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Michigan Case Demonstrates Growing Importance of Courts for Water Issues

According to a recent report by Deutsche Bank, the number of US lawsuits related directly or indirectly to climate change rose by nearly 300% between 2009 and 2010.  The proliferation of such lawsuits is in large part a product of Congressional failure to legislate reductions in greenhouse gas emissions. Indeed, many of these cases focus on regulatory issues and/or access to information regarding emissions and air quality.

The Au Sable River in Michigan is a popular recreational destination. It was threatened by a 2005 permit that the state Dept. of Environmental Quality issued to a Houston-based energy company. The December 29th Supreme Court ruling determined that the permit was illegal under MEPA. (Source: Fly Fishing Forum)

As an area of justice, climate (and other environmental) lawsuits are chartering new territory. While it’s unlikely that cases seeking compensation for climate change related injury are winnable in the near future, there is still potential for such cases to influence public awareness and political and economic perception of climate change. As Christopher Schwarte, lawyer for the Foundation for International Environmental Law and Development in England, argues, current environmental lawsuits may encourage consideration of future liability risks for emitters.

In addition to cases focused more broadly on climate change, there have also been a growing number of cases focused specifically on water regulations. Examples of the increasing importance of courts in the arena of water law abound (I recently wrote about a case involving EPA-mandated water rules in Florida), but the most current noteworthy case was decided in the Michigan Supreme Court at the end of December.

The decision on Anglers of the Au Sable v. Michigan Department of Environmental Quality and Merit Energy Company has huge implications for past and future water-rights cases in the state. The case revolves around a conflict that began in 2005, when the Michigan DEQ gave Houston-based Merit Energy a permit to discharge up to 1.15 million gallons per day of treated wastewater from a contaminated site into Kolke Creek, which is in a separate watershed from the contaminated site and which flows into the Au Sable River.

Anglers of the Au Sable, an environmental conservation group, contested the permit, claiming it would threaten the river (and consequently, the fish that inhabit the river as well as the Anglers who enjoy their presence) via a massive diversion of water from a contaminated watershed to a healthy one. The 600 members of the Anglers group mounted a legal campaign to block the permit issuance.

Initial court rulings favored the Anglers. As the case progressed, however, the Michigan Court established a precedent they referred to as the “reasonable use” balancing test. Under the doctrine of reasonable use, “a riparian owner (in this case, the state) may make any and all reasonable uses of the water, as long [as] they do not unreasonably interfere with the other riparian owners’ (the Anglers) opportunity for reasonable use”. The term ‘reasonable use’ was not explicitly defined and instead, was to be determined on a case-by-case basis.

On December 29 of last year, however, the court rendered its ultimate verdict: a narrow 4-3 majority in favor of the Anglers’ group. The decision not only reversed the previous ruling based on reasonable use but also reinvigorated the Michigan Environmental Protection Act (MEPA) and overturned some important rulings on past cases dealing with water rights and laws.

According to Jim Olson, lead attorney for the Anglers, the Michigan Supreme Court’s decision has strengthened protection of all state waters. Olson said that the verdict of the Anglers case is “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.” Additionally, the case set a precedent for state waters being viewed and protected as a public trust, which differs from the precedents set in previous water-rights cases in the state.

Justice Alton Thomas Davis was appointed to the Michigan Supreme Court following the resignation of Justice Elizabeth Weaver. Author of the majority opinion in the Anglers case, the verdict is less likely to be upheld now that his term is up. (Source: AP Photo/Al Goldis)

The implications the decision has for MEPA are particularly weighty. Passed in 1970, MEPA gave all state citizens the right to hold the state accountable for permitting any pollution of waterways that negatively impacted the general public.  Over the past decade, however, the ability of citizens to enforce MEPA in courts and against the state was limited by several Supreme Court decisions.

In 2004, the Michigan Supreme Court’s decision in the Preserve the Dunes, Inc. v. Department of Environmental Quality case limited the ability of private citizens to file suit against the state for permitting pollution by third parties. In the recent Anglers of the Au Sable decision, the majority explicitly overruled Preserve the Dunes, reaffirming that state agencies can be sued under MEPA for water pollution resulting from state-issued permits.

Also overturned by the Anglers decision was the Court’s ruling on Michigan Citizens for Water Conservation v. Nestle Waters North America Inc. in 2007. The Michigan Citizens verdict adopted a very restrictive interpretation of standing; while MEPA granted all citizens standing to file a lawsuit, the 2007 decision required citizens to establish that “he/she has suffered or will imminently suffer a concrete and particularized injury”. The Anglers decision overruled this restrictive standing requirement and reaffirmed that any citizen may file a claim under MEPA.

Unfortunately, the victory of the Anglers decision may be brief. Supreme Court Justice Alton Thomas Davis, who penned the majority opinion, was appointed to his seat to finish Elizabeth Weaver’s term after she resigned. Justice Davis’ partial term is up and his Republican replacement is unlikely to support the decision on Anglers, which could be hugely important in such a closely decided case. With the dissenting judges now in the majority following the 2010 elections, environmentalists may soon have another reason to label last year’s elections as a poor foreshadowing for environmental policy in the new decade.

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