Michigan Supreme Court Announces Support for Environmental Protection Act

A recent case provided the Michigan Supreme Court with its first opportunity to consider the state's Environmental Protection Act (EPA).¹ Although the Court was split by a broader issue involving the state constitution, the three Justices joining in the opinion of the court produced a highly significant discussion of the Act and its impact on highway condemnation procedures. Environmentalists view the decision as a major step forward in the law's development.

Michigan's Act has been highly controversial since it was passed in 1970. Key provisions grant standing to any person to bring suit to enjoin public or private action that would cause pollution or damage natural resources. When a plaintiff makes a prima facie showing that environmental harm is occurring or will occur, the court must enjoin the action unless the defendant demonstrates the lack of reasonable alternatives. Similar legislation has been enacted in six other states.

Michigan State Highway Comm'n v. Vanderkloot² began in 1971 as a hearing to condemn land for a highway improvement. The property owners attacked the constitutionality of the state's Highway Condemnation Act on two grounds: lack of due process, because the statute lacked standards defining permissible takings; and failure to comply with a provision in the state constitution requiring that the legislature provide for the protection of the state's natural resources. The trial judge agreed with the property owners on both counts and held the law unconstitutional. The Court of Appeals reversed, although one judge dissented as to the due process challenge. The environmental count was dismissed in two short paragraphs.

A six-member panel of the state Supreme Court affirmed the decision of the Court of Appeals.³ The Court split on the issue of whether the state constitution created a mandatory duty to protect the environment. Three Justices agreed with the appellate court that the language was merely declaratory. However, the three Justices signing the oinion of the court disagreed, concluding that the constitution "does create a mandatory legislative duty to protect Michigan's natural resources." Justice Williams, who wrote the opinion of the court, then concluded that the EPA fulfilled that duty. The case was remanded for a condemnation hearing to include consideration of the Highway Commission's compliance with the standards of the EPA.

Justice Williams' discussion of the EPA is less than crystal clear. This may be partially attributable to the fact that the EPA was not an issue in either the circuit or appellate courts, received minimal treatment in the briefs of both parties, and was only a peripheral issue in the oral argument. However, one statement stands out in the court's analysis. EPA is interpreted to be "a source of supplementary substantive environmental law," not merely a "separate procedural route for protection of environmental quality." Professor Sax, who drafted the original version [4 ELR 10168] of the Act, explains that the substantive nature of the law "permits a plaintiff to assert that his right to environmental quality has been violated in much the same way that one has always been able to claim that a property or contract right has been violated."⁴ Because of the rights created by EPA, the Court concluded that the necessity hearings in eminent domain cases must now include a showing by the party seeking condemnation that "there is no feasible and prudent alternative choice if the taking of a particular piece of property involves environmental pollution, impairment, or destruction."

The substantive interpretation of EPA also indirectly expands the jurisdiction of state agencies to include environmental protection. In the past, agencies in Michigan have sometimes used jurisdictional boundaries as an excuse for refusing to take action to protect the environment. The State Public Service Commission, for example, has argued that it lacked the authority to review the environmental effects of proposed routes for electric power lines, and regulations issued by another agency proscribing the use of canoes were invalidated by a court as outside the agency's authority. Under the Court's decision, EPA supplements the authority of agencies when necessary to protect the environment.

Justice Williams' opinion also leaves little doubt that the Court will eventually uphold the constitutionality of the Act. This issue has arisen in lower courts because of the EPA's broad delegation of authority to the courts to determine the reasonableness of environmental standards set by regulatory bodies. Hile no specific standard was involved in the decision to condemn the Vanderkloots' property, the Court's emphasis on judicial review of the Highway Commission's consideration of environmental alternatives suggests that the result will be the same if regulatory determinations are challenged.

While the ruling is technically only of benefit to the Vanderkloots because it lacked a majority of the Court, prior decisions indicate the chances are good that at least one more Justice will join in Justice Williams' analysis of the EPA. An immediate opportunity may occur this fall. In a case docketed for oral argument during September,⁵ the Court invited the parties' detailed discussion of the EPA, and an environmental group was granted leave to submit an amicus curiae brief. Hopefully, the Court will continue the favorable development of the EPA begun in Vanderkloot.

1. Mich. Comp. Laws Ann §§ 691.1201-697.1207 (Supp. 1973). Litigation under the Act has been monitored and reported in two articles co-authored by Professor Joseph Sax, who drafted the original EPA; Sax and Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich. L. Rev. 1003 (1972), and Sax and DiMento, Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act, 4 Ecol. L.Q. 1 (1974). Similar legislation has been considered at the federal level. See Comment, Congress Considers New Environmental Protection Act, 3 ELR 10074 (1973).

2. 4 ELR 20694 (Sup. Ct. Mich. Aug. 2, 1974).

3. One member of the Court at the time the case was argued resigned before the decision was announced.

4. Sax and Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich. L. Rev. 1003, 1005 (1972).

5. Ray v. Raynowsky, No. 55248 (Mich. Sup. Ct.).