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Michigan Supreme Court Allows Suits Against State Agencies That Harm Environment

January 3, 2011

In his last few days as a Michigan Supreme Court Justice, Alton Davis, whom I had hoped would win a more permanent seat in the MI Supreme Court.  Davis lost, to a more Republican-back candidate, even though we aren’t supposed to acknowledge that MI Supreme Court Justices are party-backed.  And now, in one of his final rulings, Davis has allowed that if the State agencies cause harm to citizens, a suit may be filed:

A divided Michigan Supreme Court issued its opinion in a long-running case tied to a plan to pump contaminated water into a tributary of the Au Sable River in Otsego County.

Among other items, the ruling means citizens regain the right to sue state agencies whose decisions harm the environment, local environmental attorney Jim Olson said.

“We are absolutely thrilled with the (return) of the rights of citizens to sue the state when it abuses its authority by issuing permits that harm the environment,” he said.

That right existed since the advent of the Michigan Environmental Protection Act in 1970. The law took a huge blow in 2004 when a Michigan Supreme Court ruling protected the then-Michigan Department of Environmental Quality from a lawsuit filed by a citizens group.

Supreme Court Justice Alton Thomas Davis, a Grayling judge appointed by Gov. Jennifer Granholm in August to fill a seat created by former Justice Elizabeth Weaver’s resignation, wrote the lead opinion in the recent ruling.

“Under (the 2004 case), the DEQ cannot be required to account for its actions,” his opinion reads. “By overruling that decision, this court can restore the accountability that was intended under the Michigan Environmental Protection Act.”

Olson represents Anglers of the Au Sable Inc., a conservation group that in 2006 filed suit in Otsego County in an effort to prevent Merit Energy Company from treating a plume of contaminated groundwater and pumping it into Kolke Creek, which flows into the Au Sable.

An Otsego judge said the pumping could be harmful and issued an injunction to prevent it. The Michigan Court of Appeals upheld the injunction, but dismissed the DEQ — now the Michigan Department of Natural Resources & Environment — as a defendant. The Supreme Court ultimately agreed pumping shouldn’t be allowed, but said the DEQ shouldn’t have been dismissed from the suit.

The court in its recent ruling said the 2004 case that protected the DEQ was decided incorrectly, and that the DEQ should have been held accountable in that case, as well.

In essence, this isn’t a new decision, per se.  Constituents can and do sue for issues like bias.  Check out the ACLU records, but it’s new that a Michigan court would hold a company accountable.  In our rather Republican-leaning state, the law of the land has been purchased by companies who fund Supreme Court Justices’ campaigns.  And the decisions, in favor of said companies, have been written within a year or two after the campaign contributions.  Just check the history of the decisions, and for all the Republican-backed campaigns, you can find hundreds of thousands of dollars donated from hospital groups, physician groups, insurance groups, and Chamber of Commerce groups that support limits on consumer’s rights under the auspices of protecting big business.  (A cynic might point out that big business such as it has been has gone bankrupt in MI and decimated the economy, but the Republicans seem immune to this line of reasoning…)

In reality, suing a governmental agency may seem like a huge shift, but small groups have been pushing back against the Republican-backed big business support for years now.  Actually, the Republican agenda in Michigan has been an embarrassment for those of us a broader sense of the world beyond manufacturing.  We understand that taking Michigan’s water to pump to a desert is a bad idea.  Pollution of the lakes is a bad idea.  Pollution of the streams by big business is a bad idea, which Davis just happened to write about, and putting all our money into auto manufacturing giants that ship jobs overseas probably isn’t a way to grow local economies.  Okay, we in Michigan aren’t as stupid as the Republicans would have us believe, but still, it’s not a stretch to see how we might move backwards with this should Davis’s decision be overturned.

Those of us who really do value Michigan’s clean water wait to see how much damage the Republican-backed newest nominee can do.  It’s kind of scary to think about.

Merit abandoned the Kolke Creek plans after the Supreme Court decided to hear the case, and no contaminated water was ever pumped into Kolke. But the top court’s decision still sends a strong message that the state should be held accountable for decisions tied to the environment, those connected to the case said.

