As was reported on this site, Attorney General Schuette announced his intention to file for reconsideration of the Michigan Supreme Court’s decision in the Anglers of the Au Sable v. Michigan Department of Environmental Quality. On January 19, he did so. On February 1, the court heard arguments for reconsideration.
How did this happen so quickly?
Recent elections and gubernatorial appointments have created a court that values deregulation and convenience for businesses above environmental protection. Most who are familiar with the new set of Supreme Court Justices expect the court to rule 4-3 to reverse their December 31 decision that gave any person the right to seek relief in an MEPA claim.
Traditionally, only judges remaining on the bench who heard the original appeal will participate in a rehearing. If this practice is followed, then justices Kelly, Hathaway and Cavanagh (likely to uphold the case) will hear the case with Young and Markman (likely to reverse) and the Anglers should prevail. However, if the new Justices, Mary Beth Kelly and Brian Zahra (both conservative), participate in the reconsideration then Anglers’ recent opinion will be in jeopardy.
A reversal of the Kolke Creek case might mean the following:
- Merit Energy would have the legal right to return to the State for easements and a permit to discharge wastewater into the river. This is somewhat unlikely since the oil and gas company has removed the pipeline in question and sought other means of remediation.
- It would overturn the recent ruling stating that conservation groups can protect Michigan’s natural resources from permit decisions that would cause environmental harm. This stemmed from the Preserve the Dunes v. Department of Environmental Quality case where the Supreme Court (2006) ruled that citizens could not bring citizen suits against the MDEQ for issuing permits authorizing harm to the air, water and natural resources. Only actual harm to the environment could trigger this Michigan Environmental Protection Act (MEPA) statute according to these two rulings.
- It would also overturn the Court’s overruling of the 2007 decision in Michigan Citizens for Water Conservation v. Nestle. In that case, the Court held that a MEPA action could not be brought unless the plaintiff could show that it had access to and use of the resource that was being damaged. This severely limited the public’s ability to protect natural resources in this State. The most recent decision by the Court’s restores citizens’ rights to sue under MEPA to what they were prior to 2007.
- It could unravel another outcome nested in these far reaching set of decisions. That is a reaffirmation of Michigan law that establishes a clear line on discharges to water bodies like the one proposed by Merit. Furthermore, the Court refused to apply the “reasonable use” balancing test that the Nestle court relied on. Instead, the Court noted that an unreasonable use of water has never been deemed an allowable use and held that Merit’s discharge is not an allowable use of water because it is manifestly unreasonable.
We believe the decisions rendered in the Anglers case are based upon issues that were thoroughly litigated. There are no sound reasons for a revision or even reconsideration, rather it appears to be no more than partisan politics.
A decision to reconsider will undermine citizens’ trust in the courts and their respect for the law. It will be an agenda driven decision made by an activist court. If the court then reverse its prior decision, no citizen would be able to rely on being protected by the law and the court. These are first steps towards anarchy.
Further information is available at the Anglers website