The Michigan Environmental Protection Act of 1970: cases brought under it; similar state and federal bills; decision in Roberts v. Michigan

Cases brought to date under the Michigan Environmental Protection Act of 1970

On Oct. 1, 1970 the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970 took effect in the state of Michigan. See text of the act at 1 ELR 43001. Since that time, 13 lawsuits have been [1 ELR 10080] brought under the act, six of which were brought by units of state and county government. The first action filed under the act, a taxpayer's class action, has reached decision in a county court, which found portions of the act unconstitutional. See Roberts v. Michigan, 1 ELR 20227 (Mich. Cir. Ct. Ingham Co., May 4, 1971). See previous discussion in Summary and Comments, 1 ELR 10013, and the discussion below. See also 1 ELR Dig. 171.

A second action filed March 15, 1971, Muskegon County v. Environmental Protection Organization, Docket No. C-5585 (Muskegon Co. Circ., May 9, 1971), has also reached a final determination. In that case the County of Muskegon planned a new sewage treatment project which involved tertiary treatment by spray irrigation. The project was opposed by citizens in the area of the proposed treatment site. They feared that since the water table is only a few feet below and surface, the liquid wastes would percolate so quickly through the soil that removal of contaminants would not be complete and pollution of the underg bund water would result. In March of 1971 the County brought an action for declaratory judgment against the Environmental Protection Organization (the local citizens group which opposes the project) and all other taxpayers of the County, asking that the planned project be declared not to constitute a nuisance. The Environmental Protection Organization counterclaimed under the Environmental Protection Act. Trial was held May 4-9, 1971. The court held that the design of the system did not demonstrate that a nuisance or a violation of the Environmental Protection Act would result from its implementation. The court also reserved the power to reevaluate the plant once it is in operation if there is evidence that pollution is occurring.

The following cases, all save one in Michigan county courts, are still pending:

Brown v. Lever Brothers, Inc., Doc. No. 161228 (Wayne Co. Circ., filed ___)

Plaintiffs seek an injunction against the sale in Michigan of detergents containing phosphates, on the ground that phosphates degrade rivers, streams and lakes. In addition, plaintiffs are asking for the cost of phosphate removal facilities now required by the Michigan Water Resources Commission. Since plaintiffs are private parties, this latter claim for relief is a novel one couched in the language of the more traditional taxpayer's suit. The present status of the case is unclear after the recent passage by the Detroit Common Council of an ordinance limiting the phosphate content of detergents. Two pretrial hearings have been held.

Davis v. Michigan, Department of Natural Resources, Doc. No. 482 (Otsego Co. Circ., filed Sept. 12, 1970

Plaintiff sought to stop drilling for oil in the Pigeon River State Forest. The case was dismissed by stipulation of the parties after a temporary moratorium on the granting of permits for oil drilling was announced by the Department. See 1 ELR Dig. 158.

Lakeland Property Owners Ass'n v. Northfield Township, Doc. No. 1453 (Livingstone Co. Circ., filed Aug. 27, 1970)

Plaintiffs are downstream from the present sewage outfall of Northfield Township. Prior to the filing of this suit Northfield Township planned to expand its sewage treatment facilities. Plaintiffs sought and obtained a preliminary injunction to prevent the expansion as well as any further tap-ins on the sewer lines leading into the plant, pending the outcome of the suit. The court also rejected an early motion by the defendants to remand the case to the Water Resources Commission. Trial was June 14, 1971.

Leelanau Cty. Bd. of Commissioners v. Michigan Dept. of Natural Resources, Doc. No. 510 (Leelanau Co. Circ., filed March 1, 1971)

The plaintiffs ask that the state be prevented from transferring property in the present D. H. Day State Park to the federal government for the creation of the Sleeping Bear Dunes National Park. Relief is sought on two grounds: (1) the land was given to the state subject to the condition that it remain a state park, and thus the land will allegedly revert to the heirs of the original donors if the state attempts to convey it to the federal government. (2) The plaintiffs claim that National Park status for the Sleeping Bear Dunes would attract many visitors, and since the Park Service does not have adequate personnel to control the crowds, degradation of the land would result. The Attorney General has responded that since the legislature has not yet passed a bill authorizing the Department of Natural Resources to transfer land to the federal government, the action is premature.

