in Re Application of Encana Oil & Gas Re Beaver Creek Pipeline ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
___________________________________________
In re Application of Encana Oil & Gas re Garfield 36
Pipeline.
JOHN BUGGS and DANIEL BONAMIE, UNPUBLISHED
May 16, 2017
Appellants,
v No. 329781
MPSC
MICHIGAN PUBLIC SERVICE COMMISSION LC No. 00-017195
and DTE MICHIGAN GATHERING HOLDING
COMPANY,
Appellees.
In re Application of Encana Oil & Gas re Beaver
Creek Pipeline.
_________________________________________
JOHN BUGGS and DANIEL BONAMIE,
Appellants,
v No. 329909
MPSC
MICHIGAN PUBLIC SERVICE COMMISSION LC No. 00-017196
and DTE MICHIGAN GATHERING HOLDING
COMPANY,
Appellees.
Before: MARKEY, P.J., and MURPHY and METER, JJ.
PER CURIAM.
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In these consolidated appeals, appellants John Buggs and Daniel Bonamie appeal an
order of the Michigan Public Service Commission (PSC) granting applications filed by Encana
Oil & Gas, Inc.,1 to construct and operate natural gas pipelines. We affirm.
I. BACKGROUND
The PSC’s order on appeal is the second order approving construction of natural gas
pipelines known as Garfield 36 and Beaver Creek 11. The first order was challenged by
appellants, and in Buggs v Pub Serv Comm, unpublished opinion per curiam of the Court of
Appeals, issued January 13, 2015 (Docket Nos. 315058, 315064), this Court vacated the order
and remanded the matter to the PSC for further proceedings, concluding:
Although the Commission minimally complied with the requirements for
approving the applications under Act 9, it failed to follow the independent
statutory requirement imposed under MEPA.[2] Because its orders approving the
pipelines were unlawfully issued, we vacate those orders and remand for a new
necessity determination in both dockets. In making its new determinations of
necessity, the Commission shall specifically address the environmental impact as
required under the MEPA and the decision in [State Hwy Comm v Vanderkloot,
392 Mich. 159, 184-190; 220 NW2d 416 (1974) (opinion by WILLIAMS, J.)].
[Buggs, unpub op at 11.]
Appellants attempted, for the second time, to intervene in the proceedings before the
3
PSC. The PSC denied the motion to intervene, noting that in an earlier order it concluded that
Buggs and Bonamie did not meet the test for intervening and that the earlier order had not been
appealed. The PSC also noted that in Buggs, supra, this Court did not instruct it to grant
intervention on remand.
On remand from this Court, the PSC again approved the construction and operation of the
natural gas pipelines. The PSC noted that it sought and received additional information
regarding the environmental impact of the pipelines and the efforts made by Encana to determine
that the pipelines’ routes did not displace protected species or associated habitats. The PSC
provided a 30-day public comment period after it received the additional information.
The PSC reexamined the evidence and made detailed findings. To provide context for
our resolution of these appeals, we quote liberally from the PSC’s opinion:
1
Encana assigned its interest in the pipelines to appellee DTE Michigan Gathering Holding
Company.
2
The Michigan Environmental Protection Act, MCL 324.1701 et seq.
3
Buggs and Bonamie first filed a petition to intervene after the PSC entered ex parte orders in
January 2013 approving the pipelines. The PSC denied the petition in an order entered on April
16, 2013, and denied reconsideration in an order entered on June 28, 2013. Buggs and Bonamie
did not seek leave to appeal the order denying the petition to intervene.
-2-
Garfield 36 Pipeline Project
In Case No. U-17195, Encana indicates in its application that the Garfield
36 Pipeline was to be constructed “adjacent to the well pad access road on
Michigan Department of Natural Resource[s] (MDNR) land and within county
road right of way.” January 11, 2013 Application, p. 2. Encana’s “Exhibit A” is
a map showing the proposed route of the Garfield 36 Pipeline. It depicts a route
that closely follows two roads, W. Township Line Road and Naples Road. The
proposed route veers off of W. Township Line Road to cut a corner in meeting
Naples Road. It then veers off Naples Road in a direct line to the closest gas well
pad, State Garfield C4-36. Encana’s Exhibit D is an environmental impact
assessment regarding the project. It indicates that as the pipeline route leaves the
well pad, it follows a well access road for 2,600 feet. Thus, the application and
exhibits show that approximately 90% of the proposed route for the Garfield 36
Pipeline runs along already-existing roads, avoiding the need for the creation of
new corridors.
