‘Anglers’ environmental case not moot, says MSC majority

A split ruling by the Michigan Supreme Court to go forward with an environmental law case has produced some heated discussion among the justices about whether the case is moot.

It also provoked a charge by Justice Robert P. Young Jr. that some members of the court were keeping the case alive for an easy opportunity to overrule recent environmental law precedent decided by the former Republican majority on the court.

Some background on the case currently before the Court:

A few years back, Merit Energy bought a production facility located near Gaylord Michigan from Shell Western Exploration and Production.

The purchase came with an obligation to formulate a plan acceptable to the Michigan Department of Environmental Quality to treat a sizable (60-acre) plume of contaminated groundwater that had already affected two residential drinking wells.

The DEQ signed off on Merit’s plan to blow air through the contaminated water to evaporate the hydrocarbons and then discharge the treated water via a 1.3 mile-long pipeline into Kolke Creek. The creek flows into Lynn Lake. The creek is the headwater system for the AuSable River watershed.

The AuSable River is a celebrated trout stream, attracting anglers from around the world.

Merit built the pipeline, after obtaining an easement from the DEQ to traverse about a half-mile of state-owned land. Merit’s plan called for discharging 700 gallons of treat water per minute, which would cleanse the plume in 10 years.

The plan was challenged by a property owner along the creek, a property owner on Lynne Lake and by Anglers of the AuSable, whose members fish in Lynne Lake.

The plan was upheld after an administrative hearing but a circuit court suit brought the plan to a halt. The trial court ruled that Merit’s easement from the DEQ didn’t convey the riparian right to discharge the treated water, and the amount to be discharged was unreasonable.

The Court of Appeals reversed the trial court on the easement/riparian rights issue but agreed that the proposed discharge rate was unreasonable. See, Anglers of the AuSable, Inc., et al. v. Dep’t of Environmental Quality, et al.

The parties headed to the Michigan Supreme Court, which granted leave. Subsequently, Merit quitclaimed its easement back to the DEQ and said it was abandoning any plans to discharge water into Kolke Creek. Accompanying these actions was Merit’s motion to dismiss the MSC appeal as moot.

No chance, said a divided Court.

Chief Justice Marilyn Kelly, and Justices Michael F. Cavanagh, Elizabeth A. Weaver and Diane M. Hathaway said the case was still a live wire. Cavanagh, in a concurring statement joined by Kelly and Hathaway, explained:

This Court originally granted leave to appeal to consider several issues, including whether the state could convey an easement to defendant, Merit Energy Company, that granted the right to discharge water on state-owned land; the proper test for determining the extent to which defendant may discharge water; and whether plaintiffs may pursue a cause of action against the Department of Environmental Quality (DEQ) that challenges the propriety of the DEQ approving and issuing a permit to defendants. …

Defendant now argues that the case is moot because, since the Court granted leave to appeal, defendant has quitclaimed its interest in the easement and claimed that it has abandoned any plans to discharge water into Kolke Creek. I am not convinced. …

Defendant’s conduct amounts to nothing more than a ‘voluntary cessation of allegedly illegal conduct’ that does not render the case moot unless the defendant shows that the alleged wrong will not arise again. I cannot see that defendant has met this heavy burden. The legality of the practices addressed by the Court of Appeals remain important public questions. Moreover, because defendant prevailed before the Court of Appeals on several of these important public issues, and did not move to moot the issues until after this Court had granted leave to appeal, this Court’s interest in preventing defendant from insulating a favorable decision from review is strongly implicated.

Young , in his dissent, said the case is clearly moot but was being kept alive for the opportunity to overrule Michigan Citizens v. Nestlé Waters, a case authored by Young that denied standing to some plaintiffs in an environmental law case, and Preserve the Dunes v. DEQ, authored by then-chief justice Maura D. Corrigan, joined by Young, which ruled that the Michigan Environmental Protection Act was an improper vehicle with which to challenge a sand dune mining permit the DEQ had issued.

Young counseled Merit to abandon its appeal:

As it stands now, Merit has no stake in the future outcome of this case, and thus has no remaining interest to pursue the appeal vigorously.

Why would Merit pay the expense of contesting in the Supreme Court a matter in which it has already conceded by its actions? By rights, having abandoned the pipeline, Merit should also abandon this case even if a majority insists on it going forward.

Accordingly, I am greatly concerned by the resulting total collapse of the adversarial process in this case — having no party vigorously to argue in defense of the cases with which the plaintiffs and Chief Justice KELLY and Justices CAVANAGH, WEAVER, and HATHAWAY intend to overturn.

For those who wish to overturn cases decided by “the Republican-dominated Court,” it is useful to have no one with a serious interest in defending them.

Young also took some additional swipes at Kelly, Weaver and Hathaway in general, and Cavanagh in particular:

[T]he majority’s decision to permit the appeal to proceed despite the absence of a live controversy demonstrates that it has other fish to fry; irrespective whether the case before it presents a legitimate vehicle for it to accomplish its goal, it will entertain plaintiffs’ argument in favor of overturning yet another precedent with which it disagrees.

The fact that the members of the majority have for 10 years been stout supporters of stare decisis illustrates how “situational” was their prior claimed fidelity to precedent.

The concurring justice claims that it is “remarkably ironic” that I raise the majority’s selective interest in respecting precedent. However, my position on stare decisis has not changed, and the concurring justice attempts to shift focus to me in order to avoid confronting his own inconsistency.

The public should understand when Justices’ positions on important matters shift. And that is the focus of this dissent: when the concurring justice was in the minority, he liked stare decisis a lot; now that he is in the majority, it is not an issue. That is the “irony” the public should understand.

Having no substantive response to my noting the reversal of his reverence for precedent, the concurring justice has entered into the explicitly partisan realm, referencing an article by a Wayne State University law professor [Robert A. Sedler].

Not everything written by a law professor is unbiased, nor is this particular law professor. In fact, this professor’s ubiquitous appearances on the Democratic Party web site attacking me and urging my political defeat demonstrates that he has a dog in the November hunt.

So does the concurring justice.

Of interest: the Democrats last week rolled out a video that, among other things, hammered Young for his decision in Michigan Citizens v Nestlé Waters. See, The Michigan Lawyer, “Dems target Young’s environmental record in MSC campaign.”

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1 thought on “‘Anglers’ environmental case not moot, says MSC majority

  1. Pingback: Taylor speaks about ‘Anglers’ case « The Michigan Lawyer

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