ANGLERS OF THE AuSABLE, INC v. DEPARTMENT OF ENVIRONMENTAL QUALITY , 488 Mich. 69 ( 2010 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
Alton Thomas Davis
FILED DECEMBER 29, 2010
STATE OF MICHIGAN
SUPREME COURT
ANGLERS OF THE AuSABLE, INC.,
MAYER FAMILY INVESTMENTS, LLC,
and NANCY A. FORCIER TRUST,
Plaintiffs-Appellants,
v Nos. 138863 to 138866
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and MERIT ENERGY
COMPANY,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
DAVIS, J.
In this case we determine whether defendant Merit Energy Company’s plan to
discharge contaminated water from an environmental cleanup site in the Manistee River
watershed into a previously unpolluted site in the AuSable River watershed is an
allowable use of water. We also determine in this case whether the Michigan Department
of Environmental Quality (DEQ) (which is now the Department of Natural Resources and
Environment) can be sustained as a defendant in an action brought under the Michigan
environmental protection act (MEPA), MCL 324.1701 et seq., when the DEQ is alleged
to have authorized activity that will harm the environment.
We hold that Merit’s discharge plan is not an allowable use of water because it is
manifestly unreasonable, and we further hold that the DEQ can be sustained as a
defendant in a MEPA action when the DEQ has issued a permit for activity that it is
alleged will cause environmental harm. Accordingly, we reverse the Court of Appeals’
judgment in part and remand the case for reinstatement of the trial court’s decision
holding the DEQ accountable for violating MEPA.
I. FACTS AND PROCEDURAL HISTORY
This case arises out of Merit’s proposed plan to discharge treated, but still partially
contaminated, water from the Manistee River watershed into the AuSable River water
system in an effort to clean a plume of contaminated groundwater.
In 2004, Merit acquired the Hayes 22 Central Production Facility (CPF) located in
Otsego County, Michigan. As a condition to purchasing the CPF, Merit entered into a
settlement agreement with the DEQ to remediate the plume of contaminated groundwater
that had originated from the CPF.
The exact size of the plume, which at the time was continuing to expand, is
unknown. The plume contains benzene, toluene, ethylbenzene, and xylenes and chlorides
contained in brine, among other contaminants. The plume is known to have
2
contaminated several residential drinking wells and may have contaminated other
residential wells as it continued to expand.
Merit evaluated a number of options for remediation and ultimately chose air
stripping—a process that forces a stream of air through water, causing hydrocarbons to
evaporate. 1 Merit submitted a corrective action plan to the DEQ to remediate 1.15
million gallons of plume water a day through the use of air stripping.
The plan was to send the 1.15 million gallons a day through a 1.3-mile pipeline
from the air-stripping site to be discharged into Kolke Creek. Kolke Creek forms the
headwater system for the AuSable River watershed. Kolke Creek feeds into Bradford
Creek, Lynn Lake, and the AuSable River. 2
The DEQ approved Merit’s corrective action plan and issued a general permit and
certificate of coverage allowing discharge of treated water from the air stripper into the
wetland area flowing into Kolke Creek. The DEQ also granted Merit an easement
through state-owned land to allow Merit to construct the pipeline from the air stripper to
the discharge point.
1
The air-stripping process does not remove any brines or chlorides from the water. Thus,
although the water is cleaner at discharge than when it was first removed from the ground
at the CPF, the water remains contaminated in some respects.
2
The plaintiffs in this case are either riparian owners along these waterways or users of
the waterways for recreational purposes such as fishing. The waterways are considered
prime trout-fishing locations because of their purity and mineral content.
3
Plaintiffs filed a complaint against Merit and the DEQ in the Otsego County
Circuit Court. Plaintiffs alleged violations of surface-water law, riparian law, and
MEPA. Plaintiffs sought an injunction against the discharge plan.
After a bench trial on plaintiffs’ complaint, the trial court issued an opinion and
injunction preventing Merit from discharging the air-stripped water into Kolke Creek.
The court made detailed findings of fact and concluded that the proposed discharge plan
would severely harm the AuSable River water system because of the increased flow of
water and the increased level of substances not previously found in Kolke Creek. 3 It
applied the “reasonable use balancing test” from Mich Citizens for Water Conservation v
Nestlé Waters North America Inc, 269 Mich App 25; 709 NW2d 174 (2005).
In applying the reasonable-use balancing test from Nestlé, the trial court concluded
that Merit’s proposed amount of discharge constituted an unreasonable use. The court
ruled that the proposed discharge, and the DEQ’s authorization of the discharge, violated
MEPA. However, in its injunction preventing the discharge, the court left open the
possibility that Merit could discharge treated water into Kolke Creek at a lower rate that
might be considered reasonable under the reasonable-use balancing test. 4
3
The trial court also made findings about whether Merit had properly obtained rights to
discharge the treated water through the state-land easement. However, because we do not
find those issues to be outcome-determinative in this appeal, we will not address them in
this opinion.
4
Merit contends that this case is now moot because it has abandoned the Kolke Creek
discharge plan and is instead treating the CPF contamination plume through another
method. However, as correctly argued by the plaintiffs, the trial court has left open the
door for Merit to discharge treated water into Kolke Creek at a lower than originally
4
All parties appealed in the Court of Appeals. In a unanimous opinion, the Court of
Appeals affirmed the trial court’s decision regarding the reasonableness of Merit’s
proposed discharge plan. Anglers of the AuSable, Inc v Dep’t of Environmental Quality,
283 Mich App 115; 770 NW2d 359 (2009). The Court applied the reasonable-use
balancing test and noted that the trial court had left open the possibility that Merit could
discharge treated water at a lower, more reasonable rate. Id. at 136-137. The Court of
Appeals also unanimously dismissed the DEQ as a defendant, applying this Court’s
precedent from Preserve the Dunes, Inc v Dep’t of Environmental Quality, 471 Mich
508; 684 NW2d 847 (2004).
Plaintiffs sought leave to appeal in this Court. We granted leave to appeal, asking
the parties to discuss, among other issues, whether Mich Citizens for Water Conservation
v Nestlé Waters North America Inc, 479 Mich 280; 737 NW2d 447 (2007), and Preserve
the Dunes were correctly decided. 5
II. STANDARD OF REVIEW
We review a trial court’s factual findings for clear error and its legal conclusions
de novo. Hendee v Putnam Twp, 486 Mich 556, 566; 786 NW2d 521 (2010). Whether
this Court’s decision in a previous case should be overruled is a question of law that this
Court reviews de novo. Bush v Shabahang, 484 Mich 156, 164; 772 NW2d 272 (2009).
proposed rate. Because there is still a court order keeping the Kolke Creek discharge
plan alive, we cannot treat this case as moot.
5
Anglers of the AuSable, Inc v Dep’t of Environmental Quality, 485 Mich 1067 (2010).
5
III. ANALYSIS
A. PRESERVE THE DUNES v DEP’T OF ENVIRONMENTAL QUALITY
In our order granting leave to appeal, we asked the parties to address whether this
Court’s opinion in Preserve the Dunes was correctly decided. After further review of the
Preserve the Dunes decision, we conclude that it was decided incorrectly and,
accordingly, we overrule it.
Preserve the Dunes involved a group of citizens suing the DEQ for authorizing a
permit for a sand dune mining operation 6 in violation of the sand dune mining act
(SDMA). MCL 324.63701 et seq. The dune that was to be mined had previously been
designated as a protected dune that could not be mined unless one of two exceptions
contained in the SDMA applied. The two exceptions were not applicable in that case;
therefore, the DEQ’s permit allowing the mining operation on the protected dune violated
the law.
The concerned citizens in that case filed a lawsuit against the DEQ under MEPA
to protect “the air, water, and other natural resources and the public trust in these
resources from pollution, impairment, or destruction.” MCL 324.1701(1). The majority
in Preserve the Dunes held that reviewing the DEQ’s permit decisions was outside the
judicial authority under MEPA. Preserve the Dunes, 471 Mich at 519. The majority
noted that MEPA provides for a private cause of action regarding damage to the
6
The mining operation was also sued, but the focus relevant to this case is the suit against
the DEQ.
6
environment. Id. at 516. The majority stated that the DEQ’s permit application review
was based on technical aspects of the application process, and not damage to the
environment itself. Id. at 519. The Court concluded that even if violation of the
technical aspects of the application process resulted in environmental damage, that level
of causation was not grounds for a private cause of action. The Court stated that the
permit process was “unrelated” to any subsequent environmental harm caused by the
permitted action. Id.
The Preserve the Dunes dissent correctly concluded that the majority’s holding
“that permit eligibility is unrelated to whether the conduct permitted will harm the
environment is untenable.” 7 Without a permit from the DEQ, a party such as the mining
operator in Preserve the Dunes or Merit in the instant case lacks the authority to
commence the conduct that will harm the environment. The permit from the DEQ serves
as the trigger for the environmental harm to occur. The permit process is entirely related
to the environmental harm that flows from an improvidently granted, or unlawful, permit.
Before a majority of this Court decided Preserve the Dunes, this Court had
previously decided other cases in which a permit application had been the subject of a
MEPA action. Until Preserve the Dunes, this Court had never ruled that a permit
decision was insulated from a MEPA action. 8 The majority’s decision in Preserve the
7
Id. at 533-534 (KELLY, J., dissenting).
8
See, e.g., Eyde v Michigan, 393 Mich 453, 454; 225 NW2d 1 (1975), Ray v Mason Co
Drain Comm’r, 393 Mich 294, 304-305; 224 NW2d 883 (1975), West Mich
Environmental Action Council v Natural Resources Comm, 405 Mich 741, 751; 275
7
Dunes frustrated the legislative intent behind MEPA, and it represented a departure from
this Court’s precedent. As the Preserve the Dunes dissent noted:
MEPA is intended to prevent conduct that is likely to harm the
environment as well as to stop conduct that is presently harming it. In
WMEAC [West Mich Environmental Action Council v Natural Resources
Comm, 405 Mich 741; 275 NW2d 538 (1979)], this Court ordered that a
permanent injunction be entered prohibiting the drilling of oil and gas wells
pursuant to a DNR permit. The “issuance of permits was properly before
the circuit court as conduct alleged to be likely to pollute, impair, or
destroy” natural resources under MEPA. WMEAC at 751. The drilling
would cause “apparently serious and lasting, though unquantifiable,
damage” to elk herd population. WMEAC at 760. This Court concluded that
the previous MEPA, MCL 691.1203(1), is violated whenever the effects of
permit issuance harm the environment to the requisite degree. WMEAC at
751, 760. [Preserve the Dunes, 471 Mich at 534 (KELLY, J., dissenting).]
Because the Preserve the Dunes opinion violated the legislative intent behind
MEPA, and because the opinion conflicted with this Court’s caselaw that came before it,
we hold that Preserve the Dunes was incorrectly decided to the extent that it insulated the
DEQ’s permit application process from review under MEPA.
There are further compelling justifications for overruling Preserve the Dunes. The
first is that MEPA is a statute that was enacted as part of the environmental protection
mandate to the Legislature contained in Article 4, § 52 of Michigan’s Constitution. In
Ray v Mason Co Drain Comm’r, 393 Mich 294, 304-306; 224 NW2d 883 (1975), this
Court stated:
Michigan’s Environmental Protection Act marks the Legislature’s
response to our constitutional commitment to the “conservation and
NW2d 538 (1979), and Nemeth v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641
(1998).
8
development of the natural resources of the state . . .” Const 1963, art 4,
§ 52 in its entirety reads:
“Section 52. The conservation and development of the natural
resources of the state are hereby declared to be of paramount public
concern in the interest of the health, safety and general welfare of the
people. The legislature shall provide for the protection of the air, water
and other natural resources of the state from pollution, impairment and
destruction.” (Emphasis added.)
Michigan’s EPA was the first legislation of its kind and has attracted
worldwide attention. The act also has served as a model for other states in
formulating environmental legislation. The enactment of the EPA signals a
dramatic change from the practice where the important task of
environmental law enforcement was left to administrative agencies without
the opportunity for participation by individuals or groups of citizens. Not
every public agency proved to be diligent and dedicated defenders of the
environment. The EPA has provided a sizable share of the initiative for
environmental law enforcement for that segment of society most directly
affected—the public.
The act provides private individuals and other legal entities with
standing to maintain actions in the circuit courts for declaratory and other
equitable relief against anyone “for the protection of the air, water and other
natural resources and the public trust therein from pollution, impairment or
destruction”. MCLA 691.1202(1); MSA 14.528(202)(1).
* * *
But the EPA does more than give standing to the public and grant
equitable powers to the circuit courts, it also imposes a duty on individuals
and organizations both in the public and private sectors to prevent or
minimize degradation of the environment which is caused or is likely to be
caused by their activities. [Emphasis added and citations omitted.]
