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Tuesday, August 10, 2004

Environment - Update on Michigan "mining the dunes" case

On Oct. 13, 2003 the Indiana Law Blog posted this entry about a citizens' suit in Michigan over a permit granted by the Michigan DEQ:

Preserve the Dunes claimed that the Michigan Department of Environmental Quality (DEQ) improperly granted defendant Technisand a permit to mine sand in a designated critical dune area, and that such action would impair or destroy that natural resource. Following a bench trial, the trial judge found that Preserve the Dunes failed to show that any adverse impact on natural resources resulting from sand mining would rise to the level of impairment or destruction of natural resources within the meaning of the Michigan Environmental Protection Act (MEPA, part 17 of the Natural Resources and Environmental Protection Act (NREPA). The Court of Appeals reversed in a published decision.
Yesterday (August 9, 2004) the Benton Harbor Micigan Herald-Palladium reported:
LANSING -- The Michigan Supreme Court has rejected a citizens group's claim that a state agency violated the law when it issued a permit in 1996 to mine sand in a critical sand dune area of Hagar Township. A dissenting justice called the ruling a "devastating blow" to the state's main environmental law.

The high court in a 4-3 vote ruled that the Michigan Environmental Protection Act (MEPA) "does not authorize such a collateral attack" by the citizens group, Preserve the Dunes, and sent the case back to the Michigan Court of Appeals. The appellate court had invalidated Bridgman-based TechniSand's permit to mine the dunes, but "The Court of Appeals conclusion is incorrect," the Supreme Court ruled.

The Supreme Court justices said the "only issue properly before us" is whether the MEPA allows a challenge to a decision by the Michigan Department of Environmental Quality to issue the sand mining permit. The act does not allow such a challenge, the justices ruled.

The ruling said the reasoning from the plaintiffs included "fuzzy logic" and would result in a permitting process "that can never be final."

"...every permit that has ever been issued would be subject to challenge; any undotted 'i' or uncrossed 't' could potentially invalidate an existing permit," the court said. The Legislature did not intend MEPA "to destabilize the state's permitting system in this manner," the ruling stated.

That "would cripple economic expansion in Michigan and probably lead to disinvestment," the court ruling said. "No one would invest money to obtain a permit that is subject to endless collateral attacks."

Dissenting Justice Marilyn Kelly wrote, "Through the decision in this case, a court majority of four sanctions the DEQ's unexplained and illegal about-face on TechniSand's critical dune mining permit. In the process, it strikes a devastating blow to Michigan's environmental law. This majority perpetuates the DEQ's unprincipled decision to permit illegal mining of critical dunes by insulating it from the scrutiny of the Michigan environmental protection act...

"Its holding that the DEQ's decision to grant the permit to mine critical dunes is 'unrelated to' the destruction of those critical dunes defies reality. It mocks our Legislature's intent to prevent environmental harm."

Here is the decision, Preserve The Dunes, Inc v Michigan Dep't of Envtl Quality (7/30/04)

Another decision handed down the same day by the court, National Wildlife Fed'n & Upper Peninsula Wildlife Council v Cleveland Cliffs Iron Co & Empire Iron Mining P'ship (7/30/04), compounds the concerns of many. The Detroit Free Press reported on this ruling on August 5, 2004:

The Michigan Environmental Protection Act is the sledgehammer in the toolbox of state environmentalists and citizens who have used it to protect Michigan sand dunes, groundwater and clean air.

Now, it may be in jeopardy, its supporters say.

In a unanimous ruling last week, the Michigan Supreme Court upheld the National Wildlife Federation's MEPA lawsuit against an Upper Peninsula mining company. It seemed to be a victory for MEPA backers.

But four of the seven justices ventured further to issue a warning: Citizens must show direct harm from an environmental problem before they may sue. * * *

[E]nvironmental protection is the job of state officials and regulators -- not citizens with only tangential interests in an issue, wrote Chief Justice Maura Corrigan and Justices Stephen Markman, , Clifford Taylor and Robert Young Jr. Otherwise, they said, "there would be little to stand in the way of the judicial branch becoming intertwined in every matter of public debate."

The 51-page majority opinion is a precursor to MEPA's erosion, some lawyers and environmentalists predicted.

"Now, in addition to proving an injury to the environment, MEPA plaintiffs will have to prove an injury to themselves, which is more particular than that suffered by the general public," said Mark Richardson, a Macomb County assistant prosecutor specializing in environmental law.

The other three justices took exception to their colleagues' additional commentary on MEPA. They agreed that the Wildlife Federation had standing to file the suit, but disagreed with the rest of the majority opinion.

The ruling means the federation and co-plaintiff Upper Peninsula Wildlife Council may proceed in a local court with a suit against Cleveland Cliffs Iron Co. The suit alleges the company's waste rock disposal methods harm wetlands and a stream south of Marquette. The disposal was permitted by state regulators in 2000.

Interestingly, these two isolated stories are the only reports I have found on either of these decisions.

Posted by Marcia Oddi on August 10, 2004 08:52 AM
Posted to Environmental Issues