Application to construct a pipeline; The Michigan Environmental Protection Act (MEPA); Citizen suits; MCL 324.1703(1); Administrative actions; MCL 324.1705(2); West MI Envtl Action Council v Natural Res Comm’n; Review of an agency’s MEPA decision; The Public Service Commission’s (PSC) authority to regulate pipelines; Act 16; Scope of the PSC’s MEPA analysis; “Conduct”; Harm assessment; MEPA alternatives analysis; The public trust doctrine; Glass v Goeckel

The court held that courts must apply de novo review to an agency’s application of MEPA, whether a case begins in court or in administrative proceedings. It also held “that MEPA requires (1) consideration of the environmental impact factually and proximately caused by the conduct at issue, (2) a fair and reasoned comparison of the environmental impacts of any alternatives to the conduct considered, and (3) consideration of the conduct’s potential effects on public trust resources.” Applying these holdings, it concluded the Court of Appeals and PSC erred in these cases arising from appellee-Enbridge Energy’s application to construct a tunnel under the Straits of Mackinac (the Replacement Project). The PSC issued an order granting approval for the Project under Act 16. The Court of Appeals affirmed. The court concluded that the Court of Appeals erred in “applying a deferential standard of review to the PSC’s MEPA determination rather than analyzing de novo whether the proposed conduct satisfies MCL 324.1705(2).” It also concluded that the PSC erred in “(1) failing to consider whether the tunnel project will factually and proximately cause the extension of Line 5’s operational life, potentially resulting in additional environmental harm; (2) comparing alternatives in an inconsistent manner; and (3) failing to consider the project’s impact on public trust resources.” The court noted that, to accomplish the goals of the MEPA’s alternatives analysis, “the environmental impact of the conduct at issue must be compared with that of the alternatives being considered” in order to make a “‘reasoned choice of alternatives.’” In these cases, “inconsistencies in the PSC’s comparisons did not allow for such a ‘reasoned choice.’ Instead of comparing alternatives that would fully replace Line 5 with the pipeline as a whole, it compared them to the Replacement Project alone—without acknowledging and accounting for the difference.” The court also found that “considering the ‘public trust’ under MEPA requires consideration of the public’s right to fish, hunt, travel through, and otherwise utilize the Great Lakes.” Thus, the MEPA factfinder must “assess and mitigate harm to public trust resources.” The court reversed the Court of Appeals’ judgment, vacated the PSC’s order, and remanded to the PSC.

Concurring in part and dissenting in part, Justice Zahra concluded that the “Court of Appeals did not err in affording deference to the PSC[.]” He also disagreed with the court’s expanded scope of analysis under the MEPA, and found that it erroneously assumed that “tenuous, remote, or peripheral environmental effects should be considered relevant to determining feasible alternatives to the Replacement Project.” But he concurred in the majority opinion as “to the holding that the matter should be remanded to the PSC for express findings on the” public trust issue.