The majority’s decision in Preserve the Dunes not only violated the Legislature’s
intent to protect the environment encapsulated in MEPA, it subverted the people’s will as
expressed in Michigan’s constitutional requirement that the Legislature “shall” protect
the environment.
9
Another compelling reason for overruling Preserve the Dunes is that it appears
from the instant case that the DEQ has done more than simply issue a permit that would
result in the harm of natural resources. It has also granted an easement over state land to
facilitate the harmful actions. Under Preserve the Dunes, the DEQ cannot be required to
account for its actions. By overruling Preserve the Dunes, this Court can restore the
accountability that was intended under MEPA.
Because the Preserve the Dunes decision to insulate DEQ permit decisions from
MEPA violated the Legislative intent behind MEPA, conflicted with previous caselaw
regarding MEPA, and subverted the will of the people contained in article 4 of
Michigan’s constitution, we overrule it. 9
B. NESTLÉ AND STANDING
In the order granting leave to appeal, we also asked the parties to brief whether
Nestlé was correctly decided. 10 However, Nestlé has already been overruled in part.
9
We do not overrule Preserve the Dunes without proper consideration of the principle of
stare decisis. The approach taken to stare decisis in any given case will be dependent on
the facts and circumstances presented. See Planned Parenthood of Southeastern
Pennsylvania v Casey, 505 US 833, 854-855; 112 S Ct 2791; 120 L Ed 2d 674 (1992).
Historically, many different approaches to stare decisis have been taken. See Petersen v
Magna Corp, 484 Mich 300; 773 NW2d 564 (2009); Univ of Mich Regents v Titan Ins
Co, 487 Mich 289, 314-317; ___ NW2d ___ (2010) (HATHAWAY, J., concurring). The
reasons given in Justice KELLY’s dissent in Preserve the Dunes, and the further reasons
given in this opinion, make clear that Preserve the Dunes must be overruled and the law
must be returned to how it was applied before Preserve the Dunes was incorrectly
decided.
10
We also asked the parties to brief whether an easement could grant Merit riparian
rights on land the state of Michigan owned. Under Thompson v Enz, 379 Mich 667; 154
NW2d 473 (1967), and its progeny, including Little v Kin, 249 Mich App 502; 644
10
One of the issues in Nestlé was whether the plaintiffs had standing to appear in
court to protect property from being affected by the defendant’s pumping of groundwater
that it intended to bottle and sell. At the time, a majority of this Court held that the
plaintiffs only had standing with respect to property that they owned or used, no more.
Nestlé, 479 Mich at 285. The majority relied on the theory of standing adopted in Lee v
Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001). Nestlé, 479 Mich at
294-295. But this Court has recently explained that statutes granting standing should be
applied as written, thus overruling the standing doctrine adopted in Lee and followed in
Nestlé. Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 371 & n 18; ___ NW2d
___ (2010) (LSEA). Accordingly, MEPA, which specifies that “any person may maintain
an action . . . 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,” should be applied as it is written. MCL 324.1701(1) (emphasis added).
We therefore need not address the standing issue from Nestlé. Plaintiffs in this
case have interests that differ from the citizenry at large. 11 LSEA, 487 Mich at 359. And,
even if they did not, it is clear that under MEPA “any person” has standing to maintain an
action protecting Michigan’s natural resources; indeed, the Attorney General admitted at
NW2d 375 (2002), riparian rights may be conveyed to a nonriparian landowner by
easement under certain circumstances. However, even assuming arguendo that the
proposed easement in this case is valid, we conclude that the proposed use is
unreasonable. Thus, it is unnecessary to consider this issue further.
11
Plaintiffs use or own property along waterways that would be affected under Merit’s
proposed discharge plan.
11
oral argument that that was the state’s position as well. Because plaintiffs most certainly
qualify under the statute’s designation of “any person,” plaintiffs would have standing
regardless of this Court’s decision in Nestlé.
C. REASONABLENESS OF THE PROPOSED KOLKE CREEK DISCHARGE
Nonetheless, this Court’s decision to overrule Nestlé in LSEA did not affect the
reasonable-use balancing test. In its Nestlé opinion, this Court explicitly declined to
“pass on the merits” of, among other things, the “reasonable use balancing test” that had
been applied by the Court of Appeals. 12 Thus, this Court has not passed judgment on the
merits of that test.
The parties have agreed that the reasonableness of the water’s use is the
determining factor in deciding water-use cases, 13 and they have also all noted that the
facts in this case are distinguishable from those in Nestlé. In Nestlé, the diverted water
was potable water being pumped out of the ground, packaged, and sold in many locations
in and out of Michigan. In the instant case, contaminated water is being pumped from the
ground in one watershed, treated and stripped of hydrocarbons but not fully
decontaminated, and then pumped as surface water into a separate, previously
uncontaminated watershed.
12
Nestlé, 479 Mich at 289 n 12, 291.
13
While the parties agree that the reasonableness of the water’s use is the determining
factor in deciding water-use cases, they do not agree on using the “reasonable use
balancing test” from Nestlé. We do not pass judgment on that test in this case because,
under any test and by any standard, the discharge plan at issue is manifestly
unreasonable.
12
Plaintiffs focus much of their attention on the seminal Michigan water-law case of
Dumont v Kellogg, 29 Mich 420 (1874), and its progeny14 for the proposition that water
cannot be diverted for an unreasonable use that would damage a riparian owner’s use of
the waterway. While it is true that Michigan courts have held that water should generally
not be diverted from a watershed, we find that argument unpersuasive here. We
distinguish Dumont and its progeny on the facts of this case.
Plaintiffs are seeking to protect the AuSable River watershed. Water is not being
diverted from the AuSable River watershed in this case. The water that is being diverted
is coming from the Manistee River watershed, and the reasonableness of merely diverting
water out of the Manistee River watershed is not at issue. Thus, the cases that plaintiffs
cite are not helpful on these facts.
It is clear from this Court’s water-law precedent cited in both sides’ briefs that an
unreasonable use of water has never been deemed an allowable use and is not now an
allowable use. 15 Defendants have presented no authority for the proposition that the
diversion of contaminated water from one source to an uncontaminated watershed should
14
Hall v City of Ionia, 38 Mich 493 (1878); Kennedy v Niles Water Supply Co, 173 Mich
474; 139 NW 241 (1913); Hoover v Crane, 362 Mich 36; 106 NW2d 563 (1960).
15
The cases cited include Dumont; Hall; Schenk v City of Ann Arbor, 196 Mich 75; 163
NW 109 (1917); Kennedy; and Hoover.
13
be considered reasonable. It would be incongruous to hold that it is reasonable to
decontaminate water by contaminating different water. 16
Furthermore, it would be unconscionable and destructive for this Court to
determine that it is reasonable to spread dangerous contamination throughout Michigan
as we have described. The necessarily resulting harm would be spread not only to
immediate downstream users but, in the end, to anyone in Michigan who relies, directly
or indirectly, on our state’s water remaining clean.
Accordingly, we affirm the lower courts’ rulings preventing Merit’s proposed
discharge from the CPF into Kolke Creek. 17
IV. CONCLUSION
We hold that Merit’s discharge plan is not an allowable use of water because it is
manifestly unreasonable. We hold that the DEQ can be sustained as a defendant in a
MEPA action for its permitting decisions. We uphold the lower courts’ determination
that the proposed discharge plan is unreasonable, and we remand the case for
16
We do not hold that diverting water from one watershed to another is ipso facto
unreasonable. Our concern today is with the discharge of contaminated water into an
uncontaminated watershed.
17
In reaching this decision, it is important to note that we focus our ruling on the
reasonableness of using Kolke Creek as a discharge point for contaminated water
removed from a separate watershed. We are not basing this decision on Merit’s status as
a riparian or groundwater user. We are not basing this decision on Merit’s status as an
off-tract or on-tract water user. And we are not basing this decision on the fact that Merit
is seeking to divert water out of the Manistee River watershed.
14
reinstatement of the trial court’s decision holding the DEQ accountable for violating
MEPA.
Affirmed in part, reversed in part, and remanded.
Alton Thomas Davis
Diane M. Hathaway
15
STATE OF MICHIGAN
SUPREME COURT
ANGLERS OF THE AuSABLE, INC.,
MAYER FAMILY INVESTMENTS, LLC,
and NANCY A. FORCIER TRUST,
Plaintiffs-Appellants,
v Nos. 138863 to 138866
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and MERIT ENERGY
COMPANY,
Defendants-Appellees.
KELLY, C.J. (concurring).
I concur in parts I, II, III(A), III(B), and IV of the lead opinion. I concur in the
result only with respect to part III(C) of the lead opinion. I write separately to articulate
my preferred approach to stare decisis.
Even when a decision is wrongly decided, we must apply the doctrine of stare
decisis when deciding whether to overrule it. Our analysis should always begin with a
presumption that upholding precedent is the preferred course of action. 1 That
presumption should prevail unless effectively rebutted by the conclusion that a
1
Petersen v Magna Corp, 484 Mich 300, 317; 773 NW2d 564 (2009) (opinion by
KELLY, C.J.).
1
compelling justification exists to overturn it. 2 By contrast, when analyzing precedent that
itself represents a departure from established caselaw, we should apply a decreased
presumption in favor of upholding precedent. 3
In determining whether a compelling justification exists to overturn precedent, the
Court may consider numerous evaluative criteria, none of which, standing alone, is
dispositive. These criteria include, but are not limited to, whether (1) the precedent has
proved to be intolerable because it defies practical workability, (2) reliance on the
precedent is such that overruling it would cause a special hardship and inequity, (3)
related principles of law have so far developed since the precedent was pronounced that
no more than a remnant of it has survived, (4) facts and circumstances have so changed,
or have come to be seen so differently, that the precedent no longer has significant
application or justification, (5) other jurisdictions have decided similar issues in a
different manner, (6) upholding the precedent is likely to result in serious detriment
prejudicial to public interests, and (7) the prior decision was an abrupt and largely
unexplained departure from then-existing precedent. 4
Not all of these factors will be applicable in a given case. Nor is there a magic
number of factors that must favor overruling a case in order to establish the requisite
2
Id.3
Univ of Mich Regents v Titan Ins Co, 487 Mich 289, 303; ___ NW2d ___ (2010), citing
Adarand Constructors, Inc v Pena, 515 US 200, 233-234; 115 S Ct 2097; 132 L Ed 2d
158 (1995).
4
Petersen, 484 Mich at 320.
2
compelling justification. Rather, the conclusion about overturning the precedent should
be reached on a case-by-case basis.
I believe that Preserve the Dunes, Inc v Dep’t of Environmental Quality 5 was
wrongly decided with respect to whether the Department of Environmental Quality
(DEQ) may be liable for an alleged violation of the Michigan environmental protection
act (MEPA) by issuing a permit. 6 However, this fact alone does not constitute the
requisite compelling justification to overrule the decision. Instead, we must examine
additional factors.
First, I consider whether Preserve the Dunes has proved intolerable because it
defies practical workability. I believe that it does. The Preserve the Dunes majority held
that the DEQ’s issuance of a permit is “unrelated to” alleged environmental harm and
thus insulated from scrutiny under MEPA. 7 This conclusion was directly contrary to a
simple reading of MEPA. MCL 324.1701(1) provides, in pertinent part:
any person may maintain an action in the circuit court . . . 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 . . . from pollution, impairment, or destruction. [Emphasis
added.]
5
Preserve the Dunes, Inc v Dep’t of Environmental Quality, 471 Mich 508; 684 NW2d
847 (2004).
6
MCL 324.1701 et seq.
7
Preserve the Dunes, 471 Mich at 511.
3
Under the act, a plaintiff makes a prima facie case by showing “that the conduct of the
defendant . . . is likely to . . . destroy . . . natural resources or the public trust in these
resources.” 8
The Preserve the Dunes majority’s conclusion that eligibility for a permit is
unrelated to whether the conduct permitted will harm the environment is untenable.
Issuance of a permit to an ineligible party to engage in an activity that will harm the
environment will certainly allow “conduct . . . likely to pollute, impair, or destroy . . .
natural resources or the public trust in these resources” under MCL 324.1703(1). Indeed,
before Preserve the Dunes, this Court observed that a violation of a permitting procedure
can support a prima facie claim under MEPA. 9 Thus, by gutting the environmental
protections afforded to Michigan citizens by MEPA, Preserve the Dunes mocked our
Legislature’s intent to prevent environmental harm. Accordingly, Preserve the Dunes
was inherently unworkable under the statutory provisions provided by the Legislature.
Second, I consider whether reliance interests weigh in favor of overruling
Preserve the Dunes. I conclude that they do. Preserve the Dunes is of relatively recent
vintage, having been decided a mere six years ago. Hence, any reliance on its holding
has been of limited duration. Moreover, Preserve the Dunes represented a sea change in
8
MCL 324.1703(1).