The environmental impact assessment discusses the land use and ecology
and describes the pipeline route area as primarily mixed deciduous forest and
describes the area along the well access road as semi-open forest. Regarding
impairment to protected wildlife, the assessment indicates that there are no
threatened or endangered species within the proposed easement or along the
proposed route to the best of the author’s knowledge. Supplemental information
filed in this docket on August 6, 2015, indicates that Encana submitted a request
to the Michigan State University Michigan Natural Features Inventory (MNFI)
requesting a review of the MNFI records regarding the potential presence of a
protected species in the vicinity of the well sites and access roads used for the
wells to which the proposed pipelines would ultimately be connected. Encana
received a Rare Species Review response letter for the well site served by the
Garfield 36 Pipeline. The letter stated that, “there are no legally protected or
special concern species or other natural features within 1.5 miles of the project
site” based on the MNFI database. Dean Farrier, whom Encana hired to prepare
the environmental impact assessments, indicated in his August 4, 2015 letter to
the Commission that, even though this Rare Species Review response letter was
requested regarding the well sites to which the pipelines would ultimately
connect, the 1.5 mile radius used in the database search includes the entire
Garfield 36 Pipeline route.
In addition to the onsite survey of the well sites and access roads for the
potential presence of threatened and endangered species that Mr. Farrier
conducted in order to prepare the environmental impact assessments that he
submitted to the MDEQ’s Office of Oil, Gas and Minerals, Mr. Farrier also
conducted both an initial review of the pipeline route for “obvious environmental
concerns” as well as a “more thorough onsite survey” of the pipeline route “for
the presence of protected species and habitat that might be impacted by pipeline
construction.” Dean Farrier’s August 4, 2015 letter to the Commission, p. 2.
He explained that he traveled the entire pipeline route and observed the cover
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type and habitat that were present, specifically searching for dense young jack
pine stands for the Kirtland’s warbler habitat, large high crowning trees, ideal for
raptor nests, and “frost pocket” areas where special species might be found. Id.
Mr. Farrier indicated that his focus was on the potential presence of protected
upland species and habitat, including Bald Eagle nests, other raptor nests,
Kirtland’s warbler habitat, frost pockets and dead trees with cracks or loose bark
for bat roosts. Id. Mr. Farrier explained that the reason he focused on these
protected species and habitats was because of his knowledge of the potential
range and location of such species, their habitat, as well as MNFI Rare Species
Review letters for other sites having a similar habitat to that along the pipeline
route. He explained that he summarized his observations and conclusions
regarding the habitat that was present and the absence of protected species within
the easement and pipeline route in the environmental impact assessment report he
prepared and submitted to the Commission in this matter.
Regarding wetlands and other surface waters, the environmental impact
assessment submitted for the Garfield 36 Pipeline project indicates that the
proposed route involves one wetland crossing, and further indicates that
directional drilling will be used to avoid disturbance to this area. The proposed
route includes directional drilling around wetlands for a distance of 1,027 feet.
The assessment also provides that the directional drilling and construction activity
involved will not result in ground disturbance to the wetland or surface
waterbody banks and that a minimum buffer of 50 feet from wetland boundaries
will be maintained. It further indicates that the proposed construction activity
will not disturb the stream contained in the larger wetland and that a minimum
depth of 10 feet will be maintained under the streambed.
Regarding the construction methods employed, Mr. Farrier writes in his
environmental impact assessment that the clearing, removal of topsoil, and
grading will be limited to a minimum area required for safe and efficient
construction. The assessment discusses the procedure for the clearing of large
vegetation, such as shrubs and trees, within the pipeline route. The assessment’s
summary concludes that the route proposed minimally impacts the local
ecosystems and land use as it runs along existing corridors and is directionally
drilled around the wetland. Therefore, the assessment concludes that the
construction of the Garfield 36 Pipeline will not cause any new corridors.
The Commission also considered the public comments filed in this matter
regarding the Garfield 36 Pipeline. Specifically, the Commission reviewed the
comments the petitioners filed. The petitioners point out in their comments that
they had, in their previous filings with the Commission, criticized the
environmental impact assessments prepared for the pipeline construction projects
on the grounds that Mr. Farrier lacked the credentials to support his claim to be a
biologist, claimed no knowledge and checked no inventories regarding protected
species, and because the assessments only purported to analyze conditions within
the 35-foot easements as opposed to the surrounding vicinity. The comments
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also note that the supplement does not discuss forest fragmentation resulting from
future development of gas wells for gas production.
