State high court overturns environmental decision

By Ed White Associated Press DETROIT (AP) -- The Michigan Supreme Court has reversed a major decision that expanded the ability to sue the state in environmental disputes, reigniting an ideological battle between liberal justices and conservatives who are back in the majority after the fall election. In a 4-3 order released Tuesday, the court threw out a four-month-old opinion in a case involving the discharge of partially contaminated water to the headwaters of a popular trout stream in northern Michigan. The court's liberal majority in December had used the case to give more rights to people to challenge state regulators over permits. But the court's new conservative majority said the dispute was moot and should not have been heard last year because Merit Energy had dropped plans to use the Au Sable River. The case "presents nothing but abstract questions of law, which do not rest upon existing facts or rights," said justices Robert Young Jr., Mary Beth Kelly, Stephen Markman and Brian Zahra. Experts had predicted such an outcome after Kelly's election put Republicans in control of the court on Jan. 1. "Most environmental attorneys didn't rush to file cases," said Noah Hall, who teaches environmental law at Wayne State University law school in Detroit. Even if some people disagree with the new decision, he said, it at least eliminates any uncertainty. "Every time the majority shifts, justices seem to rather aggressively attempt to leave their mark on the law before the majority shifts again," Hall said. "That's no way to run a court system." Indeed, there is a turbulent history behind the right to sue Michigan regulators under the state's Environmental Protection Act, known as MEPA. In 2004, conservatives on the court in a case known as Preserve the Dunes mostly limited watchdog groups to challenge on procedural grounds, not on the potential impacts of a project, such as groundwater pumping, sand mining or a new coal-burning plant. Democratic justices, in one of their last acts in the majority, overturned that decision in 2010 and said any citizen could take the state to court, even if they didn't live near a proposed project. Young, now chief justice, called the move a "naked exercise of power." Now, with the latest order, the right to sue has been limited again. "The order ... vacating the December 29, 2010 opinion does not undo precedent; it restores precedent," Zahra said. A dissenting justice, Michael Cavanagh, took a jab at Young, saying he was inconsistent. He noted how Young had "eloquently bemoaned" the reconsideration of another case in 2009 when the composition of the court was different. "Now, in what appears to be 'deja vu all over again,' Chief Justice Young is happy to join in our newly composed court's undoing of recent precedent," Cavanagh said. Attorney General Bill Schuette, a Republican, had urged the court to reconsider the December opinion. "We are very pleased with the ruling," spokesman John Sellek said. "The previous ruling would have ground the permitting process to a halt by permitting far more lawsuits, hurting Michigan's economy." Published: Thu, Apr 28, 2011