9
A “plaintiff’s prima facie case is ‘not restricted to actual environmental degradation but
also encompasses probable damage to the environment as well.’” Nemeth v Abonmarche
Dev, Inc, 457 Mich 16, 25; 576 NW2d 641 (1998), quoting Ray v Mason Co Drain
Comm’r, 393 Mich 294, 309; 224 NW2d 883 (1975).
4
one area of the law and toppled settled interpretations of MEPA that had existed for
nearly 30 years. 10 In doing so, Preserve the Dunes disrupted the reliance interests of
Michigan citizens who relied on MEPA’s provisions to bring suit for alleged
environmental pollution, impairment, or destruction.
I recognize that there exists a competing reliance interest in the continuing validity
of Preserve the Dunes: that of the DEQ in defending its permitting decisions. Yet
Preserve the Dunes’ annihilation of the crux of a MEPA complainant’s claim—the desire
to quell environmental degradation—effectively removed altogether the ability to
challenge permitting decisions as allowed by MEPA. I conclude that, while the DEQ’s
reliance on this interpretation is understandable, it is not sufficient to preclude overruling
Preserve the Dunes given the extent of prejudice to those availing themselves of MEPA’s
straightforward language.
Third, I consider whether related principles of law have developed since Preserve
the Dunes was decided. This factor is inapplicable to my stare decisis analysis in this
case, as no intervening change in the law further supports or undermines the continuing
legitimacy of Preserve the Dunes.
Fourth, I examine whether facts and circumstances have so changed, or have come
to be seen so differently, that Preserve the Dunes has been robbed of significant
justification. Like the previous factor, I discern no factual or circumstantial changes that
10
See, e.g., Eyde v Michigan, 393 Mich 453, 454; 225 NW2d 1 (1975); Ray, 393 Mich at
304-305; West Mich Environmental Action Council v Natural Resources Comm, 405
Mich 741, 751; 275 NW2d 538 (1979); Nemeth, 457 Mich 16.
5
counsel for or against overruling Preserve the Dunes. Therefore, this factor is also
inapplicable to my analysis.
Fifth, I consider whether other jurisdictions have decided similar issues in a
different manner. This factor is likewise inapplicable to my stare decisis analysis.
MEPA is unique to our state. Although other states’ environmental legislation may share
the fundamental underpinnings of MEPA, judicial interpretations thereof have evolved
independently of those of other states with similar environmental schemes. Thus, other
jurisdictions’ interpretations of similar statutes are unhelpful to our analysis in this case.
Sixth, I examine whether upholding Preserve the Dunes is likely to result in
serious detriment prejudicial to public interests. This factor weighs heavily in favor of
overruling Preserve the Dunes. In one swoop of a pen, the Preserve the Dunes majority
obliterated environmental protection statutes enacted by the Legislature. As persuasively
noted by Justice DAVIS, MEPA was enacted in response to our state’s constitutional
commitment to the conservation and development of the natural resources. Our
constitution provides:
The conservation and development of the natural resources of the
state are hereby declared to be of paramount public concern in the interest
of the health, safety and general welfare of the people. The legislature
shall provide for the protection of the air, water and other natural
resources of the state from pollution, impairment and destruction.[11]
Furthermore, as we stated in Ray:
11
Const 1963, art 4, § 52 (emphasis added).
6
Michigan’s EPA was the first legislation of its kind and has attracted
worldwide attention. The act also has served as a model for other states in
formulating environmental legislation. The enactment of the EPA signals a
dramatic change from the practice where the important task of
environmental law enforcement was left to administrative agencies without
the opportunity for participation by individuals or groups of citizens. Not
every public agency proved to be diligent and dedicated defenders of the
environment. The EPA has provided a sizable share of the initiative for
environmental law enforcement for that segment of society most directly
affected—the public.
* * *
But the EPA does more than give standing to the public and grant
equitable powers to the circuit courts, it also imposes a duty on individuals
and organizations both in the public and private sectors to prevent or
minimize degradation of the environment which is caused or is likely to be
caused by their activities.[12]
Thus, whereas MEPA represents the culmination of the Legislature’s deliberative
process, Preserve the Dunes undermined the Legislature’s decision to allow challenges to
both real and potential harms to the environment. The impact of Preserve the Dunes was
undoubtedly felt not only by the environment, but by the public. The citizens of
Michigan were stripped of their ability to enforce environmental protection mechanisms
granted by the Legislature.
Finally, I consider whether Preserve the Dunes represented an abrupt and largely
unexplained departure from precedent. I conclude that this factor also weighs heavily in
favor of overruling Preserve the Dunes. As previously noted, Preserve the Dunes
12
Ray, 393 Mich at 304-306.
7
implicitly overruled numerous previous decisions of this Court interpreting MEPA. 13
Those decisions stood as principled interpretations of MEPA until Preserve the Dunes
unexpectedly swept them aside decades later. Therefore, Preserve the Dunes represented
an abrupt and unexplained departure from precedent.
In summary, Preserve the Dunes (1) is unworkable because it usurped the
Legislature’s grant of a cause of action regarding environmental harm, (2) caused serious
detriment prejudicial to public interests, and (3) represented an abrupt and largely
unexplained departure from precedent. Accordingly, I conclude that a compelling
justification exists for overruling it.
Marilyn Kelly
Michael F. Cavanagh
13
See n 10 of this opinion.
8
STATE OF MICHIGAN
SUPREME COURT
ANGLERS OF THE AUSABLE, INC;
MAYER FAMILY INVESTMENTS, LLC;
and NANCY A. FORCIER TRUST,
Plaintiffs-Appellants,
v No. 138863 to 138866
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and MERIT ENERGY
COMPANY,
Defendants-Appellees.
YOUNG, J. (dissenting).
I respectfully, but vigorously, dissent from the extraordinarily lawless and
profoundly dangerous lead opinion and from the results reached by a majority of this
Court.
This case represents one of the most shocking examples of the assertion of power
that is not grounded in the constitution or any statute. This case is simply an empty
vehicle to reach desired policy results. 1 This is so because this case was moot in June
2010 when the majority inexplicably denied defendants’ meritorious motion to dismiss
1
The shocking paucity of legal authority relied on by the lead opinion is a prime
indicator that no more than naked judicial policymaking is afoot.
for mootness; 2 this case was moot in November 2010 when this Court heard oral
arguments on the case, despite its obvious mootness; and this case remains moot today,
despite the majority’s raw exercise of power in deciding a nonjusticiable case. The lead
opinion does not even attempt to respond to this dissent because there are no satisfactory
responses. Because I continue to believe that this Court should not decide moot cases, I
would dismiss this appeal.
Unwilling to forgo the opportunity to resolve a nonexistent conflict to attack
precedent with which they disagree, the lead and concurring opinions overturn this
Court’s decision in Preserve the Dunes v Dep’t of Environmental Quality 3 that the
Department of Environmental Quality (DEQ) 4 may not be sued under the Michigan
environmental protection act (MEPA) 5 for issuing a permit. Indeed, the lead and
concurring opinions now conclude that the DEQ may be sued even if the permit it issued
was already successfully challenged under the appropriate administrative procedures.
Furthermore, the lead opinion fashions a new common law rule governing water rights
out of whole cloth and without citing any authority for its new categorical rule. Instead,
the lead opinion’s categorical rule usurps the ability of the DEQ’s environmental experts
to determine what action appropriately protects the natural resources held in public trust,
2
Anglers of the AuSable, Inc v Dep’t of Environmental Quality, 486 Mich 982 (2010).
3
Preserve the Dunes v Dep’t of Environmental Quality, 471 Mich 508; 684 NW2d 847
(2004).
4
The DEQ is now part of the Michigan Department of Natural Resources and
Environment (DNRE).
5
MCL 324.1701 et seq.
2
and it usurps the ability of lower courts to judge the validity of those expert analyses by
interposing a categorical rule prohibiting “contamination,” regardless of actual harm to
the relevant watercourse. Because Michigan law has not heretofore provided for such a
categorical rule, I must vigorously dissent from this palpably erroneous decision. Again,
the lead opinion reaches its decision on the substantive merits of this case without
responding to any of the critiques I make of its argument.
I. FACTS AND PROCEDURAL HISTORY
Defendant Merit Energy Company owns land in the Manistee River watershed that
contains a plume of contaminated groundwater. When Merit purchased the land, the
contaminated plume already existed and threatened private wells for drinking water.
Merit’s purchase of the land was contingent on an agreement with the DEQ requiring
Merit to remediate the plume. Accordingly, Merit devised a corrective action plan to
treat the contaminated water and to discharge the treated water into Kolke Creek, part of
the AuSable River watershed. To effect this plan, Merit obtained an easement from the
Michigan Department of Natural Resources (DNR) 6 to “place, construct, operate, repair
and maintain [a] Pipeline” beginning on Merit’s property and ending at Kolke Creek.
Merit also sought DEQ approval of its plan. The DEQ issued a certificate of coverage
(COC), which affirmed that the proposed discharge was consistent with a general permit
that allowed “discharges of wastewater contaminated by gasoline and/or related
6
The DNR is now part of the DNRE. However, at the time the DNR granted Merit an
easement, it was a separate executive agency.
3
petroleum products . . . .” Therefore, Merit received the requisite certification that it
could discharge under “a valid national or state permit . . . .” 7
Plaintiffs include riparian owners along Kolke Creek. They challenged the COC
in a contested case hearing pursuant to the Administrative Procedures Act. 8 After the
administrative referee affirmed the DEQ’s decision, plaintiffs appealed by right to the
Otsego Circuit Court. In addition to appealing the contested case decision, plaintiffs
brought original claims against defendants for alleged MEPA violations and alleged
violations of plaintiffs’ common law riparian rights. The circuit court separated
plaintiffs’ appeal of the contested case decision from their original claims and remanded
the contested case decision for review by the director of the DEQ. The director affirmed
the administrative decision to issue Merit a COC. On appeal, the circuit court vacated the
COC because the discharge allowed under the COC contained contaminants beyond
those allowed under the general permit the COC purported to enforce. The circuit court’s
decision invalidating the COC remains in force. 9
The circuit court conducted a 13-day bench trial to consider plaintiffs’ common
law and MEPA claims. The court held that the DNR’s proposed easement did not
7
Mich Admin Code, R 323.2106(1).
8
MCL 24.201 et seq.
9
The Court of Appeals denied defendants’ delayed application for leave to appeal. This
Court initially remanded the appeal to the Court of Appeals for consideration as on leave
granted, 482 Mich 1078 (2008), but subsequently granted reconsideration and denied the
application, 483 Mich 887 (2009). Accordingly, the circuit court’s vacation of the COC
remains intact.
4
provide Merit with the necessary riparian rights to discharge anything into Kolke Creek. 10
The circuit court also concluded that the proposed discharge would violate plaintiffs’
riparian rights. In reaching this decision, the court applied the “reasonable use balancing
test” that the Court of Appeals articulated in Mich Citizens for Water Conservation v
Nestlé Waters North America Inc. 11 Because “[t]he proposed use is for the benefit of
distant non-riparian parcels at the expense of local riparian rights” and because “[t]he
delicate ecosystem of Kolke Creek is not a suitable location for the discharge of treated
water in the quantities proposed,” the court concluded that the proposed discharge would
constitute an unreasonable use of Kolke Creek. Accordingly, it enjoined defendants from
discharging the treated water into Kolke Creek in the volume proposed, 1.15 million
gallons a day. The court also determined that plaintiffs had presented a prima facie
MEPA violation with respect to both Merit and the DEQ.
Defendants appealed in the Court of Appeals, and plaintiffs filed a cross-appeal in
that court. The DEQ challenged the circuit court’s ruling that it could be sued on the
theory that its COC violated MEPA. Merit challenged the circuit court’s conclusions
regarding the scope of the DNR’s easement, the application of the “reasonable use
balancing test” in determining that the proposed discharge was unreasonable, and the
10
The circuit court subsequently clarified its order to indicate that the DNR could assign
its riparian rights to Merit, but that it had not done so in the easement before the court.
11
Mich Citizens for Water Conservation v Nestlé Waters North America Inc, 269 Mich
App 25; 709 NW2d 174 (2005), aff’d in part, rev’d in part, and remanded on other
grounds 479 Mich 280 (2007).
5
application of MEPA and the common law to the proposed discharge. 12 On cross-appeal,
plaintiffs argued that the circuit court should not have applied the Nestlé “reasonable use
balancing test” because, as part of the common law pertaining to groundwater, it was
inapplicable to their surface water riparian rights.