Regarding these statements, the Commission notes that Mr. Farrier’s
supplemental information provides an overview of his education and years of
experience conducting surveys for the potential presence of protected species
and their habitat, and also explains the lengths he went to in this matter to rule
out the potential presence of protected species within the pipeline routes. With
regard to the petitioners’ criticism that the assessments improperly focus on the
impact to the 35-foot easement as opposed to the “surrounding vicinity,” the
Commission observes that the pipeline installation project considered here does
not, in and of itself, have much of an impact on the surrounding vicinity because
all of the construction and installation work would legally have been limited to
the easement area as opposed to the surrounding vicinity. Finally, a consideration
of possible future gas well development for gas production and forest
fragmentation resulting from gas production is neither ripe for review nor within
the scope of the Commission’s jurisdiction in this matter.2
The petitioners’ comments discuss their affidavits as well as the affidavit
of Gary Cooley, which were attached as “exhibits” to a previous petition for
intervention and that apparently document past observations of Kirtland’s
warblers in the petitioners’ [backyards] as well as Cooley’s observations of two
dead Kirtland’s warblers in the path of an Encana/DTE power shovel. The
pipelines in this matter were initially approved ex parte, the Commission has yet
to grant the petitioners intervention, and the exhibits the petitioners attached to
their various filings were not a part of the initial company application and filing
the Commission considered when it originally approved of the pipelines. Thus,
the Commission has not considered these affidavits, nor are they a part of the ex
parte record in this matter. Nevertheless, the Commission notes that the
petitioners have never alleged that their [backyards] are located within the 35-foot
easement within which the pipelines were constructed. Moreover, the public
comments filed do not include Mr. Cooley’s basis for concluding that the birds
he observed are in fact protected species or that they were presumably harmed
because of pipeline construction activity within the proposed pipeline routes.
Moreover, Encana’s failure to inform DNR or adequately respond to Mr. Cooley’s
observations is of little consequence here both because the company’s subsequent
activities presumably occurred after the Commission initially approved
construction of the pipelines and because they are outside the scope of this order.
Petitioners also take issue with the timing Mr. Farrier chose to conduct his
on-site surveys of the proposed pipeline routes, suggesting that these surveys
occurred in either mid-May or January, a time when Kirtland’s warblers would
not yet have arrived in northern Michigan. As petitioners acknowledge in their
comments, the exact day or month during which Mr. Farrier conducted his on-
site surveys is unclear. Nevertheless, Mr. Farrier writes that he conducted
surveys at each location on two different occasions, both an initial review before
Encana’s engineers agreed on a proposed route, and a second more thorough
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survey afterwards. Further, the fact that Mr. Farrier did not just limit his survey
to actual sightings of protected species but also looked for the presence of dense
young jack pines and other natural features that would serve as habitat for certain
the Kirtland’s warbler provides the Commission with some assurance that, even in
the event that Mr. Farrier conducted both the initial review and the more
thorough on-site survey during the winter months when the Kirtland’s warbler
was outside of Michigan, he would still have discovered its habitat in undertaking
a thorough on-site survey during the winter months when the protected species
was elsewhere. Thus, the fact that the Commission lacks information regarding
the exact dates that the on-site surveys were conducted is not dispositive on the
issue of whether the proposed project impairs the environment.
Finally, petitioners also criticize the environmental impact assessments
submitted because they suggest that Mr. Farrier ignored wetland and stream
areas along the Garfield 36 pipeline route, which amounted to 1,027 feet that was
in the vicinity of the pipeline to be constructed. As both DTE Gathering and the
petitioners acknowledge, those areas were left undisturbed due to the use of
directional drilling. Because there was no disturbance to the surface, and no
impact to threatened or endangered species, the Commission finds it reasonable
that Mr. Farrier would focus on the potential presence of protected upland
species and habitat. The Commission is satisfied based on the information
provided in the assessment and supplemental information provided that the
proposed project will not destroy, impair, or pollute wetlands or other surface
waters.