“The Au Sable is really the crown jewel of Michigan trout streams, and we just can’t allow for jeopardy there,” said Tom Baird, vice president of the Anglers group and co-counsel on the case.

The ruling also is significant because it suggests a trend of stronger protection for Michigan water, Olson said. The Supreme Court ruling wouldn’t accept a “reasonable use balancing test” that came out of a years-long court battle over food company Nestle’s pumping of water in Mecosta County.

That test essentially allows developers or landowners to claim that certain benefits can outweigh the potential harm of an environmental act, and Olson said the court’s recent ruling stops a trend of relaxing water protection laws.

“The court stopped the direction of the Nestle case and pointed Michigan back toward protection of its lakes and streams,” he said.

Justices Maura Corrigan and Stephen J. Markman signed on to a lengthy and strongly worded dissent written by Justice Robert P. Young Jr., who contends the decision to overturn the 2004 ruling will “wreak havoc on this state’s legal system.”

Young opposed the ruling in part because he said the issue is “moot.” Merit already abandoned its plans, along with an easement that granted it access to Kolke Creek. He said the decision represents an “unseemly haste to render a decision in this case before the end of calendar year 2010.”

But the issue wasn’t moot, Olson contends. Had the court dropped the issue just because Merit did, the door would still be left open for it or another company to get permits in the future.

The court could re-examine the matter as soon as next year, when Republican-backed Mary Beth Kelly replaces Davis, whose term is up this week. Davis said he hopes the ruling isn’t reversed.

“I think it’s important to the future of Michigan and the people of the state of Michigan,” Davis told the Record-Eagle on Thursday. “Natural resources are one of the great treasures of this state. I hope the opinion stands.”

The decision with Nestle in Mecosta County is a prime example of the Michigan Supreme Court’s focus on the larger cities, the Detroit-area, at the expense of the smaller, poorer communities.  For years, Justices Young, Markman, and Corrigan have repeatedly written opinions denying justice to the financially-impaired, and giving breaks to the big corporate giants who contributed to their campaigns (check their decision histories in relation to the donations to their campaigns by insurance companies and the medical and corporate groups and you will see a direct link between campaign contributions and decisions written favor of their campaign donors).  It’s not a new trend for Michigan Supreme Court Justices to write improper rulings in favor of their campaign donors.  (Really, Youngs, it’s moot, and therefore shouldn’t have been decided?  Not much of a legal argument or precedent to base that on there…)

Mecosta County, in which Nestle dumped wastes, is one of THE POOREST counties in the entire state of Michigan.  In fact, it’s listed as one of the poorest counties in the entire U.S.  So, perhaps it doesn’t matter to the Michigan Supreme Court if the environmental damage occurs in a county in which the residents are too poor to contribute to their campaigns?  Too poor to be able to mount much of a defense against water pollution in their areas, because they are desperate for jobs?  It sure looks like the Michigan Supreme Court only supports the wealthy or campaign donors from Mecosta County’s vantage point.

What is new is that the Michigan Supreme Court did decide that some of Michigan’s corrupted agencies might be held accountable too.  Hello, Kwame Kilpatrick anyone?  What about Mike Cox interfering in police investigations for Kwame-land?  Anyone hear about MI Supreme Court Justice Taylor who was using tax-payer funded cars for his personal vacations and defending it as legal?  Yeah, it happened, and we in Michigan are still cringing.

The only sad part of this story is that another Republican-backed justice is replacing Davis, and decisions to hold the State agencies accountable will most likely be overturned because they could  “wreak [some as-of-yet-unnamed] havoc on the state’s legal system.”  Okay, Youngs, yes, let’s not look at what is right, but what is easiest?  Perhaps that which is least disruptive to whose agenda?  God forbid we should, through some unknown source, in some un-uttered way, “wreak havoc,” by holding state agencies accountable for damages.  Go, Youngs, Markman, and Corrigan, you and your rulings in favor of your campaign donors are what make Michigan great.

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