A unanimous Court of Appeals panel reversed in part the circuit court’s ruling. 13
Citing this Court’s opinion in Preserve the Dunes, 14 the Court of Appeals concluded that
the DEQ’s administrative decision to issue permits to Merit did not violate MEPA. The
Court of Appeals also reversed the circuit court’s ruling on the scope of the DNR’s
easement to Merit and concluded that the DNR conveyed the right to discharge water,
which the panel characterized as “inherently riparian and therefore connected to, rather
than apart from, the land.” 15 However, the Court of Appeals affirmed the circuit court’s
application of the “reasonable use balancing test,” 16 thereby leaving in place the
injunction against Merit’s proposed discharge.
Plaintiffs sought leave to appeal in this Court, claiming that this Court should,
among other requested relief, overturn the “reasonable use balancing test” and this
Court’s decisions in Preserve the Dunes and Mich Citizens for Water Conservation v
12
Defendants also raised several evidentiary errors, none of which are at issue in the
instant appeal.
13
Anglers of the AuSable, Inc v Dep’t of Environmental Quality, 283 Mich App 115; 770
NW2d 359 (2009).
14
Preserve the Dunes, 471 Mich at 512.
15
Anglers, 283 Mich App at 131-132.
16
Id. at 136.
6
Nestlé Waters North America Inc. 17 Defendant Merit did not cross-appeal. This Court
granted plaintiffs’ application for leave to appeal on January 29, 2010, and specifically
asked the parties to brief, among other issues, “whether Michigan Citizens v Nestlé
Waters . . . and Preserve the Dunes v DEQ . . . were correctly decided.” 18
In the intervening period, however, Merit quitclaimed its interest in the easement
back to the newly combined Department of Natural Resources and Environment and
provided thorough documentation to this Court to prove that it had done so. Accordingly,
Merit moved to dismiss, claiming that plaintiffs’ appeal was moot because Merit had
abandoned its plan to discharge water into Kolke Creek, as evidenced by its
relinquishment of the DNR easement. Because Merit no longer had physical access to
Kolke Creek, it argued that it could not violate MEPA or plaintiffs’ common law riparian
rights in the way plaintiffs alleged. Further, Merit offered proof that it had filed for a
new groundwater discharge permit to achieve its treatment goals by an alternative plan
that would avoid discharging treated water into Kolke Creek. Nevertheless, a majority of
this Court denied Merit’s motion to dismiss for mootness on June 18, 2010. 19
17
Mich Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich
280; 737 NW2d 447 (2007).
18
Anglers of the AuSable, Inc v Dep’t of Environmental Quality, 485 Mich 1067 (2010)
(citations omitted).
19
Anglers, 486 Mich 982.
7
II. STANDARD OF REVIEW
This case implicates issues of constitutional law, statutory interpretation, and the
common law. Each of these issues is a question of law, which this Court reviews de
novo. 20
III. JUSTICIABILITY
A. BACKGROUND
This Court has the constitutional authority to exercise only the judicial power, not
“powers properly belonging to another branch . . . .” 21 The people of Michigan have
ratified this “cardinal principle” 22 of republican government into each of their successive
constitutions since the first, the Michigan Constitution of 1835. 23 Moreover, this
principle is “‘in harmony with American political theory . . . .’” 24 Indeed, the drafters of
the United States Constitution made it clear that each branch of government could not
20
Little v Hirschman, 469 Mich 553, 557; 677 NW2d 319 (2004).
21
Const 1963, art 3, § 2.
22
Civil Serv Comm v Auditor General, 302 Mich 673, 683; 5 NW2d 536 (1942).
23
Const 1908, art 4, § 2 (“No person belonging to one department shall exercise the
powers properly belonging to another, except in the cases expressly provided in this
constitution.”); Const 1850, art 3, § 2 (“No person belonging to one department shall
exercise the powers properly belonging to another, except in the cases expressly provided
in this constitution.”); Const 1835, art 3, § 1 (“The powers of the government shall be
divided into three distinct departments; the Legislative, the Executive and the Judicial;
and one department shall never exercise the powers of another, except in such cases as
are expressly provided for in this constitution.”).
24
Civil Serv Comm, 302 Mich at 683, quoting Wood v State Admin Bd, 255 Mich 220,
224; 238 NW 16 (1931).
8
exercise the powers of the other two branches. 25 James Madison considered the principle
of separation of powers essential to the operation of the federal government:
The accumulation of all powers, legislative, executive, and judiciary,
in the same hands, whether of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced the very definition of
tyranny. Were the federal Constitution, therefore, really chargeable with
the accumulation of power, or with a mixture of powers, having a
dangerous tendency to such an accumulation, no further arguments would
be necessary to inspire a universal reprobation of the system.[ 26]
Madison went on to explain that, despite the strong disagreements between federalists
and antifederalists over the proper scope of the federal government, all agreed that the
tripartite form of government was sacrosanct:
It is agreed on all sides, that the powers properly belonging to one of
the departments ought not to be directly and completely administered by
either of the other departments. It is equally evident, that none of them
ought to possess, directly or indirectly, an overruling influence over the
others, in the administration of their respective powers.[ 27]
25
See US Const, art I, § 1 (“All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House of
Representatives.”) (emphasis added); US Const, art II, § 1 (“The executive Power shall be
vested in a President of the United States of America.”) (emphasis added); US Const, art
III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and establish.”)
(emphasis added).
26
Madison, The Federalist No. 47.
27
Madison, The Federalist No. 48.
9
In the nearly two and a quarter centuries since the United States Constitution’s
ratification, the separation of powers doctrine has become “[p]erhaps the most
fundamental doctrine in American political and constitutional thought . . . .” 28
Although the Michigan Constitution does not expressly define “the judicial
power,” as early as 1859, this Court limited the judicial power to “the power to hear and
determine controversies between adverse parties, and questions in litigation.” 29 Justice
THOMAS COOLEY wrote:
[A] marked difference exists between the employment of judicial
and legislative tribunals. The former decide upon the legality of claims and
conduct, and the latter make rules upon which, in connection with the
constitution, those decisions should be founded. It is the province of judges
to determine what is the law upon existing cases.[ 30]
Justice CHAMPLIN applied this principle in Risser v Hoyt, explaining:
[T]he exercise of judicial power in its strict legal sense can be
conferred only upon courts named in the Constitution. The judicial power
referred to is the authority to hear and decide controversies, and to make
binding orders and judgments respecting them.[ 31]
Thus, there is more than a century and a half of authority from this Court that
limits the constitutional power of the judiciary to deciding live cases and controversies
28
Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 418; ___ NW2d ___ (2010)
(CORRIGAN, J., dissenting).
29
Daniels v People, 6 Mich 381, 388 (1859).
30
Cooley, Constitutional Limitations (1st ed), p 92 (emphasis added).
31
Risser v Hoyt, 53 Mich 185, 193; 18 NW 611 (1884).
10
between interested parties. Moreover, the current constitutionally defined exceptions to
this rule 32 help to prove the rule itself:
In considering whether the Court should have the power to issue
advisory opinions in nonadversarial proceedings at the request of other
branches of government, the delegates’ entire discussion was clearly
premised on the unquestioned assumption that the judicial power,
generally, was rooted in a case or controversy requirement. At the outset,
Delegate Harold Norris explicitly asked with regard to the proposed
section: “Does that mean that as far as this committee is concerned, they do
not wish to preserve the traditional notion that there must be a case or
controversy presented before the court may exercise its judicial power?” 1
Official Record, Constitutional Convention 1961, p 1544 (emphasis added).
When the question was raised whether the power to issue an advisory
opinion would be equivalent to the courts’ preexisting power to issue
declaratory judgments, Delegate Eugene Wanger similarly specified that
the courts’ preexisting power, even in the arena of declaratory judgments,
distinctly required “an actual controversy between individuals . . . .” Id. at
1545. Delegate Raymond King may have expressed the understanding
most clearly when he remarked:
“We are indeed contemplating a very serious change in what I think
to be the history and the tradition of justice in this country. Mr. Wanger
has pointed out the troubles that the Massachusetts supreme court got into
when they allowed themselves to leave the theory of case and controversy.”
[Id. at 1546 (emphasis added).]
Indeed, even with regard to the limited expansion of judicial power
represented by the proposed advisory opinion provision, delegates were
expressly concerned that it would “adversely affect[] the separation of
powers doctrine . . . .” Id. at 1545 (Delegate Wanger); see also id. at 1546
(Delegate Jack Faxon indicating that the convention “should be wary of any
violation of the separation of powers”); id. at 1547 (Delegate King stating:
“I think we have established through the English common law and our
32
See Const 1963, art 9, § 32 (conferring standing upon “[a]ny taxpayer of the state” to
bring suit to enforce the provisions of the Headlee Amendment); Const 1963, art 11, § 5
(empowering “any citizen of the state” to bring injunctive or mandamus proceedings to
enforce the civil service laws of the state); Const 1963, art 3, § 8 (allowing either house
of the Legislature or the Governor to request that this Court issue an advisory opinion on
the “constitutionality of legislation”).
11
adherence thereto a system of justice, a system of separation of powers
which has proven itself, and I think we ought to be very reluctant at this
time to try something new.”).[33]
More recently, this Court has articulated the following core definition of the
judicial power:
The “judicial power” has traditionally been defined by a
combination of considerations: the existence of a real dispute or case or
controversy; the avoidance of deciding hypothetical questions; the plaintiff
who has suffered real harm; the existence of genuinely adverse parties; the
sufficient ripeness or maturity of a case; the eschewing of cases that are
moot at any stage of their litigation; the ability to issue proper forms of
effective relief to a party; the avoidance of political questions or other non-
justiciable controversies; the avoidance of unnecessary constitutional
issues; and the emphasis upon proscriptive as opposed to prescriptive
decision making.
Perhaps the most critical element of the “judicial power” has been its
requirement of a genuine case or controversy between the parties, one in
which there is a real, not a hypothetical, dispute, Muskrat v United States,
219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in which the
plaintiff has suffered a “particularized” or personal injury. Massachusetts v
Mellon, 262 US 447, 488; 43 S Ct 597; 67 L Ed 2d 1078 (1923). Such a
“particularized” injury has generally required that a plaintiff must have
suffered an injury distinct from that of the public generally. Id.[ 34]
This case involves an issue central to this Court’s constitutional exercise of the
judicial power: mootness. 35
33
Lansing Sch Ed Ass’n, 487 Mich at 423-425 (CORRIGAN, J., dissenting).
34
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 615; 684 NW2d
800 (2004). Nat’l Wildlife was overruled by Lansing Sch Ed Ass’n, 487 Mich 349.
35
This Court also asked the parties to brief whether Nestlé was correctly decided. Nestlé
involved an aspect of this Court’s standing doctrine: the injury-in-fact requirement. In
that case, this Court held that “[w]here the plaintiff claims an injury related to the
environment, this Court lacks the ‘judicial power’ to hear the claim if the plaintiff cannot
aver facts that he has suffered or will imminently suffer a concrete and particularized
12
B. ANALYSIS
The long-established mootness doctrine prevents courts from hearing abstract
questions of law in cases that no longer contain live controversies. This Court has
recently reaffirmed that moot questions generally cannot be adjudicated. 36 People v
Richmond is merely the most recent affirmation of this well-established principle and is
entirely consistent with over a century of precedent of this Court.
Street R Co of East Saginaw v Wildman, an 1885 case of this Court, is an
especially apt application of the mootness doctrine. 37 In Street R Co, the plaintiff railroad
sought to enjoin the defendant from moving a building along its railroad tracks “to the
great interruption of its business and profits, the serious inconvenience of the public, and
the hindrance and delay of the United States mails which it carried . . . .” 38 Shortly after
the trial court dismissed the plaintiff’s claim, but before the plaintiff appealed in this
Court, the defendant moved the building, thereby negating any ability for a court to
prevent the claimed harm through the injunctive relief sought. On appeal, this Court
determined that “[i]f the complainant was ever entitled to the [equitable] relief prayed for,
injury in fact.” Nestlé, 479 Mich at 295. It is improvident for this Court to consider the
broader question that Nestlé presented because there is no serious doubt that plaintiffs
have standing under Nestlé.
36
People v Richmond, 486 Mich 29, 35-41; 782 NW2d 187 (2010).
37
Street R Co of East Saginaw v Wildman, 58 Mich 286; 25 NW 193 (1885).
38
Id.13
we cannot now make any decree to aid it” because “[w]e can hardly prevent [the
defendant] from doing what has already been done.” 39
In a subsequent case, Anway v Grand Rapids R Co, this Court further articulated
the scope of the judicial power as it related to moot questions:
“Courts of judicature are organized only to decide real controversies
between actual litigants. When, therefore, it appears, no matter how nor at
what stage, that a pretended action is not a genuine litigation over a
contested right between opposing parties, but is merely the proffer of a
simulated issue by a person dominating both sides of the record, the court,
from a sense of its own dignity, as well as from regard to the public
interests, will decline a determination of the fabricated case so fraudulently
imposed upon it.”[ 40]
The Court concluded with a nonexhaustive list of cases in which the Michigan Supreme
Court had previously “declined to consider abstract questions of law and which [it]
declined to decide where our conclusions could not be made effective by final judgment,
decree, and process . . . .” 41
39
Id. at 287.
