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)(now the Department of Natural Resources & Environment) could be sustained as a defendant in a case filed under the Michigan Environmental Protection Act (MEPA)(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
The court held that defendant-Merit's discharge plan was not an allowable use of water because it was manifestly unreasonable and that the defendant-DEQ could be sustained as a defendant in a MEPA action when the DEQ has issued a permit for activity that it is alleged will cause environmental harm. Thus, the court reversed the Court of Appeals' judgment in part and remanded the case for the reinstatement of the trial court's decision holding the DEQ accountable for violating the MEPA. The court also concluded that Preserve the Dunes was decided incorrectly and overruled it. The case arose from Merit's proposed plan to discharge treated, but still partially contaminated, water from the Manistee River watershed into the AuSable River watershed in an effort to clean a plume of contaminated water. The exact size of the plume, which was continuing to expand, was unknown. The plume consists of benzene, toluene, ethylbenzene, xylenes, and chlorides contained in brine, inter alia. Merit proposed a plan for air stripping the hydrocarbons from the contaminated water and submitted a plan to the DEQ to remediate 1.15 million gallons a day through a pipeline to be discharged into a creek that forms the headwater system for the AuSable River watershed. The DEQ approved the corrective plan and issued a general permit and certificate allowing for discharge of the treated water into the wetland flowing into the creek. The DEQ also granted Merit an easement through state-owned land to allow it to build a pipeline from the air stripper to the discharge point. The trial court granted an injunction preventing Merit from discharging the air-stripped water into the creek, made detailed findings, and concluded that the proposed discharge plan would severely harm the AuSable River water system because of the increased water flow and the increased level of substances not previously found in the creek. The trial court held that using the reasonable balancing test, Merit's proposed amount of discharge constituted an unreasonable use and ruled that the proposed discharge and the DEQ's authorization of discharge violated the MEPA. The court noted that the air-stripped water being pumped from the contaminated plume in one watershed would then be pumped as surface water into a separate, previously uncontaminated watershed. The court opined that it would be "unconscionable and destructive" for it to determine that it was reasonable to spread dangerous contamination throughout the state based on the Merit proposal as authorized by the DEQ. Thus, the court affirmed the lower courts' rulings preventing Merit's proposed discharge from the contaminated site into the creek and then into the AuSable River Watershed. Affirmed in part, reversed in part, and remanded.
In their concurrence, Justices Kelly and Cavanagh agreed with the lead opinion as to Parts I-III(B) and IV, but wrote separately to articulate their approach to stare decisis and would also overrule Preserve the Dunes. They concluded Preserve the Dunes was (1) unworkable because it usurped the Legistlature's grant of a cause of action regarding environmental harm, (2) caused serious detriment prejudicial to public interests, and (3) represented an abrupt and largely unexplained departure from precedent. Thus, there was a compelling justification for overruling it.
The dissenting justices vigorously dissented from the "extraordinarily lawless and profoundly dangerous" lead opinion and from the results reached by the majority. They further opined "this case represents one of the most shocking examples of the assertion of power that is not grounded in the constitution or any statute. This case is simply an empty vehicle to reach desired policy results." The justices concluded the case was moot because Merit voluntarily abandoned the easement that granted it physical access to the creek, and the trial court vacated the underlying DEQ permit that would have allowed it to make the proposed discharge. Further, the justices stated that the lead and concurring opinions' claim that Preserve the Dunes was wrongly decided was inconsistent with the plain language of MEPA and "will wreak havoc" on the state's legal system.
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012