Court ruling allows public to sue over pollution permits

A recent ruling by the Michigan Supreme Court has restored the public’s right to file suit against the state over permits that could result in actions that contaminate the environment.

During the last few days of 2010, the Michigan State Supreme Court reached a 4-3 decision in the Anglers of the AuSable, Inc. vs. Merit Energy and the Michigan Department of Environmental Quality (DEQ) case, essentially reversing the court’s 2004 ruling in the Preserve the Dunes vs. DEQ case.

The Anglers of AuSable filed a suit in 2006 against Merit Energy and the DEQ, claiming violations of their riparian rights and the Michigan Environmental Protection Act (MEPA).

Merit Energy had arranged with the DEQ to treat an underground contaminant plume by extracting and cleaning the contaminated water and material and discharging the treated water on DNR land, which would then flow into Kolke Creek and eventually the AuSable River.

“They wanted to dump millions of gallons a day every day for 10 years,” said Jim Olson, an attorney for Anglers of the AuSable. “They wanted to pipe the treated contaminated water to the wetlands above Kolke Creek.”

After the case had been heard at the circuit court and state Court of Appeals levels, the state Supreme Court ruled 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.”

This essentially reverses the court’s decision in the 2004 Preserve the Dunes case, when it determined that the state couldn’t be held accountable under the MEPA for issuing a permit, as the court determined that the permit process was “unrelated to any subsequent environmental harm caused by the permitted action.”

However, Justice Alton Thomas Davis wrote in his leading opinion that he found the Preserve the Dunes dissent was correct when it stated the majority’s belief “that permit eligibility is unrelated to whether the conduct permitted will harm the environment is untenable.”

He further explained that, “Without a permit from the DEQ, a party … lacks the authority to commence the conduct that will harm the environment.”

Davis also wrote that a permit from the DEQ acts as “the trigger for environmental harm to occur” and that the permit process is “entirely related to the environmental harm that flows from an improvidently granted, or unlawful, permit.”

Olson said the court’s decision in the Anglers of the AuSable case is “very significant.”

“It restores the rights of citizens to get in front of a circuit court judge to review permit decisions by the state that would result in pollution and impairment,” he said. “The court has now clarified that permits are triggers for harm, and citizens can now sue.”

Although there is now a Republican majority on the Supreme Court with the start of a new term, Olson said he doesn’t believe the recent ruling will be overturned.

“This decision has been argued and decided. The new justices are not a part of that decision, so it should stand,” he said.

Bruce Pregler, president of the Anglers of the AuSable, said the trial was a “long battle” but “well worth the fight.”

“We are pleased with the outcome,” he said. “The Anglers of the AuSable will continue to watch over the cold waters and trout streams of Michigan. We will be there to address any harms that may negatively impact the watershed.”