40
Anway v Grand Rapids R Co, 211 Mich 592, 612-613; 179 NW 350 (1920), quoting
Judson v Flushing Jockey Club, 14 Misc 350; 36 NYS 126, 127 (NY Common Pleas,
1895).
41
Anway, 211 Mich at 622, citing Schouwink v Ferguson, 191 Mich 284; 157 NW 726(1916) (involving mandamus against a municipality to issue a license to operate a
motorbus business that, by its own terms, would have expired before the writ of
mandamus could have entered); Carlson v Wyman, 189 Mich 402; 155 NW 418 (1915)
(involving mandamus against a municipality to issue a liquor license that, by its own
terms, would have expired before the writ of mandamus could have entered); Howe v
Doyle, 187 Mich 655; 154 NW 62 (1915) (involving an appeal of an injunction
prohibiting the Michigan Securities Commission from enforcing a blue sky law that the
Legislature had since repealed); Street R Co, 58 Mich 286; Hicks v J B Pearce Co, 158
Mich 502; 122 NW 1087 (1909) (involving an injunction prohibiting the sale of chattels
that had already been sold); Brown, ex rel Van Buren v Lawrence, 197 Mich 178; 163
14
The facts of this case make clear that Merit no longer has the physical means of
discharging treated water into Kolke Creek, and the circuit court vacated the certificate
of coverage issued by the DEQ. Thus, the very harms that plaintiffs sought to enjoin no
longer exist. Merit has no legal means to injure plaintiffs. 42 The plain fact that the lead
opinion ignores is that this Court simply cannot remedy harms that cannot now possibly
occur. 43 Stunningly, all of this is a matter of indifference to those who subscribe to the
lead opinion’s result. Apparently, the conclusive facts of the case are of no moment or
NW 862 (1917) (involving a quo warranto proceeding questioning the legitimacy of a
corporate officer’s ouster after that officer had since been elected again to the corporate
board); Ideal Furnace Co v Int’l Molders’ Union, 204 Mich 311; 169 NW 946 (1918)
(involving an appeal of a contempt citation that had since been discharged by payment of
the disputed fine); Blickle v Grand Rapids Bd of Ed, 210 Mich 196; 177 NW 385 (1920)
(involving mandamus against a school board to admit a student who had since become
too old to attend the school); Tierney v Union Sch Dist of Bay City, 210 Mich 424; 177
NW 955 (1920) (involving an appeal seeking an injunction prohibiting a school board
from expending monies to campaign for a ballot proposal after the election had already
occurred).
42
Further, any renewed plan to discharge water into Kolke Creek would require Merit to
undertake anew not only the DEQ’s permitting process, which plaintiffs may challenge
through the appropriate administrative process, but also the negotiation of a new
easement with a riparian landowner.
43
The conclusion that the harm plaintiffs feared cannot possibly occur is further
strengthened by evidence that Merit is heavily invested in an alternative plan for
discharge. Merit’s discharge permit and corrective action plan have been modified to
allow its alternative plan. Merit is now discharging the water by alternative means, albeit
with considerable costs to the company. Specifically, Merit relates that its current
modified permit allows for a much lower discharge volume, which will extend the time
required to clean up the plume that previously threatened the surrounding private
drinking wells. Further, the new plan required Merit to clear-cut 40 acres of forest in
order to construct infiltration basins.
15
hindrance when the goal is to use this case as a vehicle to reach policy objectives that the
lead opinion wishes to address.
As established by Street R Co and subsequent caselaw regarding mootness, it
obviously follows for all but a majority of this Court that, without the threatened
construction and use of the pipeline and without any DEQ permit authorizing the
discharge, there remains no threatened injury to plaintiffs’ riparian rights, and certainly
none that this Court can remedy. Similarly, there remains no threatened MEPA violation,
either by Merit or by the DEQ.
In short, plaintiffs’ common law riparian rights and their rights under MEPA are
secure. Indeed, plaintiffs do not now contend that they have an immediate injury at stake;
they nevertheless want this Court to rule on the substantive legal issues—for the benefit
of future cases. This is the definition of mootness. Again, the Street R Co decision
provides guidance:
It was suggested on the hearing that we ought to settle the rights of
the parties so that the principle established might be a guide in other cases
likely to arise. But courts of equity will not lend their aid by injunction for
the enforcement of a right or the prevention of a wrong in the abstract, not
connected with any injury or damage to the person seeking relief, nor when
such injury or damage can be fully and amply recovered in an action at law.
Nor are courts of equity established to decide or declare abstract questions
of right for the future guidance of suitors.[44]
44
Street R Co, 58 Mich at 287.
16
In their brief opposing Merit’s motion to dismiss, plaintiffs claimed that this case
fits into an exception to the mootness doctrine, that “the issue is one of public
significance that is likely to recur, yet evade judicial review.” 45 Not so.
The issues presented here are not the sorts of issues whose transitory nature—
often because the issues involved are time-sensitive—makes it likely that future litigation
would “evade judicial review.” 46 To the contrary, any riparian owner aggrieved by the
actions or imminently threatened actions of another can seek injunctive or other relief.
The lead opinion claims that “the trial court has left open the door for Merit to
discharge treated water into Kolke Creek at a lower than originally proposed rate.” 47
45
Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383
(2002).
46
Socialist Workers Party v Secretary of State, 412 Mich 571, 582 n 11; 317 NW2d 1
(1982). Socialist Workers Party cited several federal cases for the proposition that a
court can consider a moot question that is capable of repetition, yet evading review,
including Storer v Brown, 415 US 724; 94 S Ct 1274; 39 L Ed 2d 714 (1974) (allowing a
constitutional challenge to a California requirement that a person may not run for election
as an independent candidate within six months of having been a registered member of a
political party after the plaintiff had met the independence requirement); Dunn v
Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972) (allowing a constitutional
challenge to a Tennessee voter eligibility requirement that a person be a resident of the
state for one year after the plaintiff had met the residency requirement); Moore v Ogilvie,
394 US 814; 89 S Ct 1493; 23 L Ed 2d 1 (1969) (allowing a constitutional challenge to an
Illinois requirement that independent candidates for presidential electors receive at least
200 signatures from each of at least 50 of the state’s 102 counties); Southern Pacific
Terminal Co v Interstate Commerce Comm, 219 US 498; 31 S Ct 279; 55 L Ed 310(1911) (allowing a challenge to a temporary ICC cease and desist order after the order
had already expired). See also Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147(1973) (allowing a constitutional challenge to a Texas abortion law after the plaintiff had
given birth).
47
Ante at 4 n 4.
17
This claim appears plausible when looking solely at the circuit court’s June 26, 2007,
amended opinion. But that opinion was superseded by subsequent events. In particular,
the circuit court’s January 31, 2008, opinion ruled that the DEQ had erroneously issued a
permit to Merit. Both the Court of Appeals and, eventually, this Court denied
defendants’ applications for leave to appeal, leaving intact the circuit court’s opinion.
Accordingly, even if the circuit court’s June 26, 2007, decision “left open the door for
Merit to discharge treated water into Kolke Creek,” its January 31, 2008, decision closed
that door, and this Court’s denial of leave bolted the door shut. Further, without either
physical access to Kolke Creek or a valid permit, Merit has no lawful authority to
discharge any amount of anything into Kolke Creek.
In short, there is not a clearer instance of mootness than this case: the action
originally challenged by plaintiffs can no longer be physically or legally accomplished by
any of the defendants. Nevertheless, a majority of this Court has seen fit to decide the
substantive issues of this case. The decision of four members of this Court to proceed on
the substantive merits is profoundly flawed and inconsistent with longstanding principles
of constitutional law. Worse still, the lead opinion is itself profoundly flawed and
inconsistent with longstanding principles of the common law and of statutory
interpretation. Therefore, I am compelled to respond seriatim to the lead opinion’s
substantive claims.
IV. PLAINTIFFS’ COMMON LAW RIPARIAN CLAIMS
I vigorously dissent from the lead opinion’s creation of a new common law rule
that certain discharges of contaminants are per se unreasonable infringements on riparian
18
owners’ rights. Unfortunately, I fear that the haste to render a decision in this case before
the end of calendar year 2010, while perhaps grounded in a good intention to protect this
state’s environmental resources, could result in great mischief to the law. Indeed,
“[g]ood intentions, unsupported by well informed policy choices, often result in bad
law.” 48 In its haste to fashion its rule, the lead opinion elided several necessary
inquiries. 49 More troubling, the lead opinion created out of whole cloth a palpably
erroneous common law standard that is not grounded in this state’s water law.
48
Young, A judicial traditionalist confronts the common law, 8 Tex R L & Pol 299, 307
(2004).
49
For a preliminary example, the lead opinion assumes, without deciding, that the DNR’s
easement allowed Merit to discharge treated water into Kolke Creek. The lead opinion
acknowledges that this issue is properly before the Court, because “[t]he trial court . . .
made findings as to whether Merit had properly obtained rights to discharge the treated
water through the state-land easement.” Ante at 4 n 3. Yet the lead opinion refuses to
reach this issue because it “[did] not find those issues to be outcome-determinative . . . .”
Ante at 4 n 3. The lead opinion puts the cart before the horse in making this
determination without explanation, because this issue is a condition precedent to every
subsequent one in this section. This is another indicator that the lead opinion is not
interested in legal analysis but instead is driven to reach a particular result. Nevertheless,
I agree with the Court of Appeals that, because the easement unambiguously allowed
Merit to “operate” the pipeline, the easement purported to grant Merit the right to
discharge treated water into Kolke Creek.
The lead opinion also refuses to decide whether the DNR can grant an easement for
Merit’s physical access to Kolke Creek, instead claiming that “it is unnecessary to
consider this issue” because “even assuming arguendo that the proposed easement in this
case is valid, . . . the proposed use is unreasonable.” Ante at 10 n 10. Plaintiffs argue that
the easement impermissibly severed the DNR’s riparian rights from the land and claim
that, because the easement benefits a nonriparian tract, it violates the requirement in
Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967), that limits artificial riparian uses
to those benefitting the riparian land itself.
Michigan law allows the DNR to grant Merit an easement to access Kolke Creek
precisely because it does not operate to sever the DNR’s underlying riparian rights from
19
A. REASONABLENESS OF EASEMENT AND PROPOSED DISCHARGE
Although plaintiffs have won at all levels below on the issue whether the proposed
discharge would have violated their riparian rights, they challenge the underlying law that
the lower courts applied to the analysis. 50 The lower courts applied the “reasonable use
balancing test” as outlined in the Court of Appeals’ Nestlé opinion. Plaintiffs claim that
this was erroneous, first, because the Nestlé panel ignored or changed Michigan water
law and, second, because the instant panel improperly extended Nestlé’s groundwater
decision to competing riparian surface water claims.
The Nestlé “reasonable use balancing test” applies a multifactor balancing test to
determine whether the alleged violation of a plaintiff’s water rights (in Nestlé,
groundwater rights, and in the instant case, surface riparian rights) amounts to an
the land. This Court’s decision in Thompson is instructive inasmuch as it proves the
opposite of plaintiffs’ argument. Thompson involved a developer’s attempt to divide a
large parcel of land adjoining a lake into several smaller parcels, so that some of the
newly created parcels no longer touched the lake. Nevertheless, the developer sought to
maintain riparian rights on the parcels no longer touching the lake. The Court rejected
this attempt, concluding that “riparian rights are not alienable, severable, divisible or
assignable apart from the land which includes therein, or is bounded, by a natural water
course.” Id. at 686 (opinion by T. M. KAVANAGH, J.). However, Thompson also
recognized that riparian rights could be granted by easement: “While riparian rights may
not be conveyed or reserved[,] . . . easements, licenses and the like for a right-of-way for
access to a water course do exist and ofttimes are granted to nonriparian owners.” Id.Such an access grant is exactly what occurred here. The instant easement provided
access to Kolke Creek, which included the right to dispose of treated water into Kolke
Creek. The Court of Appeals correctly determined that “plaintiffs’ argument does not
hold water.” Anglers, 283 Mich App at 132.
50
Merit has not cross-appealed the lower courts’ decisions that its proposed discharge
violates plaintiffs’ riparian rights, although it argues that the lower courts applied the
appropriate test.
