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Detroit Edison Co. v. Michigan Dep't of Envtl. Quality

ELR Citation: 29 ELR 20346
Nos. 98-74129, 29 F. Supp. 2d 786/(E.D. Mich., 12/15/1998)

The court holds that the Eleventh Amendment does not bar the removal from state to federal court of a power plant's federal and state claims against a state environmental agency. The power plant filed claims in state court against state and county environmental agencies after they claimed that the plant violated the Clean Air Act (CAA), state law, and a county ordinance. The agencies removed the case to federal court, and the power plant subsequently filed a motion to remand the case on Eleventh Amendment grounds. The court first holds that the Eleventh Amendment does not bar removal of the power plant's claims against the state agency because the agency has chosen not to assert its immunity defense under the Eleventh Amendment. By more clearly stating its conception of Eleventh Amendment immunity as a defense the state commands, the U.S. Supreme Court in Wisconsin Department of Corrections v. Schacht, 118 S. Ct. 2047 (1998), has altered the conceptual assumption on which prior decisions are based and has made them flawed on the precise issue before the court. Consequently, no precedent compels an answer by stare decisis, and Schacht is the most persuasive authority. The court also holds that the circumstances of this case do not compel the court to exercise its discretion sua sponte to raise and decide the issue of the agency's Eleventh Amendment immunity from suit in federal court. The court further holds that the power plant's claims against the agency are within its jurisdiction. Section 1441(a) of the removal statute permits removal of the power plant's federal claims because they are within the original jurisdiction of the federal courts. In addition, the power plant's federal and state-law claims derive from a common nucleus of operative fact and so the state-law claims qualify for supplemental jurisdiction under 28 U.S.C. §1367(a). Thus, the removal of the state-law claims was proper.

The court also holds that the interests of judicial economy, convenience, fairness, and comity would best be served by resolution of all claims in federal court. While the state-law claims have the edge in numbers, they do not substantially predominate in their magnitude or scope, especially given the intertwined nature of the federal and state environmental claims in a case where the U.S. Environmental Protection Agency has delegated CAA enforcement to the state agency. In addition, judicial economy speaks a strong preference for retaining the state-law claims, even if they may potentially be novel and complex. And although the state court has concurrent jurisdiction over all the federal claims brought by the parties, this is almost always true and is not dispositive in light of the other factors already discussed.

Counsel for Plaintiff
Christopher C. Nern
The Detroit Edison Company
2000 Second Ave., 688 WCB, Detroit MI 48226
(313) 235-8000

Counsel for Defendants
Todd B. Adams, Ass't Attorney General
Attorney General's Office
Law Bldg.
525 W. Ottawa, Lansing MI 48909
(517) 373-1110