Marble Chain of Lakes Improvement Ass'n v. Dept. of Natural Resources, Water Resources Comm'n, Doc. No. 235-70 (Branch Co. Circ., filed Dec. 14, 1970)

Plaintiffs are a group of citizens who have asked that the Water Resources Commission be prevented from allowing further use of Michigan's waters for waste assimilation.They are challenging the Water Resources Commission's use of regulations based on a "receiving body standard." The claim is that no limits are placed on polluters until the water is degraded to the standard set up by the Commission, and that as a result the regulations are in violation of the Michigan Environmental Protection Act as well as Article IV, § 52 of the Michigan Constitution. The Attorney General's motion for a summary judgment was denied, and the case awaits further proceedings.

In re Michigan Consolidated Gas Co., Before the Michigan Public Service Comm'n., No. U-3802 (filed Nov. 5, 1970)

[1 ELR 10081]

In January, 1971, the Attorney General and the Wayne County Health Department, Air Pollution Control Division, intervened in hearings before the Michigan Public Services Commission pursuant to § 5(1) of the Michigan Environmental Protection Act. The Michigan Consolidated Gas Co. had suggested an order of priority for uses of natural gas when supply is limited. Of the six categories, the use of natural gas for air pollution control was placed fifth and sixth; this is significant in that the company predicted that only priorities one, two and three would be supplied due to the current gas shortage. As a result of this intervention, the priorities were changed so that if, in the opinion of the State Air Pollution Commission, or the Wayne County Air Pollution Commission, natural gas is needed for air pollution control, applicants for this use will be in the second priority category. See 1 ELR Dig. 161.

Water Resources Comm'n v. County Road Dept. (Information not yet available)

Wayne Cty. Health Dept. v. Edw. Levy Co., Doc. No. 16629 (Wayne Co. Circ., filed Oct. 1, 1970)

Wayne Cty. Health Dept. v. McLouth Steel Corp., Doc. No. 16622 (Wayne Co. Circ., filed Oct. 1, 1970)

Wayne Cty. Health Dept. v. Chrysler Corp., Huber Foundry, Doc. No. __ (Wayne Co. Circ., filed Oct. 1, 1970)

The Air Pollution Control Division of the Wayne County Department of Health has limited itself in the past to misdemeanor penalties as a means of enforcing the air pollution laws. Immediately after the Michigan Environmental Protection Act went into effect, the Division filed suits against three polluters, in the belief that such lawsuits would be a more effective enforcement tool than $100 fines. The actions against the Edw. Levy Co., which allows dust to escape from uncovered slag heaps, and McClouth Steel, whose foundry is a source of particulate emissions, are still inthe early stages of negotiation between the Department and the defendants. In the suit against Chrysler Corp., after negotiations had gone on for six months, a group of 328 citizens petitioned successfully to intervene. Subsequent negotiations between the three parties have not resolved all differences, and the citizens have asked that a trial date be set.

West Michigan Action Council v. Betz Corp., Doc. No. 11409 (Kent Co. Circ., filed March 12, 1971)

The Betz Foundry is located on the outskirts of Grand Rapids, Michigan, and is allegedly operating in violation of the rules and regulations of the Michigan Air Pollution Commission. The Commission staff has been in contact with the foundry for some time, but no Commission action had been taken prior to the suit by the citizen group. The case was held in abeyance at the agreement of the parties until the Commission could act. Plaintiffs subsequently filed a motion to be allowed to intervenue as parties in any further negotiations between the Commission and the Betz Foundry. The judge declined to rule on the motion until the plaintiff applied to the Commission to be allowed to intervene.