Given the fact that 90% of the proposed route follows already existing
rural roads, based on the assessment’s determination that there will be no
disturbance to wetlands, streams, or other surface waters, in light of the
assessment’s conclusion that construction of the pipeline will not cause any new
corridors, and based on the assessment and the supplemental information
provided that adequately describes the efforts made and resources used to
determine no protected wildlife exists in the proposed easement or along the
proposed route, the Commission finds that the Garfield 36 Pipeline project as
proposed will not impair the environment.
Beaver Creek 11 Pipeline Project
Regarding the Beaver Creek 11 Pipeline project in Case No. U-17196, the
application and exhibits presented show a 3.1 mile route that runs entirely along
existing county roads or well access roads, again avoiding the need to create new
corridors. Encana’s application provides that the Beaver Creek 11 Pipeline “will
be constructed adjacent to the well pad access road on Michigan Department of
Natural Resource[s] (MDNR) land and within county road right of way on MDNR
land.” January 11, 2013 Application, p. 2. Encana submitted an environmental
impact assessment as its Exhibit D that indicates the impact on the environment is
“minimal.”3 The assessment indicates the pipeline route runs primarily through
mixed deciduous forest, and that, to the best of the author’s knowledge there are
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no threatened or endangered species within the proposed easement or route. The
assessment further indicates that there are no wetlands or stream crossings within
the proposed route.
Having reviewed the application and supporting exhibits, the Commission
further determines that there is no impairment to the environment resulting from
the construction or installation of the Beaver Creek 11 Pipeline. The proposed
3.08-mile route runs along county and well access roads and crosses no wetlands
or surface waters. The environmental impact assessment indicates that the entire
proposed route is adjacent to existing corridors and does not require the creation
of new corridors. It also indicates that the route traverses lands owned by the
State of Michigan, with the exception of one area that is privately owned, where
the route is in county right-of-way for King Road. The assessment further
describes the land through which the proposed route runs as primarily mixed
deciduous forest with Sugar Maple, Red Oak, Aspen and Birch being the dominant
species.
In the environmental impact assessment, Mr. Farrier explains that there are
no threatened or endangered species within the proposed easement to the best of
his knowledge. Again, Mr. Farrier’s August 4, 2015 letter states that the
environmental impact assessment process began with Encana submitting a
request to the MNFI staff requesting a review of the MNFI records regarding the
potential presence of protected species in the vicinity of the well sites and access
roads used for the wells to which the proposed pipelines would ultimately be
connected. The Rare Species Review response letter for the Beaver Creek 11
Pipeline stated that it was “highly unlikely that listed species will be impacted by
this activity.” The response letter indicates that the listed species is a butterfly
called Henry’s elfin. Further, Mr. Farrier’s August 4, 2015 letter explains that
the determinations made in the Rare Species Review response letter related to the
protected or special concern species or other natural features within 1.5 miles of
the proposed well site, which would include 56% of the Beaver Creek 11
pipeline route. As with the Garfield 36 Pipeline, Mr. Farrier again indicates in his
August 4, 2015 letter that he conducted two reviews of the pipeline route, an
initial review of the route for “obvious environmental concerns” and a more
thorough onsite-survey of the pipeline route for the presence of protected species
and habitat that might be impacted by pipeline construction. As with the
Garfield 36 Pipeline, Mr. Farrier conducted his on-site survey by traveling the
entire pipeline route and observing the cover type and habitat present. Again, the
focus was on the potential presence of protected upland species and habitat. Mr.
Farrier’s observations led him to conclude in the environmental impact
assessment that no protected wildlife is known to exist within the proposed route.
Mr. Farrier discusses in the environmental impact assessment the
construction methods to be used, explaining that the clearing, removal of topsoil,
and grading will be limited to the minimum area required for safe and efficient
construction and further setting forth the procedure for the removal of large
vegetation such as trees and shrubs. It also discusses the method for excavating
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and sloping the trench-line or ditch, and explains that gaps will be made in subsoil
stockpiles so as to avoid ponding or excessive diversion of natural runoff during
storm events in addition to implementation of erosion and sedimentation permit
conditions, where applicable, and best management practices. The assessment’s
description of the construction methods further provides that, after construction,
the workspace will be graded as near as possible to the pre-construction contours
and/or restored in accordance with Crawford County Road Commission permit
requirements and natural runoff and drainage patterns will be restored. In
addition, permanent erosion control measures will be installed and all disturbed
workspace will be reseeded. Again, as with the assessment for the Garfield 36
Pipeline, Mr. Farrier’s environmental impact assessment for the Beaver Creek 11
Pipeline concludes by indicating that the proposed route minimally impacts the
local ecosystems and land use, and that the construction of this pipeline will not
cause any new corridors.
