Extreme Court Part 3

Jan. 31, 2007

Editor’s Note: This is the third article in a series about the embattled Michigan Supreme Court

By Anne Stanton


Should Michigan citizens or environ-mental groups be able to defend the environment, even if they don’t own the property involved?
That issue is currently before Michigan’s State Supreme Court, which has already made it harder for environmental groups to sue and get a case heard.
At stake is a 1970 law that has allowed citizens to protect Michigan’s environment for decades by suing polluters or corporations that damage a resource. But now that law is under attack by Nestle, the biggest producer of bottled water and food on the planet.

SHOT IN THE ARM
The story starts with Nestle’s Ice Mountain Division, which wants to locate its water bottling empire in the Great Lakes region, the water-envy of
the world.
After getting hounded out of Wisconsin in 2000 after proposing a plant alarmingly close to a popular trout stream, Nestle decided to try its luck in Michigan. Former Governor John Engler courted the company during the Wisconsin outcry.
In 2001, Nestle decided to build in the rural town of Stanwood, which is due south of Big Rapids. The plan was to pump and bottle free groundwater that feeds nearby wetlands, lakes and the Dead Stream, which supports a variety of fish, including trout.
Several local officials were more than happy to provide the necessary approvals since the area needed an economic shot in the arm. And they got it. The Stanwood water bottling plant in Mecosta County employs 250 people.
By May of 2002, the $150 million plant was built and Ice Mountain had carte blanche to pump as much water as it wanted to, although the company announced a self-imposed limit of 575,000 gallons a day.
(Nestle also buys spring water from the city of Evart. To double its production, it now plans a second plant in either Indiana or Evart, where it would sink two high-capacity wells, one at the pristine headwaters of Twin Creek and the other at White River, both designated as cold water trout streams.

BALANCING TEST
Nestle’s plan alarmed local and property owners and statewide conservationists, led by Michigan Citizens for Water Conservation. They feared that Nestle’s plan would harm the surrounding streams, lakes, and wetlands and filed suit in 2001.
Nestle argued that it wasn’t doing any more harm than farms and golf courses that use groundwater for irrigation.
But in 2003, a lower court agreed that pumping (as low as 150 gallons per minute) was harming the water resources and ordered Nestle to turn off the pumps.
It also ruled that the landowners living along water bodies held a higher legal standing than a business wanting to export water out of state.
Two years later, the Appeals Court affirmed the trial court’s ruling that the pumping was harmful above certain levels, and would be unreasonable under several state laws.
But the Appeals court also allowed for a “balancing test” that would pit riparian and environmental harm against the social and economic benefits of exporting water.
As a result, the Appeals Court said Nestle could temporarily pump no more than 200 gallons per minute and remanded the case back to the trial court to determine how much Nestle could pump under this new “balancing test.” The two sides agreed to impose pumping limits to minimize harm until the larger water rights issues could be decided on appeal.

“PATCHWORK OF HARM”
The affected property owners and Michigan Citizens for Water Conservation believed the “balancing test” was a dangerous precedent and filed an appeal with the Michigan Supreme Court, which heard initial arguments two weeks ago.
The group contended that the test would relax water law in Michigan in favor of selling and shipping water outside of Michigan’s watershed and the Great Lakes – sure to become a hot issue as fresh water becomes scarce. The Stanwood plant exported 226 million gallons of groundwater last year.
Nestle also filed an application for cross-appeal. The global company argued that although the conservation group and neighbors have standing to file for damages on the property they own and resources they enjoy, they have no standing to seek remedy for damage of wetlands and other resources on company property.
The Nestle attorney argued that the plaintiffs would not personally benefit if the pumping were stopped because they don’t live on or own the wetlands. (John DeVries, lead trial counsel for Nestle, had not returned a phone call for comment.)
“This issue is huge,” said Jim Olson, attorney for Michigan Citizens for Water Conservation. “The implication is that every person who owns property could create a patchwork of harm and over time literally destroy the state’s wetlands, and citizens would have their hands tied to do anything about it.”
The Michigan Environmental Protection Act (MEPA) was specifically written in 1970 to allow citizens to sue when the governmental agencies failed to enforce the law, particularly when “the DEQ sides with the polluter or the corporation as it did in this case. It’s critical that citizens have the right to enforce the law when it’s been violated,” Olson said.

PERVERTED ARGUMENT
The court has recently overturned precedent on the MEPA law and now requires that citizens must show they suffered concrete harm when a resource was damaged. The current Supreme Court gave notice in two prior cases that the “standing” issue is now fair game (Lee v. Macomb County and National Wildlife Federation versus Cleveland Cliffs Iron Co).
As a theoretical example, the Supreme Court has indicated it would not allow a Detroit resident to sue a cherry farmer for unlawful pesticide spraying, but someone living downstream from the cherry
farmer could.
That interpretation makes it more difficult for environmental groups to sue offending polluters, but definitely not impossible.
Olson hopes the Supreme Court will draw a clear line in this case on the historical side of common sense.
“It is my hope that the Court does not buy into Nestle’s perverted argument that it should use the standing issue to carve up and masticate a sound remedy that the legislators intended with MEPA – a remedy that was based on the state’s Constitution.
“If I were a legislator, I would be outraged by Nestle’s position, which is, ‘Thanks for letting us in your state and letting us take your water for free. And you know we’re a good environmental citizen as we’ve often said, but, hey, we would like to emasculate a 37-year-old Michigan environmental law so that people can’t stop us from destroying the wetlands on our property.’ Now, there is some good irony.”

Rewriting Law:

Environmentalists may lose key weapon

The 1970 Michigan Environmental Protection Act (MEPA) gave citizens a very effective weapon to use to stop polluters. Lawsuits.
But what the Legislature gave, the Michigan Supreme Court is taking away – little by little.
Here’s what the 1970 law says (at least the specific sentence that’s at issue): “The attorney general or any person may maintain an action in the circuit court – for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources…”
The four-justice majority on the Michigan Supreme Court, hand-picked by former Governor John Engler, has interpreted any person in a new way in two recent suits.
The court ruled that any person
must now show harm in some concrete way in order to have “standing” to file suit. Otherwise, they reasoned, the judicial branch of the government
has too much power. Citizens shouldn’t be able to use the court anytime
they don’t like a state law or policy. The court based its ruling on its interpretation of federal rulings.
Justice Elizabeth Weaver objected to this reasoning, saying that MEPA was specifically based on the state Constitution that requires the Legislature to protect the state’s natural resources.
She stated in her opinion that the court’s decision actually gives the judiciary more power because it was rewriting the law.
She also argued that the court overturned 30 years of precedent
by adopting federal standing rules
that do not apply to state courts and conflict with state law. And she predicted that the Michigan Supreme court might some day – openly and directly – declare the MEPA citizen-suit standing unconstitutional.
Weaver predicted the court’s decision could affect other plaintiff’s access to courts, such as filing lawsuits for violations of the Open Meetings Act.
“I dissent from the majority’s analysis of ‘standing’ and ‘judicial power’
because this analysis utterly ignores the will of the people, “ as expressed in the state Constitution, Weaver wrote.