Traverse City Record-Eagle

Forums

November 2, 2010

Forum: Dems' ad on justice's ruling is factual

By Jim Olson ----

A FactCheck.org analysis (published in the Oct. 30 Record-Eagle and in Newsweek magazine) did not get the whole story from checking the facts in Justice Robert Young's ruling in Michigan Citizens v Nestlé. The effect of Justice Young's ruling really did result in a large exemption for corporations or others to harm the environment free of citizens or harmed landowners being able to do anything about the pollution or impairment of air, water, and natural resources.

Having argued the case for Michigan Citizens for Water Conservation in the lower courts and in the Michigan Supreme Court on behalf of nearby riparian landowners (substantially harmed by Nestlé's pumping) I can explain what happened.

The trial court and court of appeals both found substantial harm to a system of springs, wetlands, lakes, and stream that replenished three more lakes a mile downstream. Justice Young wrote an opinion that upheld the harm to downstream riparians and plaintiffs on a lake, but reversed standing to sue to protect the wetlands and a lake, a short distance upstream, where the high-capacity well field was located.

These wetlands, creeks, and lake also were harmed or impaired in violation of the Michigan Environmental Protection Act. In his opinion, Young held that the Act could not be used to prevent the harm to wetlands and lake on Nestlé's well-field property because harmed plaintiffs had no standing to protect the harms, caused by the same pumping a short distance upstream, because they did not use or have an interest in the property or lake or stream.

Assuming that is correct (which factually and legally it was not, the groundwater when pumped impaired all of these water bodies and resources, as they were a single system of water, in which plaintiffs' riparian landowners had a direct interest), the effect of Young's decision was to exempt corporations or anyone from causing harm to any environmental feature on their own property, even if connected to wetlands, streams, lakes downstream.

The result is an absurdity, in that the Environmental Protection Act focuses on harm or impairment to the air, water, natural resources, and not the person. And, clearly, the harmed plaintiff riparians had a direct interest sufficient for legal standing. It's even more absurd, because it would mean that any corporation could simply buy enough land to contain damage to its own property, and piecemeal destroy significant natural features and the environment, without having to be held accountable.

So the Democratic ad that was the subject of the FactCheck analysis comes pretty close the truth, given the effect of Justice Young's ruling and near exemption for corporations to destroy the environment on their own property when the Legislature makes such destruction or harm illegal.

About the author: Jim Olson is a Traverse City-based environmental attorney.

About the forum: The forum is a periodic column of opinion written by Record-Eagle readers in their areas of interest or expertise. Submissions of 500 words or less may be made by e-mailing letters@record-eagle.com. Please include biographical information and a photo.

Text Only