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Note: Special Reports are updated periodically here; but are
updated and reported on Updated: July 25, 2007 Click Here
for details on WIMS Information Service Products Michigan Supreme Court
Environmental Decisions (We will add to this page as new decisions are issued and will add older decisions as time permits.)
MI Supreme Court Narrows MEPA Application
- Jul 25, 2007: The Michigan Supreme Court issued a split
opinion (4-3) in the case of Michigan Citizens for
Water Conservation (MCWC) v. Nestle Waters North
America (Case No.130802) which would narrow
citizens' rights to sue for environmental damages --
the cornerstone of the 1970 of the Michigan
Environmental Protection Act (MEPA) [See WIMS
7/25/07]. The majority opinion says, "The sole
question presented in this case is whether plaintiffs
have standing to bring a claim under the Michigan
Environmental Protection Act (MEPA) as that claim
relates to certain streams, lakes, and wetlands in
Mecosta County. Justices deciding in the majority
included: Robert P. Young, Jr., Clifford W. Taylor,
Maura D. Corrigan and Stephen J. Markman.
The Michigan High Court recounts its majority opinion issued July 30, 2004, and says, in Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, we noted that “‘environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons “for whom the aesthetic and recreational values of the area will be lessened” by the challenged activity.’” The Supreme Court said, "Plaintiffs indisputably have standing to bring a MEPA claim against Nestlé to protect their riparian property rights to Thompson Lake and the Dead Stream. However, plaintiffs have failed to demonstrate that they use the Osprey Lake Impoundment (Osprey Lake) and Wetlands 112, 115, and 301, and that, as a result, their recreational, aesthetic, or other interests have been impaired. Accordingly, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we affirm the Court of Appeals in part, but we reverse the Court of Appeals holding that plaintiffs have standing to bring a MEPA claim regarding Osprey Lake and Wetlands 112, 115, and 301, and remand this case to the circuit court for further proceedings consistent with this opinion." Both plaintiffs and Nestlé appealed the Circuit Court ruling and the Court of Appeals affirmed in part, reversed in part, and remanded to the trial court. Appealing the MEPA claim, Nestlé argued that plaintiffs lacked standing to bring that claim with respect to Osprey Lake and Wetlands 112, 115, and 301. In the Appeals Court decision, Judges White and Murphy, forming the majority on the standing question, disagreed with Nestlé and held that plaintiffs had standing “with respect to all the natural resources at issue.” Judge Smolenski, the dissenter in the Appeals Court ruling, indicated he would have found that plaintiffs lacked standing with respect to Osprey Lake and Wetlands 112, 115, and 301 because plaintiffs did not use those areas, so they could not demonstrate that they had suffered or would suffer a "concrete or particularized injury" distinct from that of the public generally. Judge Smolenski also indicated he would have declared MEPA unconstitutional as it authorizes “any person” to bring a MEPA claim. He considered that provision an unlawful attempt by the Legislature to confer standing broader than the constitutional limits set forth in Lee v Macomb Co Bd of Comm’rs and Nat’l Wildlife. The Supreme Court said, "...turning to Osprey Lake and Wetlands 112, 115, and 301, the record below does not indicate that plaintiffs used or had access to these areas or that they enjoyed a recreational, aesthetic, or economic interest in them. Plaintiffs failed to establish that they have a substantial interest in these areas, detrimentally affected by Nestlé’s conduct, that is distinct from the interest of the general public. The absence of a concrete, particularized injury in fact is fatal to plaintiffs’ standing to bring a MEPA claim with respect to Osprey Lake and Wetlands 112, 115, and 301." Further explaining, the Supreme Court said, "To be clear, we are refining, not dismissing, plaintiffs’ MEPA claim. Plaintiffs enjoy the full protection that MEPA affords to vindicate their riparian property interests. Thus, they have standing insofar as Nestlé’s pumping activities inflicted an injury in fact with respect to the Dead Stream and Thompson Lake. However, plaintiffs cannot similarly establish standing with respect to Osprey Lake and Wetlands 112, 115 and 301. In reaching this conclusion, we reject the Court of Appeals 