The Commission, having considered the applications and accompanying
environmental impact assessment submitted as well as the supplemental
information provided by Mr. Farrier, concludes that the construction and
installation of the Beaver Creek 11 Pipeline as proposed does not impair the
environment. The Commission’s findings and conclusions that it articulates in
this order with respect to petitioners’ filed comments apply equally to both the
Garfield 36 and the Beaver Creek 11 pipeline applications. Having considered
the record in this matter, the Commission is satisfied that competent, material,
and substantial evidence on the whole record supports the Commission’s
conclusion that environmental impairment has not been established.
The Commission further notes that the remaining criteria that the Court
instructed the Commission to consider on remand, i.e. “whether there was a
feasible and prudent alternative to the impairment; and, whether the impairment
was consistent with the promotion of the public health, safety, and welfare in
light of the state’s paramount concern for the protection of its natural resources
from pollution, impairment or destruction” pertain to an agency finding that
impairment to the environment has occurred. Here, however, the Commission
concludes, based on the record before it, that the proposed pipeline projects did
not impair the environment. Accordingly, the Commission need not consider
feasible and prudent alternatives to the impairment, or whether the impairment
was consistent with the promotion of the public health, safety, and welfare in light
of the state’s paramount concern for the protection of its natural resources. For
the reasons articulated in this order, the Commission finds that the proposed
Garfield 36 and Beaver Creek 11 Pipelines will serve the public convenience and
necessity, and that ex parte approval is appropriate.
__________________________________________________________________
2
The Commission notes that, although petitioners alleged in their various filings
with the Commission that the pipelines would serve as “bait” inviting the
construction and addition of new gas wells in the area, the regulation of gas wells,
or any potential impairment to the environment caused by hydraulic fracturing in
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Michigan is beyond the purview of the Commission. The Commission lacks the
statutory authority to regulate hydraulic fracturing, or the drilling of gas wells in
Michigan. That authority, and the concomitant environmental obligations that it
engenders, rests with the State Supervisor of Wells and the Department of
Environmental Quality. Here, the Commission’s sole concern on remand is the
effect of the pipelines’ construction and operation on the environment and the
state’s natural resources.
3
It is important to note that Mr. Farrier’s observations that the proposed pipeline
projects have a minimal impact on the environment are not the same as a
Commission finding that there is no impairment to the environment. The
Commission applies the plain meaning to these terms and further notes that Mr.
Farrier’s determination that the proposed routes minimally impact local
ecosystems and land use supports its conclusion that the projects as proposed do
not impair the environment.
__________________________________________________________________
Appellants claimed an appeal from each PSC order and this Court consolidated the
appeals for hearing and decision.
II. STANDARD OF REVIEW
Pursuant to MCL 462.25, all rates, fares, charges, classification and joint rates,
regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful
and reasonable. See Mich Consol Gas Co v Pub Serv Comm, 389 Mich. 624, 635-636; 209
NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of proving by clear
and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8). A final
order of the PSC must be authorized by law and be supported by competent, material, and
substantial evidence. Const 1963, art 6, § 28; Attorney Gen v Pub Serv Comm, 165 Mich. App.
230, 235; 418 NW2d 660 (1987).
We give due deference to the PSC’s administrative expertise, and we will not substitute
our judgment for that of the PSC. Attorney Gen v Pub Serv Comm No 2, 237 Mich. App. 82, 88;
602 NW2d 225 (1999). We give respectful consideration to the PSC’s construction of a statute
that the PSC is empowered to execute, and we will not overrule that construction absent cogent
reasons. In re Complaint of Rovas Against SBC Mich, 482 Mich. 90, 103; 754 NW2d 259 (2008).
If the language of a statute is vague or obscure, the PSC’s construction serves as an aid to
determining the legislative intent, and will be given weight if it does not conflict with the
language of the statute or the purpose of the Legislature. Id. at 103, 108. However, the
construction given to a statute by the PSC is not binding on us. Id. at 103. “Whether the PSC
exceeded the scope of its authority is a question of law that we review de novo.” In re
Complaint of Pelland Against Ameritech Mich, 254 Mich. App. 675, 682; 658 NW2d 849 (2003).
III. ANALYSIS
Appellants argue that the PSC erred by denying their second attempt to intervene.
