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Detroit Audubon Soc'y v. Detroit, City of

Citation: 19 ELR 20170
No. Nos. 87-CV-71577-DT, -71578-DT, 696 F. Supp. 249/27 ERC 2201/(E.D. Mich., 02/24/1988)

The court holds that four environmental groups and the government of Ontario cannot maintain actions under the Michigan Environmental Protection Act (MEPA) challenging Detroit's construction of a municipal waste incinerator. Plaintiffs seek an injunction prohibiting further construction or an order requiring particular control technology to be used. The court first takes judicial notice of a related case in which the court had determined that, based on the record at that time, defendants were acting pursuant to a validly issued permit. The court holds that the Ontario plaintiffs lack standing, since potential injury to their air and water is not within the zone of interest protected by MEPA, which addresses only threats to Michigan's natural resources. The court holds that the environmental plaintiffs' lawsuit is barred by laches, since by the [19 ELR 20171] time the lawsuit was filed construction of the incinerator was largely complete, millions of dollars had been spent, and ample opportunity for public comment on the emissions control technology to be used at the facility had been provided.

The court next holds that the environmental plaintiff's claims are not barred by collateral estoppel or res judicata, since earlier litigation concerning the waste incinerator challenged the validity of the facility's permit and did not raise MEPA issues. The court further holds that the issuance of a valid permit for the facility under the Clean Air Act constitutes an affirmative defense under MEPA, since the federal permitting process determined that the facility as proposed is consistent with public health, safety, and welfare, and there was no feasible and prudent alternative. The court also holds that MEPA's general environmental standards are superseded by more specific air pollution legislation that endorsed the regulations promulgated by Michigan's Air Pollution Control Commisssion. The court states that in essence, plaintiff's are asking it to set aside the Clean Air Act's permitting scheme, which the court declines to do.

Counsel for Plaintiffs
Mark A. Richardson
1077 Rankin Dr., Troy MI 48083
(313) 963-7431

Jeffrey K. Haynes
Vanderkloot, Haynes & Baxter
Ste. 200, 860 W. Long Lake Rd., P.O. Box 980, Bloomfield Hills MI 48013
(313) 540-8388

Counsel for Defendants
John D. Pirich
Miller, Canfield, Paddock & Stone
Ste. 900, One Michigan Ave., Lansing, MI 48933
(517) 487-2070