20
unreasonable infringement of those rights. The Nestlé panel defined the “reasonable use
balancing test” as follows:
While the nature of the balancing test requires that the appropriate
factors be ascertained on a case-by-case basis, . . . several factors can be
discerned that will be relevant to every application of the test. These
factors include (1) the purpose of the use, (2) the suitability of the use to the
location, (3) the extent and amount of the harm, (4) the benefits of the use,
(5) the necessity of the amount and manner of the water use, and (6) any
other factor that may bear on the reasonableness of the use.
When determining the purpose of the use, the court should consider
whether the use is for an artificial or a natural purpose and whether the use
benefits the land from which the water is extracted. Natural purposes
include all those uses necessary to the existence of the user and his or her
family, including the use of the water for drinking and household needs. . . .
Further, in order to ensure that the needs of local water users are met first,
water uses that benefit the riparian land or the land from which the
groundwater was removed are given preference over water uses that ship
the water away or otherwise benefit land unconnected with the location
from which the water was extracted.
In assessing the suitability of the use to the location, the court should
examine the nature of the water source and its attributes. A particularly
large aquifer, stream, or lake may be unaffected even by extensive water
withdrawals, whereas a marginal water resource may be unduly strained
even by relatively modest withdrawals. . . .
In assessing the harm and benefits, the court should examine not
only the economic harm and benefits to the parties, but should also examine
the social benefits and costs of the use, such as its effect on fishing,
navigation, and conservation. . . .
The court should also examine the extent, duration, necessity, and
application of the use, including any effects on the quantity, quality, and
level of the water. If the amount or method of water use is excessive or
unnecessary and harms another’s use, it will be unreasonable. Furthermore,
if the harm caused by a water use can be readily modified to mitigate or
21
eliminate the harm, the failure to take such steps may make the particular
use unreasonable.[51]
The lead opinion refuses to determine whether the Nestlé panel’s “reasonable use
balancing test” might be appropriate in some instances, but it conclusively determines
this test to be inappropriate in the instant case because the proposed discharge was
“manifestly unreasonable.” 52 Although the lead opinion cautions that it is not concluding
that “diverting water from one watershed to another is ipso facto unreasonable,” 53 it does
provide a categorical rule regarding contaminants when it observes that “[i]t would be
incongruous to hold that it is reasonable to decontaminate water by contaminating
different water.” 54 The categorical rule that the lead opinion fashions in its haste to
render a decision in this case is inconsistent with longstanding principles of Michigan
water law.
This Court’s decision in Attorney General ex rel Wyoming Twp v Grand Rapids 55
provides a prime example of the lead opinion’s determination—willful or not—to ignore
longstanding principles of Michigan water law. Wyoming Twp is particularly significant
because it employed a reasonable use balancing test under circumstances similar to the
facts here. In Wyoming Twp, the plaintiff riparian owners sought to enjoin the defendant
51
Nestlé, 269 Mich App at 71-74 (opinion by SMOLENSKI, J.) (citations omitted).
52
Ante at 2.
53
Ante at 13 n 18.
54
Ante at 13.
55
Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503; 141 NW 890(1913).
22
city—also a riparian owner—from discharging its citizens’ sewage into the Grand River.
It is clear from the facts of the case that many of the citizens whose land was therefore
benefitted lived on nonriparian parcels. Further, as will often be the case when a
governmental entity disposes of sewage, it is possible—and potentially likely—that
citizens of the defendant lived on land outside the watershed. But such facts were
irrelevant; the Court’s decision rested entirely on a reasonable use test to balance the
rights of the competing riparian owners to use the waterway as they saw fit.
Writing for the majority, Justice STONE applied a balancing test to determine the
extent to which the plaintiffs’ riparian rights suffered as a result of the defendant’s
discharge. The Court explained that “city has the right to make a reasonable use of the
waters of the river as a riparian owner.” 56 Accordingly, it articulated a rule that “where
an unreasonable pollution of the water, amounting to a nuisance, or impairing the rights
of the lower riparian proprietor, is created or maintained, an injunction will issue to
restrain its continuance.” 57
The central issue was the plaintiffs’ ability to exercise their riparian rights, not
simply the defendant’s pollution of the Grand River. The Court explained: “Sewage
cannot be thrown into the stream in such a way as to render the water foul and unfit for
use.” 58 It emphasized that discharges of pollutants themselves were not per se
56
Id. at 534.
57
Id. at 535 (emphasis added).
58
Id. at 538 (emphasis added).
23
impermissible; only the harmful effect of a particular discharge rendered it
impermissible:
The maxim, “Use your own property in such a manner as not to
injure that of another,” can equitably be applied to the defendants in this
case. It appears undisputed that the construction of a septic tank or tanks
by the defendants within a reasonable time is feasible and practicable, and
that thereby the sewage would be relieved from contaminating properties
and so purified as to take away the offensive, unhealthful, and nauseating
odors.[59]
Accordingly, the Court enjoined the defendant from discharging sewage “until the same
shall have first been, by the use of a septic tank or tanks, so deodorized and purified as
not to contain the foul, offensive, or noxious matter (which it now contains) capable of
injuring the complainants or their property, or causing a nuisance thereto . . . .” 60
The Court explicitly tied the reasonableness of a riparian discharge to the
existence of a private nuisance. The two concepts are related because the existence of a
private nuisance is itself dependent on whether the defendant’s actions “‘constitute
unreasonable interference with the use and enjoyment of the land.’” 61 Overall, the
Court’s decision in Wyoming Twp shows not only that the Nestlé panel’s “reasonable use
balancing test” is firmly rooted in the Michigan common law, but also that such a test
was applied historically even when a riparian owner used a waterway to benefit
nonriparian lands. By contrast, the lead opinion’s claim that any pollutant from a
59
Id. at 543.
60
Id. (emphasis added).
61
Adkins v Thomas Solvent Co, 440 Mich 293, 305; 487 NW2d 715 (1992), quoting
Prosser & Keeton, Torts (5th ed), § 87, p 623.
24
different watershed discharged into Kolke Creek is unreasonable per se is a sharp
divergence from established Michigan water law.
Indeed, historical water law in Michigan consistently supports the lower courts’
application of the “reasonable use balancing test” instead of the lead opinion’s new
categorical common law rule. Michigan riparian law dates to Justice COOLEY’s 1874
decision in Dumont v Kellogg. 62 In Dumont, the defendant “constructed a dam across a
natural water course, and by means thereof wrongfully detained the water in the stream to
the prejudice and injury of the plaintiff, who was proprietor of a mill previously erected
on the stream below.” 63 The claim of error involved the trial court’s instruction of the
law to the jury, and so the Court articulated the proper law involving competing riparian
claims. Justice COOLEY determined that equality of riparian ownership requires some
sort of balancing of riparian interests:
But as between different proprietors on the same stream, the right of
each qualifies that of the other, and the question always is, not merely
whether the lower proprietor suffers damage by the use of the water above
him, nor whether the quantity flowing on is diminished by the use, but
whether under all the circumstances of the case the use of the water by one
is reasonable and consistent with a correspondent enjoyment of right by the
other. “Each proprietor is entitled to such use of the stream, so far as it is
reasonable, conformable to the usages and wants of the community, and
having regard to the progress of improvement in hydraulic works, and not
inconsistent with a like reasonable use by the other proprietors of land on
the same stream above and below.” . . . It is a fair participation and a
reasonable use by each that the law seeks to protect. . . . It is therefore not a
diminution in the quantity of the water alone, or an alteration in its flow, or
either or both of these circumstances combined with injury, that will give a
62
Dumont v Kellogg, 29 Mich 420 (1874).
63
Id.25
right of action, if in view of all the circumstances, and having regard to
equality of right in others, that which has been done and which causes the
injury is not unreasonable. In other words, the injury that is incidental to a
reasonable enjoyment of the common right can demand no redress.[64]
This Court also articulated important principles involving riparian rights in People
v Hulbert. 65 The central issue in Hulbert was whether, by swimming in the lake on
which he owned property, the defendant criminally polluted the lake, which also served
as a water supply to the city of Battle Creek. The prosecution presented expert witnesses
who testified “that germs might have been thrown off the body of the respondent while
swimming, which would produce disease, and that some of those germs might reach the
intake pipe, and through it the consumers of the water, and be a source of ill health,” even
though “[i]t is not shown any such germs ever did reach the intake pipe, or that any
illness in Battle Creek could be traced to the use of the water taken from this lake.” 66
Writing for the majority, Justice MOORE concluded that Michigan and foreign
caselaw made it clear “that the lower proprietor [i.e., the city] has no superior right to the
upper one, and may not say to him that, because the lower proprietor wants to use the
water for drinking purposes only, the upper proprietor may not use the water for any
other purpose.” 67 Rather,
[e]ach proprietor has an equal right to the use of the stream for the ordinary
purposes of the house and farm, even though such use may in some degree
64
Id. at 423-425, quoting Cary v Daniels, 49 Mass (8 Met) 466, 476-477 (1844).
65
People v Hulbert, 131 Mich 156; 91 NW 211 (1902).
66
Id. at 159.
67
Id. at 173.
26
lessen the volume of the stream, or affect the purity of the water. . . . This
right is not affected by the fact that the lower proprietor is a municipality
instead of an individual.[68]
The Court also implicitly required a fact-intensive balancing of the rights and effects of
the riparian users:
In what we have said we do not mean to intimate that an upper
proprietor may convert his property into a summer resort, and invite large
numbers of people to his premises for purposes of bathing, and give them
the right possessed only by the riparian owner and his family. We are
undertaking to decide only the case which is presented here.[ 69]
As this explication of Michigan water law shows, the lead opinion’s creation of a
categorical common law rule out of whole cloth is hasty and inconsistent with established
water law. Believing that it is “unconscionable and destructive for this Court to
determine that it is reasonable to spread dangerous contamination throughout
Michigan,” 70 the lead opinion nevertheless would adopt a categorical rule without
requiring a finding that the contamination is, in fact, “dangerous” to the watershed at
issue! This is so because the circuit court only made an initial finding of fact that the
volume of the proposed discharge (1.15 million gallons a day) could cause unreasonable
harm to plaintiffs. It did not find that the treated water was harmful to Kolke Creek
regardless of volume; to the contrary, the circuit court specifically ruled that “the parties’
proximity to and use of the watercourse, as well as the volume, source, and nature of the
proposed discharge, were considered while determining whether the proposed discharge
68
Id.69
Id. at 174.
70
Ante at 13.
27
would be reasonable.” Furthermore, its decision expressly contemplated that defendants
might offer a planned discharge of contaminant that would be reasonable. Instead of
reviewing the factual determinations of the circuit court, the lead opinion makes a ruling
as a matter of law that any amount of discharge is per se unreasonable. There is simply
no basis in law or fact for its ruling.
Incredibly, the lead opinion reaches its preferred result by creating a new
categorical rule both without citing a single case in support and with apparent
unawareness that caselaw has already established how courts should weigh water use on
the basis of whether it benefits riparian or nonriparian land, if the specific facts of a case
warrant a distinction. 71 Citing longstanding precedent of this Court, the Court of Appeals
panel in Nestlé expressly held that “water uses that benefit the riparian land . . . are given
preference over water uses that . . . benefit land unconnected with the location [of the
water withdrawal].” 72 A court should “ensure that the needs of local water users are met
first . . . .” 73 Indeed, as the lower courts obviously concluded here, the factors listed in
Nestlé directly address, on the basis of historical tests for reasonableness, each of
plaintiffs’ concerns about Merit’s proposed water use. For example, Nestlé also asserted
that “natural purposes,” including “uses necessary to the existence of the user and his or
71
The reasons underlying some courts’ distinctions between riparian and nonriparian
benefits would generally apply equally to any distinction between on-watershed and off-
watershed uses. But, notably, the lead opinion’s categorical new rule for off-watershed
uses—as opposed to uses benefitting nonriparian lands, generally—appears drawn from
thin air.
72
Nestlé, 269 Mich App at 72.
73
Id.
28
her family,” take precedence over artificial uses. 74 As is particularly relevant to plaintiff
Anglers of the AuSable, Inc., a court must also consider the proposed use’s “effect on
fishing, navigation, and conservation.” 75 Finally, the circuit court’s ruling clearly took
into account the Nestlé panel’s holdings that “[i]f the amount or method of water use is
excessive or unnecessary and harms another’s use, it will be unreasonable,” and “if the
harm caused by a water use can be readily modified to mitigate or eliminate the harm, the
failure to take such steps may make the particular use unreasonable.” 76
The lead opinion’s conclusion that Merit’s proposed use is manifestly
unreasonable simply because it involves two watersheds is unnecessary and displays a
patent disregard for the rule of law and for this Court as an institution. Its unreasoned
conclusion also threatens vast negative consequences for the residents and businesses of
this state.