'interconnectedness' theory of standing as inconsistent with Lee and Nat’l Wildlife... We reject plaintiffs’ bootstrapping approach to standing under which, as long as they have standing to redress their injury in fact, they have standing to redress all injuries conceivably related to their injury in fact. No matter how pervasive the environmental damage in an ecosystem, plaintiffs must still successfully and succinctly establish their injury in fact." The majority opinon inlcudes specific responses to the dissents by Justices Marilyn Kelly and Elizabeth A.Weaver. Justice Michael F. Cavanagh also issued a dissent. In her dissent, Justice Weaver said, "I would hold that plaintiffs have standing under MCL 324.1701(1)2 to bring an action to enjoin water pumping and bottling production activities that plaintiffs allege will irreparably harm natural resources." She further stated that, "The majority’s holding in this case marks the culmination of a line of cases in which the same majority of four (Chief Justice Taylor and Justices Corrigan, Young, and Markman) has eroded Michigan’s traditional rules of standing... the majority disregards the intent of the Legislature, erodes the people’s constitutional mandate, and overrules 30 years of Michigan case law that held that the Legislature meant what it said when it allowed “any person” to bring an action in circuit court to protect natural resources from actual or likely harm." Justice Cavanagh dissented saying, "I concur fully with Justice Weaver’s dissenting opinion because I, too, believe that the majority’s systematic dismantling of our standing principles is seriously misguided. Moreover, I would find that plaintiffs properly have standing because the evidence they presented soundly demonstrates that the conduct of Nestlé Waters North America Inc. is perpetrating detrimental environmental effects on the ecosystem about which plaintiffs’ complaint is concerned." Justice Kelly dissents saying, "I would hold that plaintiffs have established standing under Lee and Cleveland Cliffs, I find it unnecessary to consider whether these decisions should be overruled... Properly applied, the standing doctrine is a shield used to protect the integrity of our tripartite system of government. In its decision today, the majority allows defendant Nestlé to use the doctrine as a sword to insulate its questionable activity from legal challenge. I dissent from this erroneous decision."
MCWC issued a release from Jim Olson,
Olson, Bzdok & Howard, P.C., the group's
attorney which stated in part, "The Court now
says it will require that any person bringing
a lawsuit to protect our air, water, and
natural resources, or the public trust in our
waters, must allege and prove harm to waters,
wetlands, or other environmental features on
the Defendant polluter's property; i.e.
standing has been used as a sword to cut-off or cripple the citizen suit to protect
Michigan's environment, and to give Nestle
and other businesses a license to destroy and
pollute on their own property unless a citizen
can show a specific interest in Defendant's
property, such as use, aesthetics,
recreation... It's time for all citizens to
take standing, our air, water and public
trust into their hands. The Constitution is
of and for the people. These issues belong to
the people. It is time for massive unified
action, without regard to our politics, to
demand respect for and protection of the
environment by the Supreme Court, since that's
what our Constitution and laws demand..."
House Democrats issued a release that, "blasted the State Supreme Court’s decision to strike down provisions in the Michigan Environmental Protection Act (MEPA)." They indicated that the ruling comes on the same day they introduced a water protection package that gives the public additional tools to protect Michigan’s most precious natural resource. State Representative Mary Valentine (D-Norton Shores) said, "The Supreme Court’s ruling is the exact opposite of what we are trying to do to protect our water here in Michigan. The Supreme Court has put the quality and future of our Great Lakes and other natural resources at risk."
Access the complete opinion
and dissents (click
here). Access the Supreme Court docket
number 254202 in the case (click
here).
Access the complete release from MCWC (click
here).
Access a posted release from Clean
Water Action Michigan (click
here).
Access a
release from House Democrats (click
here).
Access the WIMS-EcoBizPort Special
Report on Water Management In Michigan & the Great
Lakes for extensive background and links on the
Nestle case (click
here).
