Whether defendant-Merit Energy's plan to discharge contaminated water from an environmental cleanup site in the Manistee River watershed into a previously unpolluted site in the AuSable watershed was an "allowable" use of water; Whether the Michigan Department of Environmental Quality (DEQ) could be sustained as a defendant in a case filed under the Michigan Environmental Protection Act (MCL 324.1701 et seq.) when the DEQ is alleged to have authorized activity that will harm the environment; Preserve the Dunes, Inc. v. Department of Envtl. Quality; The "reasonable use balancing test"; Michigan Citizens for Water Conservation v. Nestlé Waters N. Am., Inc.; Review; Hendee v. Putnam Twp.; Overruling Preserve the Dunes; Ray v. Mason County Drain Comm'r; Nestlé and standing; Lee v. Macomb County Bd. of Comm'rs; Lansing Sch. Educ. Ass'n v. Lansing Bd. of Educ.; Reasonableness of the discharge from the cleanup site into the AuSable River; Applicability of Dumont v. Kellogg; Dismissal on the basis of mootness; United States v. Munsingwear, Inc.; Amway v. Grand Rapids Ry. Co.; Federated Publ'ns, Inc. v. City of Lansing; Gildemeister v. Lindsay; United States v. WT Grant; United States Fid. Ins. & Guar. Co. v. Michigan Catastrophic Claims Ass'n (On Rehearing) (USF&G); MCR 7.313(E) (governing motions for rehearing); MCR 2.119(F); City of Erie v. Pap's AM

In an order, the court granted the motions for rehearing, vacated its 12/29/10 opinion (see e-Journal # 47778 in the 1/4/11 edition), and dismissed the appeal on the basis of mootness for the reasons set forth in the dissent in the prior opinion. The court also vacated the Court of Appeals opinion (see e-Journal # 42306 in the 4/2/09 edition). The court concluded that the case was moot because it presented "‘nothing but abstract questions of law, which do not rest upon existing facts or rights.'" Several facts led the court to determine that "this is a case of obvious mootness." Defendant-Merit had quit-claimed its easement interest back to the riparian owner and no longer had the physical means of discharging water into Kolke Creek or the Au Sable River. Defendant was now disposing of the water by alternative means, and no longer had a permit that allowed discharge into Kolke Creek or the Au Sable River. Further, the defendant-DEQ attested that "there no longer exists the possibility of surface water discharge to Kolke Creek or the Au Sable River . . . ."

Chief Justice Young fully joined in the court's order but wrote "to answer a criticism the dissenting statement raises." Justice Cavanagh quoted Chief Justice Young's dissent in USF&G and rhetorically asked the question he raised in that case - "What changed?" - that would lead him to support rehearing in this case. The Chief Justice stated that the answer was simple - "the majority opinion in USF&G prevailed over my dissenting opinion, and I see no reason to remain bound by a position that failed to receive majority support two years ago. Today's order merely applies the very same principles that" former Justice Weaver and Justices Hathaway, M. Kelly, and Cavanagh "applied in deciding to grant rehearing in USF&G."

Justice Zahra concurred in the order but wrote separately "to address the propriety of granting a motion for rehearing when" there was a change in the court's makeup between the time the court's initial opinion was released and the date the motion for rehearing is decided. He stated that MCR 7.313(E) is discretionary since it did not define a standard under which the court was to decide motions for rehearing. The justice concluded that nothing in the rule "supports the notion that the Court may only grant rehearing where new legal arguments are presented" and it was appropriate to consider whether the court's 12/29/10 opinion "was properly decided, rather than limit review to the question regarding whether new arguments are presented on rehearing." He concluded that the order granting rehearing and vacating the 12/29/10 opinion "does not undo precedent; it restores precedent." He opined that rehearing was properly granted not only because the underlying dispute was moot, "but also because Preserve the Dunes properly interprets Michigan law."

The dissenting justices concluded that reconsideration on mootness grounds was improper where the defendants made no new arguments in their current motions and the 6/18/10 order was properly decided. They responded to Chief Justice Young's concurrence, and concluded that Justice Zahra, in concurring with the order reversing on mootness grounds, considered "the merits of the legal arguments and correctness of the" 6/18/10 order, not the 12/29/10 opinion. Since the defendants did not file a motion for reconsideration of the court's 6/18/10 order, "the majority's reaching to grant rehearing of this Court's subsequent opinion is quite a stretch." The dissenting justices also concluded, inter alia, that the case was not moot. They opined that the majority's decision to vacate the court's 12/29/10 opinion "leaves unanswered several questions of significant public concern, including whether plaintiffs have a cause of action to challenge the DEQ's decision to issue a permit to discharge water into Kolke Creek and the proper method to determine the reasonableness of water use." They also concluded that "defendants' unilateral actions were the basis for Merit's motion to dismiss for mootness, just as in City of Erie." They would deny defendants' motions for rehearing.