ELR Citation: ELR 20532
No(s). 226214 (Mich. Ct. App. Feb 19, 2002)

The court holds that a county circuit court lacks subject matter jurisdiction to conduct preenforcement review of a response activity selected or approved by the Michigan Department of Environmental Quality (MDEQ) within the ambit of Part 201 of the Michigan Natural Resources and Environmental Protection Act (NREPA). the case arose after a company and the MDEQ disputed the best course of action remediating a lake. The company preferred containment, while the MDEQ preferred dredging. Part 17 of the NREPA was enacted to preserve the environment through the obtaining of declaratory and injunctive relief in court, while Part 201 of the Act encourages the prompt cleanup of hazardous substances through administrative or private action and assignment of financial liability. The company argued that the dredging of the lake would pollute, impair, or destroy the environment in violation of Part 17 of the NREPA. Thus, it argued that Part 17 trumps Part 201's preenforcement bar to judicial review. The court first holds that principles of statutory construction dictate that claims under Part 17 may not be brought where the underlying controversy is over a response activity as defined in Part 201. Otherwise, the MDEQ's efforts to clean up toxic sites might often be delayed by preenforcement litigation. As applied, Part 17 supplements, but does not supplant, the denial of subject matter jurisdiction found in Part 201. The MDEQ must comply with Part 17, but judicial review is delayed until after response activity is completed. The trial court, therefore, properly dismissed the company's claim against the MDEQ for lack of subject matter jurisdiction. The court also holds that the company's argument that deferring judicial review until after the MDEQ completes response activity denies the company due process is without merit.

The full text of this decision is available from ELR (7 pp., ELR Order No. L-460).

[Counsel not available at this printing.]