B. POTENTIAL CONSEQUENCES OF THE LEAD OPINION’S RULE
With little explanation that cites no proposition of law, save the unremarkable and
uncontested principle that an unreasonable use of a watershed is prohibited, the lead
opinion upends water law and declares a categorical per se rule precluding any amount of
contaminant into Kolke Creek. The lead opinion attempts to bouleverse the existing law
of this state, the negative impacts of which attempt cannot fully be foreseen. It fails to
74
Id. at 71-72.
75
Id. at 73.
76
Id. at 73-74 (citations omitted).
29
account even for several obvious hypothetical situations in which its unbending rule
inappropriately precludes reasonable discharges that do not harm riparian owners’ rights.
For example, suppose the presence of a contaminant in a small watershed causes
significant harm to the environment and to the people living within that watershed.
Suppose further that environmental engineers determine that diverting that contaminant
to a large watershed (or several other watersheds) via riparian owners’ access easements
would not harm the water contained in the larger watershed because the contaminant is
safe when diluted in a large body of water. In this situation, the diversion would not
harm the riparian rights of the larger watershed’s users, but it would significantly
improve the environmental conditions of the smaller watershed. Nevertheless, the lead
opinion’s categorical rule would seem to provide riparian owners at the point of
discharge a cause of action to enjoin the discharge, despite no finding of harm to the
larger watershed.
The lead opinion also seems to call into question whether and to what extent
municipalities can discharge their residents’ sewage. Suppose that a municipality’s
residents receive their water from one watershed and that the municipality discharges its
residents’ sewage into a different watershed. May riparian owners at the point of
discharge successfully enjoin the municipality from discharging its residents’ sewage
upon a simple showing that the discharge was created from water taken from a different
watershed? Although the Wyoming Twp decision would allow this discharge (assuming a
finder of fact were to make appropriate findings of reasonableness), the rationale of the
lead opinion would forbid it.
30
Consider an even simpler scenario: may a farmer no longer import water during
dry seasons to irrigate his crops if any amount of the water, once sprayed onto his land,
will drain into a river? According to the rationale of the lead opinion, arguably he may
not. It appears that it will not matter whether the farmer uses potentially damaging
fertilizers or harmless organic ones—either would “contaminate” the water as it runs off
the plants and soil—given that actual injury to the watershed from his irrigation is
irrelevant under the lead opinion’s categorical rule. Indeed, because the lead opinion
never even defines “contamination,” farmers are left to wonder: Is irrigation precluded if
the off-watershed irrigation water is contaminated with mere soil? With plant matter?
Further, because the lead opinion’s rule makes it no longer appropriate to balance the
benefits and detriments of the particular use in relation to other uses of the watershed, the
categorical prohibition would not be superseded even if the farm were a significant
source of food or economic support for the farmer’s community. 77 Thus, the lead
77
Significantly, we cannot assume that, even if the farmer’s use does not actually injure
the watershed or interfere with other riparian users, such hypothetical situations are
irrelevant for the practical reason that no one will sue to enjoin the irrigation. To the
contrary, a per se rule divorced from any factual inquiry into the nature and level of harm
invites mischief, particularly when combined with the minimal test for standing
established by the majority in Lansing Sch Ed Ass’n, 487 Mich 349, relied on by the lead
opinion here. Under the prudential standing test from that case, any user of the watershed
may seemingly sue our farmer for reasons unrelated to either party’s water needs and in
disregard of the needs of the community. Indeed, another watershed user could sue
simply because that user is, for example, a farm operator wishing to reduce competition
or even a vindictive riparian neighbor who disapproves of the farmer’s choice in overalls;
neither plaintiff would have to show that he was actually harmed by the farmer’s
irrigation.
31
opinion’s rule has the potential to cripple agriculture in this state—an industry that has an
economic impact of more than $70 billion annually in this state’s economy. 78
These are only a few hypothetical situations that the lead opinion’s categorical rule
would seem to forbid. Yet as these examples make clear, application of the lead
opinion’s rule—which requires water use to be enjoined on the basis of a vague notion of
“contamination” instead of on the basis of relative harm—would stifle activity that
simply does not harm existing watersheds and that is clearly beneficial to the community
at large.
The lead opinion also fails to address arguments of defendants and their amici
curiae—which raise additional critical concerns about the soundness and workability of
the new rule—that on-watershed and off-watershed uses may be impossible to
differentiate under some facts. The lead opinion’s categorical rule suggests that a
watershed’s boundaries are sacrosanct, yet it has provided no authority for this principle.
It does not even note Merit’s related observation that its land—like countless other
parcels in Michigan—sits nearly on the border of the surface water divide between the
AuSable and Manistee watersheds, exemplifying Merit’s argument that, as a matter of
geographical fact, determining which watershed a parcel sits in is not always a black and
white inquiry. Yet under the lead opinion’s categorical rule, courts would have to make
this determination, even when scientists and geographers cannot.
78
Knudson & Peterson, Second Interim Update on the Economic Impact of Michigan’s
Agri-Food and Agri-Energy System, available at (accessed
December 22, 2010).
32
Finally, and most telling, as explained earlier, plaintiffs successfully enjoined
Merit from discharging 1.15 million gallons a day into Kolke Creek in the instant original
action, and they successfully vacated the DEQ’s COC on appeal of the contested case
decision. Those proceedings were designed to take into account the very analyses that
the lead opinion elides: namely, whether the particular proposed discharge would
unreasonably interfere with plaintiffs’ riparian rights and whether it would violate
Michigan’s environmental laws. This case’s procedural history illustrates that the careful
balance Michigan’s riparian law has struck for more than a century serves citizens of this
state, including riparian owners such as plaintiffs, well: not one drop of treated water has
ever been allowed to enter the bodies of water plaintiffs sought to protect; the permit that
would have allowed a discharge was vacated; and plaintiffs were awarded fees and costs
pertaining to their claims against Merit. This litigation demonstrates that there is no need
to disturb Michigan’s balanced and effective riparian law. Ultimately, the broad strokes
that the lead opinion uses in its haste to render its preferred policy decision in this case
would severely damage this state’s common law and its economy.
V. PLAINTIFFS’ MEPA CLAIMS
Plaintiffs claim that both Merit and the DEQ violated MEPA. 79 MCL 324.1701(1)
provides, in whole:
79
As stated in part III(B) of this opinion, plaintiffs’ MEPA claims are now moot. Their
MEPA claim against Merit is moot because Merit no longer has either physical access to
Kolke Creek or a valid DEQ permit. Their MEPA claim against the DEQ is moot
because the circuit court has already vacated the underlying permit. Nevertheless, the
majority has decided to rule that plaintiffs’ MEPA claims against Merit and the DEQ may
33
The attorney general or 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.
MCL 324.1703(1) requires the plaintiff to make “a prima facie showing that the conduct
of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or
destroy the air, water, or other natural resources or the public trust in these
resources . . . .”
Plaintiffs claim that the DEQ’s issuance of the COC “is likely to pollute, impair,
or destroy” Kolke Creek and the AuSable River watershed in violation of MCL
324.1703(1). 80 The lower courts applied this Court’s precedent in Preserve the Dunes to
rule that the mere issuance of a permit is not itself “conduct” that “is likely to pollute,
impair, or destroy the air, water, or other natural resources or the public trust in these
resources” in violation of MCL 324.1703(1).
A. PRESERVE THE DUNES WAS CORRECTLY DECIDED
In Preserve the Dunes, the plaintiff sought to enjoin a sand dune mining operation
for which the DEQ had granted a permit. Although the plaintiff did not challenge the
proceed. Therefore, while I would dismiss the entire case as moot, my analysis proceeds
on the substantive merits of the claims.
80
Plaintiffs also claim that Merit’s proposed discharge “is likely to pollute, impair, or
destroy” Kolke Creek and the AuSable River watershed in violation of MCL
324.1703(1). The circuit court agreed with plaintiffs that the proposed discharge would
violate MEPA and enjoined Merit from undertaking its proposed discharge. The Court of
Appeals affirmed the injunction, and Merit has not appealed that decision of the Court of
Appeals. Accordingly, this Court is not presented with the substantive question whether
Merit’s proposed discharge violates MEPA.
34
mining operation’s eligibility for the permit during the appropriate time for review, it
sought to undertake a collateral attack on the permit’s issuance, claiming that the DEQ’s
mere issuance of the permit violated MEPA.
Writing for the majority, Justice CORRIGAN explained that, even if the DEQ had
erred by issuing the permit, “[a]n improper administrative decision, standing alone, does
not harm the environment. Only wrongful conduct offends MEPA.” 81 Accordingly, the
Court rejected the plaintiff’s collateral attack on the issuance of the mining permit. Of
course, the Court’s holding that “[o]nly wrongful conduct offends MEPA” did nothing to
prevent an action against the mining operation for harming the environment. Indeed, if
nothing else, the opinion underscored that the appropriate avenue to enforce MEPA is to
seek relief from the entities whose actual conduct violates or would imminently violate
MEPA.
The lead opinion claims that Preserve the Dunes “frustrated the legislative intent
behind MEPA, and . . . represented a departure from this Court’s precedent.” 82 To the
contrary, Preserve the Dunes applied the language that the Legislature used in MEPA,
and its holding was consistent with the holdings contained in this Court’s earlier
precedent.
When interpreting a statute, courts must “ascertain the legislative intent that may
reasonably be inferred from the words expressed in the statute.” 83 This requires courts to
81
Preserve the Dunes, 471 Mich at 519.
82
Ante at 7.
83
Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).
35
consider “the plain meaning of the critical word or phrase as well as ‘its placement and
purpose in the statutory scheme.’” 84 In enacting MEPA, the Legislature specified that it
was regulating “conduct of the defendant [that] has polluted, impaired, or destroyed or is
likely to pollute, impair, or destroy the air, water, or other natural resources or the public
trust in these resources . . . .” 85
The word “conduct” is not defined in MEPA, nor is it defined in the Natural
Resources and Environmental Protection Act, 86 within which all environmental
regulations, including MEPA, fall. “[W]e give undefined statutory terms their plain and
ordinary meanings.” 87 Accordingly, it is appropriate to use a dictionary to determine the
appropriate meaning of the word “conduct” in MCL 324.1703(1). 88 Merriam-Webster’s
Collegiate Dictionary defines “conduct,” in relevant part, as “the act, manner, or process
of carrying on[.]” 89 This definition makes it clear that conduct requires some sort of
action.
It is apparent from the placement of the term “conduct” within MCL 324.1703(1)
that not only must a defendant engage in “conduct” to violate MEPA, but the defendant’s
84
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting
Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
85
MCL 324.1703(1) (emphasis added).
86
MCL 324.101 et seq.
87
Koontz, 466 Mich at 312.
88
Id.89
Merriam-Webster’s Collegiate Dictionary (1998).
36
conduct must itself “pollute[], impair[], or destroy[] or [be] likely to pollute, impair, or
destroy the air, water, or other natural resources or the public trust in these
resources . . . .” It is simply not the case that the issuance of a permit, by itself, pollutes,
impairs, or destroys or is likely to pollute, impair, or destroy the air, water, or other
natural resources or the public trust in these resources. 90 While a permit might precede
conduct that pollutes, impairs, or destroys this state’s environmental resources, it does not
do so without subsequent action by an individual or entity. The lead and concurring
opinions thus have not shown how the mere issuance of a permit violates MEPA.
The lead opinion also claims that Preserve the Dunes “insulate[s] DEQ permit
decisions from MEPA.” 91 As already demonstrated, this case is a perfect illustration that
this is simply untrue. Judicial review of agency decisions is available through an appeal
to circuit court pursuant to the Administrative Procedures Act (APA) after a contested
case hearing. 92 In other words, a person seeking judicial review of an administrative
agency’s issuance of a permit may assert that the agency failed to apply MEPA. As
discussed, that is precisely what happened in this case. In plaintiffs’ appeal of the
90
This conclusion is strengthened by a contextual reading of MEPA that considers the
use of “conduct” in MCL 324.1705, which mandates that an agency make a pollution
determination, and then states that “conduct shall not be authorized or approved that has
or is likely to have [a polluting] effect . . . .” MCL 324.1705(2) (emphasis added). This
provision recognizes a distinction between the “conduct” of a MEPA defendant and the
“authorization” or “approval” of the agency. Thus, the language of the statute makes
clear that the drafters of MEPA did not consider authorization or approval alone to
constitute “conduct,” just as Preserve the Dunes held.
91
Ante at 10.
92
MCL 24.302.
37
contested case decision, the circuit court concluded that the DEQ’s “approval of Merit’s
COC is illegal . . . because the proposed discharge and the proposed volume of discharge
is likely to violate MEPA.”
