that the DEQ enforcement of the Sand Dune Mining Act (SDMA) is lax and inadequate.

We have seen a permit issued to mine in a critical dune area in clear violation of the law. We have seen requirements of the SDMA ignored; done so in the name of being business-friendly. We have little hope that the DEQ’s performance will improve.

2.  Up until 2004, it had not been detrimental to the state’s economy or too costly to the state. Nor is it likely to be in the future. Because pursuing an action in the courts is tremendously expensive, few did so. The stakes have to be extremely high to justify the costs. Only the most significant permitting cases ended up in the courts, as it should be.

3.  In another case, Mr. Schuette said that he will argue “the courts are not the place for that argument, rather the legislative branch is.” But in the Anglers’ case, Mr. Schuette will be asking the court to legislate. Doing so politicizes the court, damages its credibility, and lowers the public’s trust in the courts.

See the post on January 7 for a description of the Supreme Court’s opinion in the Anglers’ case.

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