Beach Walking Right Defined:
Glass v. Goeckel - Jul 29: In the Michigan
Supreme Court, Glass v. Goeckel, Case No. 126409. In a
5-2 decision, the Michigan Supreme Court has overruled ,
a highly controversial Appeals Court decision, and said
that under the public trust doctrine individuals retain
the right to walk freely along the shoreline of the
Great Lakes up to the ordinary high water mark. In its
decision the Michigan High Court defines "high water
mark" using a Wisconsin definition, and clarifies the
distinction between "littoral property" pertaining to
property on the seas, oceans or Great Lakes; and
"riparian,” pertaining to property on rivers and
streams. The Justices also agreed that the Great Lakes
Submerged Lands Act (GLSLA), MCL 324.32501 et seq.,
does not create a right to walk the shores of our
Great Lakes. The majority said that right is exclusive
to the public trust doctrine. The majority included
Justices Maura D. Corrigan, Clifford W. Taylor, Michael
F. Cavanagh, Elizabeth A. Weaver, and Marilyn Kelly.
Supreme Court Overturns Novi Condemnation Case
- Jul 20: In the Michigan Supreme Court, City of
Novi v. Robert Adell Childrens Funded Trust, Case
No.122985. In this 5-2 decision, Justices Clifford
W. Taylor, Maura D. Corrigan, Robert P. Young, Jr.,
Stephen J. Markman all signed the majority opinion.
Justice Elizabeth A. Weaver concurred but disagreed
on a principle of mootness law. Justice Michael F.
Cavanagh wrote a dissenting opinion signed also by
Justice Marilyn Kelly. As described by the High
Court, in this land condemnation case where the city
of Novi is attempting to take private property to
construct a road, the first issue is whether the
requirement of a public use, under Const 1963, art
10, § 2, is met when the proposed road will be
available for use by the public but will be
primarily used by a private entity that has
contributed funds to the project. The Court
concluded that such a road does qualify as a public
use. The second issue is whether, under MCL 213.56,
a court can find the city has abused its
discretion in determining there is a public
necessity for the condemnation when the city has not
considered alternatives to the taking. The Court
concluded that a failure of the city to consider
alternatives was not an abuse of its discretion. The
Court said, "Because the Court of Appeals
incorrectly decided that the proposed road was not a
public use, we reverse that decision. We also find
no fraud, error of law, or abuse of discretion in
the city’s determination that there exists a public
necessity to take defendants’ property for the
proposed project. Accordingly, we remand this matter
to the trial court for entry of summary disposition
in favor of plaintiff."
In his dissent Cavanagh indicated, "I respectfully dissent from the majority opinion. This matter is moot and, consequently, we are without authority to decide it." Access the complete opinion (click here). [*MILand]
Michigan Supreme Court Upholds Pollution Exclusion
- Jul 19: In the Michigan Supreme Court, City of
Grosse Pointe Park v. Municipal Liability and Property
Pool, Case No. 125630. In this interesting case, the
High Court is equally divided on the appropriate legal
analysis, but is unanimous regarding the proper
result. As described by the Court, plaintiff city of
Grosse Pointe Park had a practice of discharging
sewage into a nearby creek when its sewer system
became overtaxed during, for example, heavy periods of
rain. As a result of these discharges, the residents
who lived near the creek filed a lawsuit against the
city. Defendant Michigan Municipal Liability and
Property Pool was the city’s insurer and provided a
defense in the lawsuit under a reservation of rights.
Although the pool covered other claims regarding
sewage backups into homes and businesses, the pool
refused to cover claims regarding the discharges into
the creek on the basis of the insurance policy’s
pollution exclusion clause.
In this insurance coverage
case, the Michigan High Court said it must decide
whether the insurance policy’s pollution exclusion
clause is ambiguous and whether extrinsic evidence may
be examined in this particular case to aid in the
construction of the policy. The Court ruled that the
pollution exclusion clause was not ambiguous;
therefore, consideration of extrinsic evidence as a
construction aid is not appropriate. Further, the
Court concluded that the city’s discharges fell within
the scope of the pollution exclusion provision and,
thus, coverage was properly denied on that basis.
