An environmental group’s legal victory to block contaminated dumping into a popular fly-fishing stream sets precedent to protect Michigan waters from pollution.
By Steve Kellman
Circle of Blue
By siding with the Anglers of the Au Sable in a long-running lawsuit over a state permit that threatened the celebrated trout stream, the Michigan Supreme Court has strengthened protection of all state waters in the process, according to lead attorney Jim Olson.
The dispute began in 2005, when the Michigan Department of Environmental Quality (DEQ) gave Houston-based Merit Energy a permit to discharge up to 1.15 million gallons of treated wastewater from a contaminated site into a creek that flows into the Au Sable River. The discharge plan was part of Merit Energy’s plan to clean up a former Shell Oil production facility in the Manistee River watershed.
Anglers of the Au Sable—a 600-member environmental conservation group—mounted a legal campaign to block the move, arguing that it threatened the river’s health and amounted to a massive diversion of water from one watershed to another.
While early court rulings favored the Anglers, a state appeals court ruling dismissed the DEQ (now the Department of Natural Resources and Environment) from the suit.
But on December 29, a narrow 4-3 majority of the court rendered its verdict, ruling that Merit Energy’s discharge plan was “manifestly unreasonable” and that the DEQ should be held accountable for violating the Michigan Environmental Protection Act.
In the process, the court overruled a previous decision from the 2004 case of Preserve the Dunes v. DEQ, which let the state environmental agency off the hook for permitting a sand mining operation on nationally protected dunes.
Traverse City-based environmental attorney Jim Olson, who specializes in water rights, represented Anglers of the Au Sable in the recently decided case and spoke with Circle of Blue about the outcome.
Olson called the decision “very important” and “crucial to maintaining the value and use of property rights, as well as the value and use of the state’s lakes, rivers, and streams.”
“The public and private property owners won in this case,” he said.
The court decision also set a precedent that state waters should be protected as a public trust, rather than the less rigorous concept of a “reasonable use balancing test,” which had been used in a previous lawsuit, Michigan Citizens for Water Conservation v. Nestlé Waters North America. In that 2007 case, the court ruled with the bottled water giant, which planned to pump millions of gallons annually from a Mecosta County aquifer.
Olson thinks the decision in the Au Sable case will help overturn the precedent set in the Nestlé Waters case, less than three years earlier.
“The use of the balancing test is very dangerous,” Olson told Circle of Blue. “It puts a price tag on water…Property rights would be reduced to political science and economic decisions.”
The decision also helps restore the rights of Michigan citizens to sue the state under the Michigan Environmental Protection Act of 1970. The court’s now-overturned ruling in the Preserve the Dunes case had exempted DEQ permit decisions from the threat of citizen lawsuits—a right enshrined in the state’s 1970 legislation.
The December 29 decision restored the ability of any Michigan citizen to sue the state over environmental harm, including in cases where the harm was caused by a DEQ permit decision.
The decision may be short-lived, however.
Supreme Court Justice Alton Thomas Davis, who wrote the majority opinion in the Anglers decision, had been appointed to the state’s top court in August. Davis was filling the last four months of Justice Elizabeth Weaver’s term after her resignation. The term expired days after the court issued its opinion on the Anglers case, and Republican-backed Mary Beth Kelly has since taken the seat.
The three judges who voted against the December 29 decision signed on to a scathingly worded dissent—authored by Judge Robert P. Young Jr.—calling the lead opinion “extraordinarily lawless and profoundly dangerous” and warning that overturning the Preserve the Dunes ruling will “wreak havoc on this state’s legal system.” Judges Maura Corrigan and Stephen Markman signed the dissent.
The dissenters also argued that the case should have been dismissed in June 2010, when Merit Energy had abandoned its cleanup plans and submitted a new plan that did not involve dumping water into the Au Sable.
Steve Kellman is a Traverse City-based reporter for Circle of Blue. Reach Kellman at circleofblue.org/contact.
All three opinions—lead, partially concurring, and dissenting—can be found in this document.
Read more on Circle of Blue: Michigan Supreme Court Case Could Strengthen Protection of State’s Lakes, Streams and Groundwater