Appellants assert that this Court’s decision vacating the PSC’s previous orders approving the
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applications for the pipelines vacated the PSC’s previous order denying the first motion to
intervene. Appellants also assert that their interests were affected by the pipelines and they were
entitled to intervene on that basis.
A lower court or tribunal must strictly comply with an appellate court’s instructions on
remand. K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich. App. 523, 544-545; 705
NW2d 365 (2005).
Appellants did not appeal the PSC’s order denying their first motion to intervene. In
Buggs, supra, this Court vacated the PSC’s orders granting the applications to construct the
pipelines and remanded the matter to the PSC for further consideration pursuant to applicable
requirements, but did not disturb the PSC’s order denying appellants’ motion to intervene.
Appellants’ assertion that by vacating the PSC’s orders granting the applications this Court also
vacated the PSC’s order denying their motion to intervene is without factual or legal support. An
appellate argument must be supported by citation to appropriate authority or policy. MCR
7.212(C)(7); Woods v SLB Prop Mgt, LLC, 277 Mich. App. 622, 626-627; 750 NW2d 228 (2008)
(no citation of authority for assertion that party entitled to evidentiary hearing). In addition, in
the order denying appellants’ second motion to intervene, the PSC reviewed appellants’ position
but found that no subsequent developments required it to change its previous conclusion
regarding the timeliness of appellants’ motion. We find no basis for appellate relief.
Next, appellants argue that the PSC, when conducting its environmental impact review,
should have considered the environmental and forest-fragmenting effects in the vicinity of the
lines and not simply within the routes and the corridors surrounding the routes.
In its initial decision, this Court held that the PSC failed to address the environmental
impact of the pipelines when making its initial review of the applications. Buggs, unpub op at 9-
11. The Buggs Court vacated the PSC’s orders approving the applications and remanded this
matter with instructions that the PSC “specifically address the environmental impact as required
under the MEPA and the decision in State Hwy Comm, 392 Mich. at 184-190 (opinion by
WILLIAMS, J.).” Buggs, unpub op at 11.
On remand, the PSC reexamined the Environmental Impact Assessments (EIAs)
submitted by Encana with the original applications, and requested and received supplemental
information regarding the environmental impact of the pipelines. Thereafter, the PSC discussed
the evidence as it applied to each pipeline and concluded that neither pipeline would have a
negative impact on the environment. The PSC specifically noted the parameters of the remand
as constructed by this Court. The PSC noted appellants’ comments regarding the environmental
impact on the vicinity surrounding each pipeline, as well as the risk of forest fragmentation
resulting from future construction. The PSC concluded that the impact on the vicinity around
each pipeline would be minimal because construction was limited to the easement area, and that
the topic of future forest fragmentation was neither ripe for review nor within the PSC’s
jurisdiction.
Appellants assert that the PSC erred by failing to consider the environmental impact in
the vicinity of the pipelines, and cite what they characterize as the “federal vicinity rule” as
stated in 18 CFR 380.12(e)(5). This argument is without merit. The PSC conducted proceedings
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as directed by this Court on remand. Neither MEPA nor the State Hwy Comm decision required
the PSC to consider the federal vicinity rule when conducting its analysis. The PSC was
required to strictly comply with this Court’s instructions on remand, K & K Constr, 267 Mich
App at 544-545, and did so. Nothing more was required.
Next, appellants argue that Encana’s EIAs were inadequate because they failed to detect
the presence of Kirtland Warblers, a bird in the area. The contend that Dean Farrier, the
biologist who conducted the EIAs, was not put forward as an expert and did not conduct a
complete and competent search on which the PSC could properly rely.
The law-of-the-case doctrine provides that an appellate ruling on a particular issue binds
the appellate court and all lower tribunals with regard to that issue. Reeves v Cincinnati, Inc
(After Remand), 208 Mich. App. 556, 559; 528 NW2d 787 (1995). A question of law decided by
an appellate court will not be decided differently on remand or in a subsequent appeal in the
same case when the material facts remain the same. Id. “The doctrine applies to questions
specifically decided in an earlier decision and to questions necessarily determined to arrive at
that decision.” Webb v Smith (After Second Remand), 224 Mich. App. 203, 209; 568 NW2d 378
(1997). Whether the law-of-the-case doctrine applies is a question of law that we review de
novo. Ashker v Ford Motor Co, 245 Mich. App. 9, 13; 627 NW2d 1 (2001).