Accordingly, contrary to the lead opinion’s unsupported assertion, the permitting
process is far from “insulated.” In this very case, MEPA was vindicated through an
appropriate and entirely adequate procedural vehicle: the APA appeal. There was no
need for plaintiffs to file a separate complaint under MCL 324.1701, alleging again that
the MDEQ’s issuance of the (already-invalidated) COC violated MEPA. As the
procedural history of this case illustrates, and as Preserve the Dunes recognized, a MEPA
case challenging the issuance of a permit constitutes an improper “collateral attack” that
is nowhere contemplated by the statute. 93
B. PRESERVE THE DUNES WAS CONSISTENT WITH THIS COURT’S
PRECEDENT
The lead and concurring opinions also have not shown how Preserve the Dunes
departed from this Court’s precedent. The lead and concurring opinions both refer to
several cases that they urge support their claim, but they fail to examine those cases in
sufficient detail to show how they are inconsistent with Preserve the Dunes. In fact, the
cases cited provide little support for the claim that Preserve the Dunes was incorrectly
decided.
93
Preserve the Dunes, 471 Mich at 511.
38
First, the lead and concurring opinions refer to Eyde v Michigan. 94 However, the
plaintiffs in Eyde claimed that “the construction of a sewer [was] violative of” MEPA’s
predecessor statute. 95 Thus, Eyde unquestionably involved conduct, namely, the
construction of a sewer. Moreover, the Court expressly indicated that its holding was
“restricted to the unique facts of this case.” 96 As a result, the lead and concurring
opinions’ reliance on this case is specious.
Second, the lead and concurring opinions refer to Ray v Mason Co Drain
Comm’r. 97 Ray involved “the kind of findings of fact required of the trial judge . . . in
deciding an action brought under” MEPA’s predecessor statute. 98 Ray neither involved
nor discussed whether the mere issuance of a permit can itself violate MEPA.
Accordingly, it is simply irrelevant to the position that the lead and concurring opinions
seek to advance.
Third, the lead and concurring opinions refer to West Mich Environmental Action
Council v Natural Resources Comm (WMEAC). 99 The plaintiffs in WMEAC challenged a
consent order between the Natural Resources Commission (NRC) and several private
94
Eyde v Michigan, 393 Mich 453; 225 NW2d 1 (1975).
95
Id.96
Id. at 456.
97
Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975).
98
Id. at 298.
99
West Mich Environmental Action Council v Natural Resources Comm, 405 Mich 741;
275 NW2d 538 (1979) (WMEAC).
39
entities to allow oil and gas development in a state forest. Pursuant to that consent order,
the NRC granted permits for those private entities to drill 10 exploratory wells in the
forest. Even before the NRC granted those permits, however, the plaintiffs claimed that
the consent order “was likely to lead to the impairment of wildlife in the Forest.” 100 This
Court’s ultimate disposition was to order the trial court to enter “a permanent injunction
prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August
24, 1977.” 101 Thus, this Court’s injunction was not issued to enjoin the NRC from
issuing permits or even to vacate the existing permits but to enjoin the underlying
conduct that the permits purported to allow. WMEAC is, therefore, inapplicable to
whether Preserve the Dunes was correctly decided.
Finally, the lead and concurring opinions refer to Nemeth v Abonmarche Dev,
Inc. 102 Nemeth involved a proposed development in the city of Manistee that the
plaintiffs alleged would cause soil and sand erosion. At issue in Nemeth was whether the
developers’ (undisputed) violations of the soil erosion and sedimentation control act
(SESCA) 103 also violated MEPA. This Court concluded that substantive SESCA
violations can present a prima facie MEPA violation. Thus, Nemeth similarly involved
whether conduct underlying a permit—not the actual issuance of a permit—violates
MEPA.
100
Id. at 750.
101
Id. at 760.
102
Nemeth v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641 (1998).
103
MCL 324.9101 et seq.
40
Accordingly, and contrary to the lead and concurring opinions’ ipse dixit,
Preserve the Dunes was not inconsistent with this Court’s prior holdings.
C. THE LEAD OPINION’S ADDITIONAL RATIONALES
The lead opinion claims that it provides two additional “compelling justifications
for overruling Preserve the Dunes.” 104 Neither of these justifications withstands scrutiny.
First, the lead opinion claims that Preserve the Dunes violates article 4, § 52 of the
Michigan Constitution, which indicates that the “conservation and development of the
natural resources of the state . . . [are] of paramount public concern” and that “[t]he
legislature shall provide for the protection of the air, water and other natural resources of
the state from pollution, impairment and destruction.” 105
This Court has recognized that the predecessor statute of MEPA was “the first
legislation of its kind” and that its passage “attracted worldwide attention.” 106 Nothing in
Preserve the Dunes prevented any plaintiffs who alleged an imminent injury to their
property from participating in what former Chief Justice WILLIAMS called “the important
task of environmental law enforcement . . . .” 107 Indeed, plaintiffs here have already
succeeded in enforcing MEPA by receiving an injunction preventing Merit from
undertaking conduct that the circuit court concluded would violate MEPA. Preserve the
104
Ante at 8.
105
Const 1963, art 4, § 52.
106
Ray, 393 Mich at 304.
107
Id. at 305.
41
Dunes did not stifle enforcement of MEPA. On the contrary, it focused enforcement of
MEPA against those individuals and entities who are actually harming, or whose
imminent conduct threatens to harm, this state’s natural resources. 108
The lead opinion also determines that Preserve the Dunes should be overruled
because, in the instant case, the DEQ “has done more than simply issue a permit that
would result in the harm of natural resources” because it “has also granted an easement
over state land to facilitate the harmful actions.” 109 It is simply incongruous to assert that
the holding in Preserve the Dunes—that the mere issuance of a permit does not constitute
“conduct”—should be overruled because the lead opinion concludes that the DEQ’s
actions in the instant case exceeded the mere issuance of a permit! Indeed, nothing in
Preserve the Dunes prohibited actions against administrative agencies whose conduct
actually pollutes or threatens to pollute the environment. Moreover, the lead opinion is
simply incorrect in stating that the DEQ granted Merit an easement to facilitate its
allegedly harmful actions. The DNR granted the easement to Merit, not the DEQ.
Although today they are within the same entity (the Department of Natural Resources and
108
The lead opinion’s holding has the opposite effect in that it arguably makes countless
individuals and entities subject to MEPA claims, even when their “conduct” itself does
not harm the environment. The lead opinion reasons that the DEQ is subject to a MEPA
claim because its “permit process is entirely related to the environmental harm . . . .”
Ante at 7. However, the lead opinion provides no guidance as to what nexus would be
sufficient to satisfy its “entirely related” test. Should the bank that makes the loan for a
building project on wetlands be subject to a MEPA suit? Should the contractor who
supplies the labor? Should the builders themselves be? Certainly, by the lead opinion’s
reasoning, all of these individuals’ “conduct” is “entirely related” to a harm, or to a likely
harm, to the environment.
109
Ante at 9.
42
Environment), they were separate executive agencies at the time the easement was
granted. Thus, to the extent that the DNR’s act of granting the easement arguably can be
said to have been actionable “conduct” violating the relevant environmental statutes, this
is not related to DEQ’s issuance of the permit. But this circumstance is not a problem for
the lead opinion. Simply put, the lead opinion’s argument that the issuance of the
successfully challenged permit caused an environmental injury is specious.
D. STARE DECISIS PRINCIPLES MILITATE AGAINST OVERRULING PRESERVE
THE DUNES
Not only does a majority of this Court erroneously conclude that Preserve the
Dunes was incorrectly decided and was inconsistent with this Court’s precedent, but the
lead and concurring opinions do not seriously consider what effect the principle of stare
decisis has on whether to overrule Preserve the Dunes. Stare decisis “‘promotes the
evenhanded, predictable, and consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and perceived integrity of the judicial
process.’” 110
Although the lead and concurring opinions (erroneously) conclude that Preserve
the Dunes was wrongly decided, it is well established that “the mere fact that an earlier
case was wrongly decided does not mean overruling it is invariably appropriate.” 111
Instead, this Court must determine the effects of overruling its prior decision, “including
110
Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v
United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).
111
Robinson, 462 Mich at 465.
43
most importantly the effect on reliance interests and whether overruling would work an
undue hardship because of that reliance.” 112 The lead opinion simply states, with no
explanation, that “the law must be returned to how it was applied before Preserve the
Dunes was incorrectly decided.” 113 The lead opinion’s failure to undertake this analysis
with any degree of seriousness further illustrates its haste to render a decision.
In fact, the lead opinion fails to make this analysis because such an analysis shows
that Preserve the Dunes should be maintained. To overrule Preserve the Dunes, even if it
were wrongly decided, “would produce chaos.” 114 The Preserve the Dunes majority’s
response to the dissent in that case provides a glimpse into the world the lead opinion
seeks to create, one in which no administrative decision achieves finality:
Imagine the world that the dissent’s reasoning would create. The
present energy crisis offers a good example. For many years, our country
has sought to decrease our reliance on foreign sources of oil. Suppose an
oil company decided to invest in oil exploration in Michigan in reliance on
a DEQ-issued permit. Under the dissent’s view, MEPA would authorize a
challenge at any time to flaws in the permitting process. Moreover, under
the dissent’s reasoning, a court must accept as true the bare assertion that a
company’s conduct will destroy natural resources. It can never rely on a
permit to do business. What sane investor would take such a risk? As gas
prices soar, few people in Michigan would thank this Court for “protecting”
the environment in this radical fashion.
The dissent’s regime would render the permitting process a useless
exercise. It would cripple economic expansion in Michigan and probably
lead to disinvestment. No one would invest money to obtain a permit that
is subject to endless collateral attacks.
112
Id. at 466.
113
Ante at 10 n 9.
114
Robinson, 462 Mich at 466 n 26.
44
MEPA nowhere strips the permitting process of finality. It is the
dissent that makes a mockery of legislative intent by failing to anchor its
exaggerated claims in the statute’s actual language. MEPA does not
impose the radical requirement that courts indefinitely police administrative
agencies’ permit procedures and decisions.[115]
The lead opinion’s rationale, such as it is, provides scant assurance that it has considered
how disruptive overruling Preserve the Dunes will be to this state.
The concurring opinion attempts to undertake an analysis of stare decisis
principles, but it also falls short of proving that Preserve the Dunes should be overruled.
In particular, the lead and concurring opinions have not shown how Preserve the Dunes
defies “practical workability,” another factor militating against its claim that Preserve the
Dunes should be overruled. 116 To the contrary, even under Preserve the Dunes, the
instant plaintiffs successfully enjoined the conduct that the DEQ’s permit purported to
allow and they successfully challenged the issuance of that permit on appeal from the
appropriate administrative procedures. Indeed, if anything, this case shows how Preserve
the Dunes appropriately and effectively interpreted Michigan’s environmental law,
permitting the successful protection of the environment and plaintiffs’ riparian rights.
This fact alone should have been persuasive to any jurist committed to stare decisis to
avoid an unnecessary overruling of existing precedent.
Preserve the Dunes was correct when it was decided, and it remains correct today.
The lead and concurring opinions have not provided any serious reason for determining
otherwise.
115
Preserve the Dunes, 471 Mich at 523.
116
Robinson, 462 Mich at 466.
45
VI. CONCLUSION
This case is moot. Not only has Merit voluntarily abandoned the easement that
granted it physical access to Kolke Creek, the circuit court has also vacated the
underlying DEQ permit that would have allowed it to make its proposed discharge.
Accordingly, any substantive decision that this Court renders only affects the parties in
the abstract. This Court has long stated that it is not a constitutional exercise of the
judicial power to decide abstract cases. Therefore, I vehemently dissent from this Court’s
decision to render a substantive ruling in this case.
Furthermore, I strongly dissent from the lead opinion’s unnecessarily disruptive
disposition of the substantive issues in this case. The lead opinion fashions out of whole
cloth a categorical rule that “contaminated” water originating from one watershed can
never be discharged into watercourses in another watershed because such a discharge
inherently violates the riparian rights of landowners at the point of discharge. This
decision has no basis in Michigan’s well-established water law, under which the
touchstone of “reasonableness” has served the citizens of this state, including these
riparian plaintiffs, very well. Finally, the lead and concurring opinions’ claim that
Preserve the Dunes was wrongly decided is inconsistent with the plain language of
MEPA and will wreak havoc on this state’s legal system.
In short, the lead opinion’s palpably erroneous decision and the concurring
justices’ acquiescence in the result of that decision are affronts to the rule of law and
reflect the majority’s unseemly haste to render a decision in this case before the end of
calendar year 2010. The decision this Court renders today is a prime example of the
46
naked exercise of power without constitutional warrant. While there may be some who
will welcome today’s result, they should fear a judiciary that is willing to bend the law to
accomplish its will. Those who support it may live to see this decision further undermine
the state’s fragile economy.
For all the foregoing reasons, I respectfully, but strenuously, dissent.
Robert P. Young, Jr.
Maura D. Corrigan
Stephen J. Markman
47