The Michigan Environmental Protection Act of 1970: Roberts v. Michigan: a Test Case

The Michigan Environmental Protection Act of 1970, 1 ELR 43001, Act 127, P.A. 1970, Mich. Comp. Laws Ann. §§ 691.1201 et seq.

As of October 1, 1970 environmental degradation of all kinds in the state of Michigan has been subject to privately initiated civil actions under a simple statute which may well provide a model for legislation in other states. A similar bill has been introduced in the United States Senate and hearings commenced on May 12, 1970. ER Current Developments 46-47, 80, 275-76, 423).

Originally authored by Professor Joseph Sax of the University of Michigan Law School, the act assumes, without specifically declaring, a public trust covering all natural resources and establishes a right of suit for declaratory or equitable relief to protect the corpus of that trust. The act provides that upon a prima facie showing that defendant's conduct has or is likely to degrade "air, water or other natural resources," the defendant must establish that no feasible and prudent alternative to defendant's proposed action exists and also that defendant's conduct is "consistent" with the promotion of public health and welfare in light of the state's "paramount" concern with the maintenance of the natural environment. Significantly, the act extends the right to maintain such a suit to any public or private "legal entity" against any other public or private legal entity or part thereof. (See discussion of Roberts v. Michigan, infra.).

While the act removes several major roadblocks to the maintenance of an environmental suit (e.g., creating the right to sue and apparently thus foreclosing standing and sovereign immunity defenses), its most interesting feature is the broad language in which the statute characterizes rather than actually defines violations. The act apparently invites the Michigan courts to evolve a common case law forthe environment.

On October 22, 1970 plaintiff, a Michigan citizen-taxpayer, brought a class action (comprising all Michigan citizen-taxpayers) in the Circuit Court, Ingham County, Michigan, under this act. By his suit plaintiff seeks "to bring under control the major cause of air pollution in the United States, namely automotive vehicles." (Plaintiff's Brief In Opposition to Motion for Summary Judgment and Accelerated Judgment, p. 1, Roberts v. Michigan, Civ. Ac. No. 12428-C (Cir. Ct. Mich., filed Oct. 22, 1970).

When filed the suit sought declaratory and injunctive relief restraining the state, the Secretary of State and the Director of the State Department of Highways from: licensing automotive vehicles; constructing highways; using automotive vehicles owned by them; or appropriating tax dollars for any purpose which contributed to the automotive vehicle pollution complained of until "such time as adequate and sufficient standards, safeguards, rules and regulations are adopted and enforced by Defendants for the control of pollution, impairment or destruction of the air herein complained of." Complaint, p. 7. Plaintiff also asked judgment for damages for prior injuries in the amount of $510,000,000. The state filed a motion for summary judgment, arguing that the officials named in the complaint had no authority to impose the standards requested and that their functions were merely ministerial. The state also pleaded sovereign immunity as a bar to the action and noted that the Environmental Protection Act of 1970 did not expressly grant jurisdiction to state circuit courts to recognize such an action where money damages were sought. (The state argued that the Michigan Court of Claims, MCLA § 600.6419; MSA 1962 Rev. Vol. § 27A.6419, would have jurisdiction of such an action.) The pertinent provision of the Environmental Protection Act is section 2 (1): "… [Any legal entity] may maintain an action in the Circuit Court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equipment relief against the state … [or other legal entity] for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." 127 P.A. 1970.

The motion for summary judgment was argued on December 11, 1970. At the close of argument the judge granted defendant's motion as to plaintiff's plea for damages, but took the remainder of the case under advisement.