The Court said it must also
determine whether the pool is "nonetheless estopped
from enforcing this clause because of its practice of
covering sewage backup claims or because of the manner
in which it provided a defense to the city." The Court
ruled "the pool is not estopped from enforcing the
pollution exclusion clause. The pool timely reserved
its rights under the policy, and the city was aware of
the reservation... Accordingly, the decision of the
Court of Appeals is reversed, and we remand this case
to the trial court for entry of an order of summary
disposition in favor of the pool." Access the complete
opinion and both analyses of the Justices (click
here). [*Water]
High Court Denies Dioxin Medical Monitoring -
Jul 13, 2005: In the case of Henry v. The Dow Chemical Co.
in the Michigan Supreme Court, Case No.125205. In a 5-2
decision, the Michigan High Court focuses directly on the
priority of environmental and public health protection
versus the State's economy. In this case, the Supreme
Court said that the potential impacts on the State's
economy are too important for it to rule in favor of
the citizen plaintiffs regarding their request for medical
monitoring costs related to dioxin exposures. Instead, it
suggests that the Legislature should assume the
responsibility of clarifying State law as they are "better
suited to undertake the complex task of balancing the
competing societal interests at stake." Justices voting in
the majority included Maura D. Corrigan, Clifford W.
Taylor, Elizabeth A. Weaver, Robert P. Young, Jr., Stephen
J. Markman. Justice Weaver issued a separate concurring
opinion. Michael F. Cavanagh and Marilyn Kelly issued the
dissenting opinion. In the majority opinion summary of the
case, the Michigan High Court said:
"The 173 plaintiffs in this matter have asked to represent a putative class of thousands in an action against defendant, The Dow Chemical Company. Their core allegation is that Dow’s plant in Midland, Michigan, negligently released dioxin, a synthetic chemical that is potentially hazardous to human health, into the Tittabawassee flood plain where the plaintiffs and the putative class members live and work. "This situation appears, at first blush, to have the makings of a standard tort cause of action. But closer inspection of plaintiffs’ motion for class certification reveals that one of plaintiffs’ claims is premised on a novel legal theory in Michigan tort law and thus raises an issue of first impression for this Court.
"In an
ordinary 'toxic tort' cause of action, a plaintiff alleges
he has developed a disease because of exposure to a toxic
substance negligently released by the defendant. In this
case, however, the plaintiffs do not allege that the
defendant’s negligence has actually caused the
manifestation of disease or physical injury. Instead, they
allege that defendant’s negligence has created the
risk [emphasis in original] of disease -- that they
may at some indefinite time in the future develop disease
or physical injury because of defendant’s allegedly
negligent release of dioxin.
"Accordingly, the plaintiffs have asked the circuit court
to certify a class that collectively seeks the creation of
a program, to be funded by defendant and supervised by the
court, that would monitor the class and their
representatives for possible future manifestations of
dioxin-related disease. The defendant moved for summary
disposition, arguing that plaintiffs’ medical monitoring
claim was not
cognizable under Michigan law. The circuit court denied
this motion, and the Court of Appeals denied defendant’s
interlocutory application for leave to appeal.
"We now reverse the
circuit court order denying the motion and remand for
entry of summary disposition in favor of defendant on
plaintiffs’ medical monitoring claim. Because plaintiffs
do not allege a present [emphasis in original]
injury, plaintiffs do not present a viable negligence
claim under Michigan’s common law. Although we recognize
that the common law is an instrument that may change as
times and circumstances require, we decline plaintiffs’
invitation to alter the common law of negligence liability
to encompass a cause of action for medical monitoring.
Recognition of a medical monitoring claim would involve
extensive fact-finding and the weighing of numerous and
conflicting policy concerns. We lack sufficient
information to assess intelligently and fully the
potential consequences of recognizing a medical monitoring
claim.
"Equally
important is that plaintiffs have asked this Court to
effect a change in Michigan law that, in our view, ought
to be made, if at all, by the Legislature. Indeed, the
Legislature has already established policy in this arena
by delegating the responsibility for dealing with health
risks stemming from industrial pollution to the Michigan
Department of Environmental Quality (MDEQ). As a
matter of prudence, we defer
in this case to the people’s representatives in the
Legislature, who are better suited to undertake the
complex task of balancing the competing societal interests
at stake.
