Supreme Court Vacates Anglers of the AuSable Decision

4/28/2011 Dennis J. Donohue, Gaëtan Gerville-Réache

The Michigan Supreme Court has vacated its December 29, 2010, decision in Anglers of the AuSable, Inc. v. Department of Environmental Quality (DEQ). The court's decision this week revives the principle in Preserve the Dunes, Inc. v. DEQ, that the Michigan DEQ cannot be sued under the Michigan Environmental Protection Act (MEPA) for merely issuing a permit.

In its earlier opinion in Anglers, the Michigan Supreme Court had overruled Preserve the Dunes to hold that as soon as the DEQ issues a permit, it can be sued in circuit court for violating MEPA. As a result, the Anglers decision allowed permit opponents to bypass administrative remedies and deferential administrative appeal standards in favor of the immediate opportunity for discovery and unfettered judicial review allowed in a MEPA lawsuit. With the Anglers decision now vacated, permit opponents are once again limited to the deferential administrative appeal process -- and only after first exhausting their administrative remedies.

The court's recent order also has other implications for environmental permit challenges. The majority in Anglers had commented that "any person" could bring a claim under MEPA, overriding the court's earlier decision in Michigan Citizens for Water Conservation v. Nestle Waters North America Inc. Under Nestle, only owners and users of affected property could challenge a permit. Vacating the Anglers decision does not restore Nestle because Lansing School Education Ass'n v. Lansing Board of Education overruled Nestle earlier in 2010. But the recent changes in the Michigan Supreme Court's composition and the order vacating the Anglers opinion signal that the court may eventually restore Nestle's limitations on who can challenge a permit.

Finally, the new order removes from Michigan case law the theory that any discharge of water with even the slightest level of contaminants into a "non-contaminated" water source is unreasonable and could violate other's riparian rights. Thus, Michigan law continues to require use of a balancing test to determine whether one owner's riparian rights unreasonably interfere with another's.

If you have questions about the decision, please contact Dennis Donohue (ddonohue@wnj.com or 616.752.2192) or another member of the Environmental Practice Group or Gaetan Gerville-Reache (ggerville-reache@wnj.com or 616.752.2207) or another member of the Appellate Practice Group at Warner Norcross & Judd.

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