e-Journal Summary

e-Journal Number : 53430
Opinion Date : 12/11/2012
e-Journal Date : 12/13/2012
Court : Michigan Court of Appeals
Case Name : Department of Envtl. Quality v. Township of Worth
Practice Area(s) : Environmental Law, Municipal
Judge(s) : Sawyer, Owens, and O’Connell
Full Text Opinion
Issues:

Interpretation of Michigan's Natural Resources and Environmental Protection Act (NREPA)( MCL 324.101 et seq.); Michigan Dep't of Transp. v. Tompkins; Traverse City Sch. Dist. v. Attorney Gen.; Whether the remedial action ordered by the trial court violated the Headlee Amendment (Const. 1963, art. 9, § 29); Const. 1963, art. 9, § 25; Durant v. State Bd. of Educ.; Livingston Cnty. v. Department of Mgmt. & Budget; Whether MCL 324.3115(1) authorized the trial court's order imposing a schedule for remedial action, a fine, and an award of attorney fees; Farrington v. Total Petroleum, Inc.; House Speaker v. State Admin. Bd.

Summary

On remand from the Supreme Court, the court addressed defendant's remaining arguments on appeal - (1) whether the remedial action ordered by the trial court violated the Headlee Amendment, and (2) whether MCL 324.3115(1) authorizes the trial court's order imposing a schedule for remedial action, a fine, and an award of attorney fees. The court held that requiring defendant's compliance with MCL 324.3109(2) did not violate the Headlee Amendment because, although it may financially burden the defendant, it does not shift the financial burden from the state to a unit of local government. Also, the court affirmed the trial court's order establishing a timeframe for defendant's compliance and imposing a fine and awarding attorney fees because such an order is within the trial court's jurisdiction under MCL 324.3115(1). The case, which turned on the interpretation of Michigan's NREPA, was originally heard by the court on appeal of the trial court's decision granting summary disposition to plaintiff-DEQ and requiring defendant-Township to take necessary actions to remedy the failing private septic systems within its borders. The trial court's order also imposed a $60,000 fine and awarded attorney fees. The court reversed the trial court's order, holding that MCL 324.3109(2) did not impose a responsibility on defendant for failing septic systems owned by individuals. On appeal, the court framed the issue as whether MCL 324.3109(2) imposes a responsibility on defendant for the failure of private septic systems within its borders, and its majority concluded it did not. Having concluded that defendant was not responsible for the failing septic systems, the court did not previously address the remaining issues raised by defendant on appeal. In 1978, Michigan voters ratified an amendment to the state constitution prohibiting the state from "requiring any new or expanded activities by local governments without full state financing." The Headlee Amendment will apply whenever legislation enacted after 12/22/78 (the date the Headlee Amendment went into effect) requires a unit of local government to increase its level of activity or service. Further, Headlee will apply only when a statutory requirement lessens the state's burden by shifting to units of local government the responsibility of providing services once provided or funded by the state. Here, the act in question, NREPA, became effective 3/30/95. Further, pursuant to the Supreme Court's holding in this case, "under NREPA, a municipality can be held responsible for, and required to prevent, the discharge when the raw sewage originates within its borders." Thus, it appeared as if this case met with the first requirement when applying Headlee. However, where the present case failed to implicate Headlee was on the second requirement because, despite the financial burden imposed upon defendant by this statute, defendant's increase in services will not lessen the state's financial burden. Thus, the court held that the trial court may enforce defendant's compliance with MCL 324.3109(2) in accordance with the remedies listed in MCL 324.3115(1) without violating the Headlee Amendment.

Full Text Opinion