"We
therefore remand this matter to the circuit court for
entry of summary disposition in defendant’s favor on
plaintiffs’ medical monitoring claim."
Clearly
the High Court was focused on the economic implications
and precedent of a decision in favor of the citizen
plaintiffs as it said, "...we have no assurance that a
decision in plaintiffs’ favor -- which would create a
hitherto unrecognized cause of action with a potentially
limitless class of plaintiffs -- will not wreak enormous
harm on Michigan’s citizens and its economy. . . We would
be unwise, to say the least, to alter the common law in
the manner requested by plaintiffs when it is unclear what
the consequences of such a decision may be and when we
have strong suspicions, shared by our nation’s highest
court, that they may well be disastrous... the judiciary’s
obligation to exercise caution and to defer to the
Legislature when called upon to make a new and potentially
societally dislocating change to the common law...
Accordingly, we remand this matter to the Saginaw Circuit
Court for entry of an order of summary disposition in
defendant’s favor with regard to plaintiffs’ medical
monitoring cause of action."
The majority opinion included several pages of comment on the dissenting opinion, e.g. "Although the dissenting opinion is passionately argued and, no doubt, well-intentioned, it is rooted in a number of fundamental misconceptions about the applicable law and about our majority opinion.... The dissent’s disdain for our 'concerns about financial impact' can be sustained only by disregarding the effect that these other preinjury actions might have on the state’s economy. To recognize a medical monitoring cause of action would essentially be to accord carte blanche to any moderately creative lawyer to identify an emission from any business enterprise anywhere, speculate about the adverse health consequences of such an emission, and thereby seek to impose on such business the obligation to pay the medical costs of a segment of the population that has suffered no actual medical harm..." The nearly 25-page dissenting opinion of Cavanagh and Marilyn Kelly said, "The proper issue in this case is whether defendant must pay for plaintiffs’ medical monitoring costs. However, rather than simply address this basic issue, the majority chooses to use this case as a vehicle to raise fears about the economy and hypothesize that providing medical monitoring to these plaintiffs would result in our state’s economic disaster. The majority erroneously presents this case as one in which it must choose between an equitable remedy for plaintiffs and the economic viability of defendant and of our state. Because the dichotomy the majority has constructed is a false one, I must dissent... Throughout its opinion, the majority invokes the fear of a ruined economy to support its decision...
"At its
core, this is not a complex case. Defendant contaminated
the environment with dioxin. Because of defendant’s
conduct, plaintiffs require medical monitoring to ensure
that the negative effects of defendant’s acts can be best
countered. Medical monitoring costs money. Plaintiffs,
defendant, or the taxpayers of the state of Michigan must
pay the costs. Because plaintiffs only require medical
monitoring as a result of defendant’s conduct, it seems
clear that it is reasonable that defendant pay the costs.
This is not meant to punish defendant; it merely seeks to
hold defendant to the reasonable standard that a polluter
pays for the costs of polluting. 'The mere fact that a
wrongdoer may suffer, however, will not deter equity from
granting relief to an injured party.' 27A Am Jur 2d,
Equity, § 102, p 588. The majority’s decision that
plaintiffs cannot seek equitable relief is indefensible
when one realizes that its position leaves plaintiffs who
cannot afford to pay for doctor-prescribed medical
monitoring with no recourse...
"...the majority holds that defendant’s egregious
long-term contamination of our environment and the
resulting negative health effects to plaintiffs are just
another accepted cost of doing business..."
