BY ART BUKOWSKI
abukowski@record-eagle.com
---- — TRAVERSE CITY — A ruling by the state's highest court opens the door for lawsuits against state agencies that allow harm to the environment, a decision supported by a local justice whose brief tenure draws to a close this week.
A divided Michigan Supreme Court issued its opinion in a long-running case tied to a plan to pump contaminated water into a tributary of the Au Sable River in Otsego County.
Among other items, the ruling means citizens regain the right to sue state agencies whose decisions harm the environment, local environmental attorney Jim Olson said.
"We are absolutely thrilled with the (return) of the rights of citizens to sue the state when it abuses its authority by issuing permits that harm the environment," he said.
That right existed since the advent of the Michigan Environmental Protection Act in 1970. The law took a huge blow in 2004 when a Michigan Supreme Court ruling protected the then-Michigan Department of Environmental Quality from a lawsuit filed by a citizens group.
Supreme Court Justice Alton Thomas Davis, a Grayling judge appointed by Gov. Jennifer Granholm in August to fill a seat created by former Justice Elizabeth Weaver's resignation, wrote the lead opinion in the recent ruling.
"Under (the 2004 case), the DEQ cannot be required to account for its actions," his opinion reads. "By overruling that decision, this court can restore the accountability that was intended under the Michigan Environmental Protection Act."
Olson represents Anglers of the Au Sable Inc., a conservation group that in 2006 filed suit in Otsego County in an effort to prevent Merit Energy Company from treating a plume of contaminated groundwater and pumping it into Kolke Creek, which flows into the Au Sable.
An Otsego judge said the pumping could be harmful and issued an injunction to prevent it. The Michigan Court of Appeals upheld the injunction, but dismissed the DEQ — now the Michigan Department of Natural Resources & Environment — as a defendant. The Supreme Court ultimately agreed pumping shouldn't be allowed, but said the DEQ shouldn't have been dismissed from the suit.
The court in its recent ruling said the 2004 case that protected the DEQ was decided incorrectly, and that the DEQ should have been held accountable in that case, as well.
Merit abandoned the Kolke Creek plans after the Supreme Court decided to hear the case, and no contaminated water was ever pumped into Kolke. But the top court's decision still sends a strong message that the state should be held accountable for decisions tied to the environment, those connected to the case said.
"The Au Sable is really the crown jewel of Michigan trout streams, and we just can't allow for jeopardy there," said Tom Baird, vice president of the Anglers group and co-counsel on the case.
The ruling also is significant because it suggests a trend of stronger protection for Michigan water, Olson said. The Supreme Court ruling wouldn't accept a "reasonable use balancing test" that came out of a years-long court battle over food company Nestle's pumping of water in Mecosta County.
That test essentially allows developers or landowners to claim that certain benefits can outweigh the potential harm of an environmental act, and Olson said the court's recent ruling stops a trend of relaxing water protection laws.
"The court stopped the direction of the Nestle case and pointed Michigan back toward protection of its lakes and streams," he said.
Justices Maura Corrigan and Stephen J. Markman signed on to a lengthy and strongly worded dissent written by Justice Robert P. Young Jr., who contends the decision to overturn the 2004 ruling will "wreak havoc on this state's legal system."
Young opposed the ruling in part because he said the issue is "moot." Merit already abandoned its plans, along with an easement that granted it access to Kolke Creek. He said the decision represents an "unseemly haste to render a decision in this case before the end of calendar year 2010."
But the issue wasn't moot, Olson contends. Had the court dropped the issue just because Merit did, the door would still be left open for it or another company to get permits in the future.
The court could re-examine the matter as soon as next year, when Republican-backed Mary Beth Kelly replaces Davis, whose term is up this week. Davis said he hopes the ruling isn't reversed.
"I think it's important to the future of Michigan and the people of the state of Michigan," Davis told the Record-Eagle on Thursday. "Natural resources are one of the great treasures of this state. I hope the opinion stands."