State and federal bills passed and pending which are similar to the Michigan act

On Oct. 1, 1971 another act very similar to the Michigan law will take effect in the state of Connecticut (H.B. 5037, File No. 65). Minnesota already has in effect a statute which borrows several concepts from the Michigan act. (H.F.284, S.F.418). Indiana also has in effect a statute which borrows several concepts from the act. (S.A.345). At least 20 states are considering legislation which resembles the act:

States Bills

Alaska S.B. 55

California S.B. 177, Assembly Bill 985, Assembly

Bill 1311, 838, S.B. 490

Colorado S.B. 285, S.B. 331

H.B. 1113

Florida H.B. 4524

Maine Legislative Document 965

Maryland H.B. 196

Massachusetts H.B. 5233, S.B. 637, H.B. 5023

S.B. 907, H.B. 4312

Missouri H.B. 421

Montana Bill did not come out of committee

New Jersey Assembly No. 1268

New York Assembly No. 4761, 4705-A, 33-B and

4231

North Carolina Two drafts extensively studied by Rep.

McNeill Smith

Ohio Still in draft form

Oregon S.B. 4

Pennsylvania H.B. 958, 2000

Rhode Island Legislation has been introduced; no

further information

Tennessee H.B. 1836, S.B. 288

Texas H.B. 56, S.B. 145

Vermont S. 48

Wisconsin S.B. 123

California, Massachusetts and New Jersey appear closer to passage of their bills than the other 22 states. ELR will provide as complete listing as possible in subsequent issues, with identifying bill numbers, and will make the texts available through its Facsimile Service.

The Michigan act has spawned several federal counterpart bills which are distinguished from each other by minor refinements only. S. 1032 (Hart, McGovern); H.R.49 (Dingell), H.R.2288 (Ford), H.R.5074-76, H.R.8331 (Karth, Dingell), all 92d [1 ELR 10082] Cong. 1st Sess. (1971). In the Senate the Subcommittee on Environment of the Senate Commerce Committee held two days of hearings on April 15 and 16 with respect to S.1032. These hearings have not yet been printed. Last year Senator Hart, who is chairman of the Subcommittee on the Environment, held two days of hearings on an earlier but almost identical bill. See The Environmental Protection Act of 1970, S.Doc. No. 91-80, 91st Cong. 2d Sess. (1970) (169 pp.). In the House hearings were held on H.R. 49 and H.R. 5076 by the Subcommittee on Fisheries and Wildlife Conservation on May 7th in Ann Arbor, Michigan, in order to obtain the testimony of state officials and citizens on their experience with the Michigan act during its first year of operation. On June 9 and 10 in Washington further hearings were held. None of the record of the hearings on the bills in the 92nd Congress has yet been printed.

Senator Hart plans one more set of hearings, the dates of which have not yet been announced. Congressman Dingell plans to continue hearings this month and in July. They will resume in September after the summer recess.

Thus a flurry of activity in Congress has developed over the Michigan statute approach to environmental protection. Public interest in the success of this draft legislation is growing apace. See James R. Wagner, "Bills to Authorize Class Actions Recognize 'Right' to Clean Environment," 3 National Journal 1245 (June 12, 1971).

County Court holds one application of the Michigan Environmental Protection Act of 1970 unconstitutional: Roberts v. Michigan

On Oct. 22, 1970, 21 days after the effective date of the Michigan Environmental Protection Act, Charles G. Roberts, a Michigan taxpayer, brought the first action under that act. See Summary and Comments, 1 ELR 10013 and 1 ELR Dig. 171. Plaintiff set his sights high: he sought injunctive relief against the state, the Secretary of State and the Director of the State Department of Highways to prevent the use of Michigan's streets and highways, and to prevent the use of taxes for the construction of highways, until the court or defendants established rigorous vehicle air pollution emission controls. Plaintiff also sought $510,000,000 in damages to taxpayers for harm caused by previously allowed automobile pollution. The court granted defendant's motion for summary judgment on Dec. 11, 1970 with respect to the claim for monetary damages but took the remainder of the case under advisement. 1 ELR Dig. 171. On May 4, 1971 Circuit Judge Jack W. Warren found that at least as far as the Michigan Environmental Act pertains to pollution arising from the operation of motor vehicles, section 2(2) (b) of the act is unconstitutional.