Access the complete opinion (click here). Access all of the briefs filed in the Dow case (click here). Access the WIMS-EcoBizPort Special Report on Midland Area Dioxin Issues for further background information and links to additional resources (click here). [MIToxics] Note: On July 30, 2004, the Michigan Supreme Court issued three major opinions that will have significant implications for environmental law in Michigan. The opinions also reveal a deep division among Justices in the Michigan High Court on critical environmental issues. The following is a brief overview of the three cases with links to the full text opinions. National Wildlife Federation v. Cleveland Cliffs - Jul 30, 2004: [In the Michigan Supreme Court, Case No. 121890]. This case presents the question of whether plaintiffs, National Wildlife Federation, have standing to bring a suit on behalf of their members under the Michigan Environmental Protection Act (MEPA), MCL 324.1701 et seq. In a 51-page majority opinion, the Supreme Court said "We conclude that, under the particular circumstances of this case, plaintiffs have standing." The Supreme Court affirmed the decision of the Court of Appeals and remand the case to the trial court for further proceedings. Judges Stephen J. Markman, Maura D. Corrigan, Clifford W. Taylor and Robert P. Young, Jr. concurred in the 51-page majority opinion. In brief, as summarized by Justice Marilyn Kelly in a separate opinion, the majority opinion "stands for the proposition that an individual bringing suit under the Michigan environmental protection act (MEPA) must show a particularized injury to satisfy standing. . . the majority goes on at great length to assert that the standing provision in MEPA would violate the constitutional separation of powers clause absent a particularized injury." While all 7 justices agreeded that in this particular case the plaintiffs do have standing; there was sharp dissent regarding constitutional limits applied by the majority. Three judges issued separate opinions consurring with the majority results; but dissenting "from all the majority’s reasoning."
In a stinging 34-page
separate opinion from Judge Elizabeth A. Weaver and a
separate 21-page opinion from Judge Kelly, the justices
joind by Michael F. Cavanagh in their dissent, staunchly
disageed with the majority's reasoning relating to a
possible violation of "separation of powers."
Justice Weaver said, "I dissent from
the majority’s analysis of 'standing' and 'judicial power'
because this analysis utterly ignores the will of the people
of Michigan expressed in art 4, § 52 of our Constitution
[i.e. conservation and natural resources are of paramount
public concern]. . . The majority disregards the intent of
the Legislature, erodes the people’s constitutional mandate,
and overrules 30 years of Michigan case law that held the
Legislature meant what it said when it allowed 'any person'
to bring an action in circuit court to protect natural
resources from actual or likely harm." Justice Kelly
said, "The Court's determination on standing renders the
majority's discourse on the separation of powers doctrine
unnecessary. This discourse is simply dicta."
Extensive information is available on the Michigan
Supreme Court website regarding this important Michigan
environmental law case. The plaintiffs challenged a permit
issued to Cleveland Cliffs by MDEQ, claiming that the
defendants’ intended activities would violate the Michigan
Environmental Protection Act (MEPA). The statute purports to
give “any person” standing to bring suit. The critical
questions in this case was: "Does the statute give standing
to the plaintiffs, or must they also show that they have a
personal stake in the lawsuit’s outcome?" Amicus briefs were
filed by: Camp Quality Michigan; Joseph L. Sax's (MEPA
author); Tip of the Mitt Watershed Council; and William G.
Milliken, League of Women's Voters.
Access the complete opinion (click
here). Access the plaintiff and defendant briefs
and the various amicus briefs (click
here).
Preserve The Dunes v MDEQ - Jul 30, 2004: [In the Michigan Supreme Court, Case Nos. 122611 and 122612]. A somewhat strange divided opinion that reveals the justices bantering at each other back and forth in their majority and dissenting opinions regarding the Michigan Environmental Protection Act [MEPA] and Sand Dune Mining Act (SDMA). Judges Stephen J. Markman, Maura D. Corrigan, Clifford W. Taylor and Robert P. Young, Jr. concurred in the 21-page, 4-3, majority opinion that the "only issue properly before us is whether MEPA authorizes a collateral challenge to the DEQ’s decision to issue a sand dune mining permit under the sand dune mining act (SDMA), MCL 324.63701 et seq.. . ." The majority ruled, "Because MEPA does not authorize such a collateral attack, we reverse the decision of the Court of Appeals and remand to that Court for expedited review of the remaining issues of plaintiff Preserve the Dunes (PTD)." In their ruling, the majority comment on the dissenting opinion and say, "The dissent’s conclusion that the permitting process is subject to collateral attack is not defensible on the basis of MEPA’s language, structure, or purpose. Countless entities apply for and receive permits for conduct that affects Michigan’s natural resources. Under the dissent’s regime, the permitting decision can never be final. Were we to adopt the dissent’s extreme understanding of MEPA, every permit that has ever been issued would be subject to challenge; any undotted “i” or uncrossed “t” could potentially invalidate an existing permit. We do not believe the Legislature intended MEPA to destabilize the state’s permitting system in this manner.
