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Michigan's Environmental Protection Act in Its Sixth Year: Substantive Environmental Law From Citizen Suits

September 1976

Citation: ELR 50067

Author: Jeffrey K. Haynes

I. Introduction

The Michigan Environmental Protection Act of 1970 (MEPA),1 the first statute in history to authorize citizens directly to enforce their right to environmental quality, has led an active life for nearly six years. The statute's passage in 1970 resulted from an outpouring of public feeling that citizen-initiated litigation could provide an important supplement to existing administrative enforcement of environmental laws. To test this thesis, all of the court cases and administrative proceedings in voking MEPA have been monitored under a program at the University of Michigan Law School directed by Prof. Joseph L. Sax, author of the bill that ultimately was enacted as MEPA. Two reports from this project, published in 19722 and 1974,3 analyzed the early cases filed under MEPA and concluded that the Act had, in most cases, been successfully employed.

Those reports and this Article assume that the effect of a statute like MEPA cannot be accurately gauged solely by perusing reported appellate cases.4 Although there has been considerable appellate interpretation of MEPA since 1974, much of the statute's growth and impact continues to occur at the trial court level and depends on the resourcefulness of lawyers and judges faced with environmental controversies. Indeed, the true effect of MEPA might be more accurately analyzed in terms of litigation that has not been filed, or in terms of the extent to which potential defendants have incorporated MEPA's substantive environmental protection commends intotheir behavior. The nature of litigation filed under the Act can be expected to change as MEPA's precepts are acknowledged by environmental actors. Courts will not only be faced with controversies involving bald environmental misfeasance by agencies. They also will adjudicate situations in which a plaintiff is dissatisfied with the degree of proper environmental management by a defendant. Thus, subtle behavioral changes in potential defendants, which would seldom appear in appellate litigation, might become the ultimate criterion of MEPA's success.

Associate Editor, Environmental Law Reporter. A.B. 1972, J.D. 1975, University of Michigan. Former Assistant Attorney General, State of Michigan. The views expressed in this Article do not necessarily reflect those of the Environmental Law Reporter. The author wishes to express his appreciation for the guidance and instructive comments of Prof. Joseph L. Sax, University of Michigan Law School. The author also acknowledges the assistance of Frederick Small, class of 1977, University of Michigan Law School.

This Article is based on an empirical study appearing in 53 J. Urban L. 586 (May 1976). Many footnotes, some case citations, and all Appendixes in the original work have been deleted. Readers are advised to consult the study for supporting data and complete case citations.

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