The court found that the act purported to delegate legislative authority and responsibility to the courts, which it could not do, because "historically" the matter of prescribing rules and regulations for the operation of motor vehicles has been within the province of the legislature. 1 ELR 20227. The court found that existing legislative standards which only regulated "annoying smoke" and "excessive fumes or smoke" were "quite clearly" deficient, but that the court could not direct the legislature to set adequate standards, nor could it set such standards itself, because to do so would require an unconstitutional arrogation of law-making power which would reach beyond the allowable limits of legislative delegation.

Few actions have been brought to date under the Michigan act. Certainly the 13 lawsuits filed — six of which have been filed by the state itself — have not flooded Michigan's courts with the welter of litigation which some opponents of the legislation feared. However, the act's deliberately broad mandate forbidding the "pollution, impairment or destruction" of the state's "air, water and other natural resources and the public trust therein" did leave open the possibility that some actions might be filed which immediately pushed at the margins of the act and asked for more than the young and uncertain act could deliver. In this contest between motor transport and the act, it is not surprising that if collision could not be avoided, the act, rather than all motor transport, would suffer.

In fact, decision of the case on constitutional grounds could have been avoided by the court. In Roberts parties focused attention on section 2(2) (b) of the act from the beginning. It was this section which the court found unconstitutional as applied to vehicular pollution, although neither plaintiff nor defendant mentioned the act's constitutionality in his moving papers until requested to do so by the court. However, section 5(2) is much more relevant to resolution of the problem presented by the Roberts case than section 2(2) (b). Section 5(2) says that "In … licensing … proceedings … any alleged pollution … of the air … shall be determined …" by the licensing agency and no conduct shall be authorized which pollutes if a feasible and prudent alternative course of action which does not produce such pollution is available. 1 ELR 43002. Thus it would appear that licensing authorities (such as defendant Secretary of State who inspects and licenses motor vehicles) must examine the environmental consequences of the licensing authority which they possess and withhold licenses where applicants who are causing pollution, as determined by the authority, have available to them reasonable, alternative modes of conduct which do not pollute. The court could have ruled either of two ways on section 5(2). [1 ELR 10083] First, the court could have held that although the Secretary of State licenses motor vehicles and inspects them for safety, he is not authorized by the statute to control air pollution from vehicles and does not have the mandate, budget or expertise either to "determine" the environmental impact of licensing vehicles or to prohibit operation of vehicles because "reasonable" alternatives to motorized transport exist. Simply put, he is not "in the business" of controlling vehicular air pollution. Or, second, the court could have held that the act does in fact require the Secretary of State to determine the extent of damage caused by motor vehicle air pollution, but that the court would not grant the relief requested because there does not exist "a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare" that would afford the Michigan public some other means of transport.

The first alternative ruling is a questionable precedent to set. If in Roberts and in subsequent decisions agencies are excused under a narrow interpretation of section 5(2) from allowing environmental considerations to be raised in agency proceedings and from taking these considerations into account in agency decision-making, then the broad intent of section five, akin to the basic intent of the National Environmental Policy Act of 1969, will be vitiated to the extent that such agencies convince courts that under their statutory authority they are not "in the business" of protecting the environment, nor do they have the necessary environmental expertise.

Of course the answer to the agencies' contentions is that the Environmental Protection Act requires them to protect environmental values and to develop the expertise necessary to make environmentally informed decisions. However, no guarantee exists that courts will agree with this reasoning. Thus, the second alternative holding offers a better way out of the "constitutional" dilemma which the first holding in Roberts unfortunately raises. By finding that section 5(2) allows the Secretary of State to continue licensing motor vehicles and to continue to allow the use of Michigan's roads and highways, because the "reasonable requirements of the public health, safety and welfare" demand it, the court is saying no more than that the act never contemplated a total stoppage of motor transport until the air pollution associated with it could be controlled.