In their appeal of the PSC’s initial orders approving Encana’s pipeline applications,
appellants argued that Farrier’s qualifications, and therefore his EIAs, were insufficient to allow
the PSC to make adequate findings for an analysis of the environmental impact of the pipeline
projects. The Buggs Court rejected this argument, holding:
Buggs and Bonamie argue that Farrier’s environmental impact
assessments were insufficient to allow the Commission to make the requisite
findings required by the MEPA. They claim that the assessments themselves
should have caused the Commission to realize that they were inadequate on their
face: Farrier analyzed the impact within the proposed easement, but did not
include the impact on the environment in the vicinity; Farrier professed not to
know of protected or endangered species, but did not certify that there were none;
and Farrier claimed to be a biologist, but listed no supporting credentials. They
also assert that the assessments were not signed or dated. However, the cover
pages bore a date of January 2013 and indicated that they were prepared by
Farrier. Buggs and Bonamie cite no authority that speaks to the requisite
sufficiency of proofs on which the Commission must base its decision. The
assessments described the routes along existing corridors, indicated that to the
best of Farrier’s knowledge “there were no threatened or endangered species
within the proposed easements” or “along the proposed routes,” described the
clearing that would take place, and represented that the “workspace will be graded
as near as possible to pre-construction contours and/or restored in accordance
with Kalkaska County Road Commission permit requirements, and natural runoff
and drainage patterns will be restored. All existing improvements, such as fences,
gates, bar ditches, and beaver deceivers, will be maintained and repaired to as
good as or better than pre-construction conditions. Permanent erosion control
measures will be installed, and all disturbed workspace will be reseeded.”
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Although Buggs and Bonamie’s claims that the Kirtland Warbler is
protected or endangered and that its habitat would be affected are troubling,
allegations to this effect were not before the Commission at the time it reviewed
the applications. Moreover, allegations that Encana Oil intended to add more
pipelines that would create new corridors would seem to be pertinent to future
applications for pipeline approval, but not to the lines at issue. While the
Commission might have been inclined to seek more information if cognizant of
the requirement that it assess whether there were feasible and prudent alternatives
and whether the conduct is consistent with the promotion of the public health,
safety, and welfare in light of the state’s paramount concern for the protection of
its natural resources from pollution, impairment, or destruction, the
representations made by Farrier in the Assessments were not inherently suspect
such that they could not be deemed substantial evidence on the whole record to
support the Commission’s findings. [Buggs, unpub op at 10-11.]
In its opinion on remand, the PSC noted that appellants had claimed that Farrier lacked
the credentials to allow his EIAs, which were supplemented with further information and
analysis, to be considered credible, and again found Farrier to be credible and his EIAs reliable.
The holding of the Buggs Court controlled on remand. At issue in the original appeal
was whether the PSC conducted the required environmental impact analysis before granting
Encana’s applications to build the pipelines. As noted, this Court held that the PSC did not do
so, and consequently vacated the PSC’s orders and remanded for further proceedings. Buggs,
unpub op at 11. However, the Buggs Court held that Farrier’s EIAs were substantial evidence on
which the PSC was entitled to rely. Id. at 10-11. Thus, the issue raised by appellants in these
appeals was raised and decided in the previous appeal. The holding of the Buggs Court was
binding on remand under the law-of-the-case doctrine and we find no error requiring reversal.
Finally, appellants argue that the PSC should have considered and found credible
information contained in the second affidavit from Gary Cooley, who averred that he saw dead
Kirtland’s Warblers at or near a pipeline construction site.
In Buggs, this Court noted, in ruling that Farrier’s EIAs were to be viewed as competent
evidence, that appellants’ claim that two Kirtland’s Warblers were found dead at Encana’s
excavation site was not before the PSC at the time the PSC considered Encana’s applications to
build the pipelines. Buggs, unpub op at 10. Subsequently, on remand, the PSC found that
because appellants had not been granted intervenor status, the affidavit was not part of the record
before it. We find no error requiring reversal with regard to this finding.4
4
Appellants insist that the affidavit should have been considered as part of the public
commenting process. However, it is unreasonable to hold that the PSC must rule upon or take
into explicit consideration every single comment raised by members of the public. At any rate,
the fact remains that the PSC’s order was supported by competent, material, and substantial
evidence on the whole record.
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Affirmed.
/s/ Jane E. Markey
/s/ William B. Murphy
/s/ Patrick M. Meter
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