Urbanite friends, imagine for a moment that you're passionate about fishing. Some of your happiest times have been spent out on the river with your best buddies, peacefully awaiting a tug on the line and the subsequent chase. Year after year, you've appreciated this ritual, grateful for the outdoors and its offerings. Your kids look forward to Saturday afternoons out on the dock with you, too. And then one day you find out that the state you live in has issued a permit to an energy company to dump millions of gallons of oil field wastewater into the river, your river. What would you do?
You could try petitioning your state or, if that failed, going to court and suing the state for issuing a permit that jeopardizes your right to a clean, unpolluted water source. In a move that will probably have significant implications for environmental and water law in Michigan and possibly other states, a group of anglers and other environmental groups brought just this kind of case. They challenged the state's decision to allow Merit Energy to use a pipeline to cut across state land in order to dump contaminated water into the previously uncontaminated Au Sable River. The anglers brought suit under the Michigan Environmental Protection Act (MEPA) of 1970 which authorizes “any person” to file suit “for the protection of the air, water, and other natural resources...from pollution, impairment, or destruction.”
Citizens and environmental groups historically have brought cases under environmental laws like MEPA to challenge polluters as well as state agencies that allow contamination of our waterways. In this case, however, the state challenged the anglers' right to sue under MEPA based on several recent cases that called into question whether and under what conditions citizens can go to court and whether they can hold the state responsible for allowing the pollution under the law. Also at issue was the definition of waterfront property rights and whether the state was within its rights to allow Merit Energy access to the Au Sable watershed. The case raised a number of concerns as it made its way through the courts, particularly after a state court of appeals ruled that the anglers and environmental groups couldn't sue the state under MEPA.
On December 29, 2010, the Supreme Court of the state of Michigan issued a 4-3 ruling. The court ruled in favor of the anglers, arguing that, as the law suggests, “any person” in Michigan has the right to sue in order to protect public environmental assets. The majority opinion also held that Merit Energy's request to pollute the Au Sable was “manifestly unreasonable.”
As the new year begins, ideological shifts on the Michigan Supreme Court seem to indicate that a rollback of civil and environmental rights may be on the way. For now, though, it is heartening to see the courts upholding the law and allowing access to justice and the enforcement of our critical clean water laws. Let's hope this is a new norm.
(Photo by Todd Baker.)