In a harsh
22-page dissenting opinion written by Marilyn Kelly and
signed by Michael F. Cavanagh and Elizabeth A. Weaver, the
dissenters say, "Through the decision in this case, a
court majority of four sanctions the DEQ’s unexplained and
illegal about-face on TechniSand’s critical dune mining
permit. In the process, it strikes a devastating blow to
Michigan’s environmental law. This majority perpetuates
the DEQ’s unprincipled decision to permit illegal mining
of critical dunes by insulating it from the scrutiny of
the Michigan environmental protection act (MEPA). MCL
324.1701 et seq. Its holding that the DEQ’s
decision to grant the permit to mine critical dunes is
“unrelated to” the destruction of those critical dunes
defies reality. It mocks our Legislature’s intent to
prevent environmental harm. In addition, it is contrary to
this Court’s earlier MEPA decisions." The dissenters
indicated that, "In 1995, the Michigan Department of
Natural Resources (DNR) denied defendant TechniSand
permission to mine critical dunes because it was
ineligible for a permit under the sand dune mining act1 (SDMA),
MCL 324.63701 et seq. One year later, following
Governor Engler’s reorganization of the DNR, the newly
created Department of Environmental Quality (DEQ) invited
TechniSand to apply again, citing “changes in state
government.” TechniSand reapplied and the DEQ granted a
permit despite the fact, now undisputed, that TechniSand
remained ineligible to mine critical dunes. As a result,
critical dunes that would otherwise remain untouched will
be impaired and perhaps destroyed." Access the complete
opinion and dissent (click
here).
County of Wayne v Hathcock - Jul 30, 2004: [In the Michigan Supreme Court, Case Nos. 124070, 71-78]. The majority court (Justices Robert P. Young, Jr., Maura D. Corrigan, Clifford W. Taylor, and Stephen J. Markman) issued a 49-page opinion that overturns "bedrock principles" of eminent domain and could have significant impact on brownfields and other types of land use redevelopment projects. The majority wrote, "We are presented again with a clash of two bedrock principles of our legal tradition: the sacrosanct right of individuals to dominion over their private property, on the one hand and, on the other, the state’s authority to condemn private property for the commonweal. In this case, Wayne County would use the power of eminent domain to condemn defendants’ real properties for the construction of a 1,300-acre business and technology park. This proposed commercial center is intended to reinvigorate the struggling economy of southeastern Michigan by attracting businesses, particularly those involved in developing new technologies, to the area. Defendants argue that this exercise of the power of eminent domain is neither authorized by statute nor permitted under article 10 of the 1963 Michigan Constitution, which requires that any condemnation of private property advance a “public use.” Both the Wayne Circuit Court and the Court of Appeals rejected these arguments --compelled, in no small measure, by this Court’s opinion in Poletown Neighborhood Council v Detroit. We granted leave in this case to consider the legality of the proposed condemnations under MCL 213.23 and art 10, § 2 of our 1963 Constitution. We conclude that, although these condemnations are authorized by MCL 213.23, they do not pass constitutional muster under art 10, § 2 of our 1963 constitution. Section 2 permits the exercise of the power of eminent domain only for a “public use.” In this case, Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of “public use” at the time our Constitution was ratified. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for entry of summary disposition in defendants’ favor."
Judge Elizabeth A. Weaver issued a 30-page separate
opinion in which Judge Michael F. Cavanagh agreed in
part (Section I). Judge Weaver said, "I concur with the
majority’s result and decision to overrule Poletown
Neighborhood Council v Detroit, 410 Mich 616; 304
NW2d 455 (1981), but do so for my own reasons." Judge
Cavanagh issued a separate opinion indicating, "while I
concur with the majority in overruling Poletown,
I dissent with respect to the retroactive application of
the majority’s decision." Marilyn
Kelly concurred with the Cavanagh opinion. Access the
complete opinions and dissents (click
here).
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