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Her Majesty v. Detroit, City of

Citation: 19 ELR 20888
No. Nos. 88-1217, -1268, 874 F.2d 332/29 ERC 1864/(6th Cir., 05/02/1989) Rev'd

The court holds that a suit by four environmental groups and the government of Ontario, alleging that Detroit's nearly completed municipal waste incinerator will violate the Michigan Environmental Protection Act (MEPA), was improperly removed to federal court. The Michigan Department of Natural Resources issued a permit authorizing construction in Detroit of the nation's largest municipal trash incinerator, scheduled to process raw garbage into refuse dry fuel to be burned in boilers and produce steam to be sold to Detroit Edison. The court first notes that removal of cases from state to federal court requires either diversity of citizenship or a federal question present on the face of the complaint, though the "artful pleading" exception provides that plaintiffs may not artificially plead their complaints to avoid federal jurisdiction of claims that are federal in nature. The court holds that the artful pleading exception does not apply here. There is no inconsistency between the federal obligations as set out in the permit and the relief sought by plaintiffs, because plaintiffs' argument does not attack the permit, but the project as planned. Unless the artful pleading doctrine is applied narrowly, it may raise difficult issues of federal-state relations, and erode a plaintiff's control of the complaint. Moreover, under the Clean Air Act (CAA), MEPA is not part of Michigan's [19 ELR 20889] state implementation plan (SIP), and even if it is, it is not the sort of SIP requirement that would generally be deemed federal law. MEPA does not impose the sort of specific emission standards enforceable by the CAA, but is a state statute that provides de novo review in state courts, and allows state courts to determine adverse environmental impact and to take appropriate measures. MEPA creates a state environmental common law unaffected by federal law. The court holds that plaintiffs' state claims are not collateral attacks on the federal permit because no judicial determination has been obtained as to whether the defendants' conduct complies with MEPA, and plaintiffs' failure to intervene in a prior case, does not bar this action. The administrative proceeding before the Michigan Air Pollution Control Commission was not a prior adverse determination.

Finally, the court holds that the complete preemption exception to the well-pleaded complaint rule is inapplicable in this case, because the CAA does not clearly manifest congressional intent to preempt MEPA. The district court erred in holding that the CAA preempted any action under MEPA regarding pollution standards. The CAA displaces state law only to the extent that state law is not as strict as emission limitations established in the federal statute. The CAA's savings clause compels the conclusion that plaintiffs are not precluded by the CAA from pursuing claims under MEPA, and the fact that a preemption defense can be raised is not enough to justify removal.

A dissenting judge would hold that because the CAA requires project proponents to apply for and receive a permit that certifies that it is in compliance with both federal and state laws, challenges to these standards raise questions of federal law.

[The district court's decision is published at 19 ELR 20170.]

Counsel for Plaintiffs-Appellants
Donnelly Hadden
One Kennedy Sq., Ste. 2238, Detroit MI 48226
(313) 964-3535

Counsel for Defendants-Appellees
John D. Parich
Honigman, Miller, Schwartz & Cohn
1400 Michigan National Tower, Lansing MI 48933
(517) 484-8282

Before: MILBURN and BOGGS. Circuit Judges: and CONTIE. Senior Circuit Judge.