1 ELR 20227 | Environmental Law Reporter | copyright © 1971 | All rights reserved

Roberts v. Michigan

Civ. Action No. 12428-C (Mich. Cir. Ct. May 4, 1971)

Taxpayer's suit against Michigan's Secretary of State and state highway department director seeking injunction against issuance of motor vehicle licenses or permission for use by automobiles of state roads and highways until vigorous new emission standards are imposed by or at the direction of the court dismissed. The two state officials lack authority to set standards for vehicles not owned by state. At least with respect to alleged pollution arising from the use of motor vehicles, Michigan's Environmental Protection Act of 1970 unconstitutionally delegates legislative authority to courts by requiring them to direct the adoption of environmental standards "approved and specified by the court," where existing standards are found by the court to be inadequate. This is a law-making, as opposed to regulatory or law enforcement function, and is thus unconstitutional.

Counsel for Plaintiff:
Robert C. Hauke
Hauke, Gifford & Patalidis
26400 Southfield Road
Lathrup Village, Mich. 48075
(313) 357-1130, 442-5686

Counsel for Defendant:
Frank J. Kelley Attorney General
Russell A. Searl Assistant Attorney General
James D. Mueller Assistant Attorney General
4th Floor, Highway Bldg.
Lansing, Mich. 48926
(517) 373-1480

[1 ELR 20227]

Warren, C.J.


Plaintiff, Charles G. Roberts, brings this action under the provisions of the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970 (1948 CL 691.1201 et seq.; MSA 14.528(201) et seq.; 1970 PA 127) which act provides in part as follows:

(1) . . . any person . . . may maintain an action in the circuit court . . . for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state . . . for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction.

After alleging that the operation of motor vehicles is a major cause of pollution, Plaintiff asks injunctive relief against the Secretary of State, the Director of State Department of Highways, and the State of Michigan to prevent the further issuance of licenses to operators of motor vehicles, to prevent the use of streets and highways, and to prevent the use of tax monies for the construction of highways etc. until sufficient safeguards, standards, rules, and regulations are adopted and enforced. At paragraph 16 of Plaintiff's First Amended Complaint he alleges that:

This Court has the power and the authority, and is hereby requested, under the aforesaid Act 127, PA 1970, (Enrolled House Bill No. 3055) to order, impose or establish rules and regulations governing the replacement, repair and protection of the natural resources and the water of the State of Michigan and regulating the use of streets and highways therein to prevent or restrict pollution of the air, and to enjoin the Defendants . . . (etc.)

(A similar statement and request is set forth in paragraph 11.)

The Attorney General has moved for Summary Judgment and Accelerated Judgment as to all Defendants alleging that as to the Secretary of State and the Director, State Department of Highways neither of these persons have the authority to adopt standards, rules, regulations, and safeguards in relation to pollution arising out of the operation of motor vehicles. The Court, after hearing arguments and reviewing the pleadings concurs in this conclusion, i.e. that the case should be dismissed as to the Secretary of State and Director, State Department of Highways so far as Plaintiff claims these persons have authority to adopt rules, regulations, standards, and safeguards for vehicles other than as Plaintiff describes in paragraph 17 of his Complaint. ("First Amended Complaint"). The want of authority to adopt rules, regulations, standards, and safeguards as to vehicles owned or operated by these two Defendants in their respective departments has not been demonstrated, and for this reason they should remain as defendants. (This conclusion however bows to the conclusions hereinafter stated in relation to the validity of the Act. It is stated only to avoid duplication of consideration in the event that the conclusions of the Court hereinafter stated are not adopted by a higher court on appeal.)


At least as applied to the matter of alleged pollution arising from the operation of motor vehicles, this court concludes that the Act is unconstitutional for the reason that it purports to delegate legislative authority and responsibility to the courts.


Sub-paragraph 2 of Section 2 of the Act reads as follows:

(2) In granting relief provided by subsection (1) where there is involved a standard for pollution or for an anti-pollution device or procedure, fixed by rule or otherwise, by an instrumentality or agency of the state or a political subdivision thereof, the court may:

(a) Determine the validity, applicability and reasonableness of the standard.

(b) When a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.

Historically the matter of prescribing rules and regulations for the operation of motor vehicles has been within the province of the [1 ELR 20228] legislature. The legislature, for example, caused to be drafted and adopted Act 300 of the Public Acts of 1949 — the Michigan Vehicle Code (MCLA 257.1 et seq.; MSA 9.1801 et seq.). This Act repealed other and earlier acts passed by the legislature relating to the operation of motor vehicles.

The legislature did adopt a standard for pollution or for an antipollution device or procedure in the Vehicle Code. Section 707 (MCLA 257.707; MSA 9.2407) provides:

(a) Every motor vehicle shall at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise and annoying smoke. . . . (emphasis added)

(b) The engine and power mechanism of every motor vehicle shall be so equipped and adjusted to prevent the escape of excessive fumes or smoke. (emphasis added)

Quite clearly the legislature did adopt standards, and quite clearly those standards are deficient.

This gives rise to the first question which is this: "Just who is it that this Court will 'direct' to adopt adequate standards?" Could it be any body other than the legislature? (The Court recognizes that the statute uses the word "may" in relation to the Court directing the adoption of approved and specified standards. However, to treat this provision as meaning anything other than "shall direct," after having determined that the standards are deficient, would render the legislation meaningless.) This Court is disinclined to attempt to "direct" the legislative branch of government. Courts should resist the temptation to legislate and to substitute themselves and their judgment for that of the duly elected representatives of the general public. Knibbe v City of Warren, 363 Mich 283 (1961).

The second question persented is this: "What real tools does this Court have to determine what adequate standards are?"

The third question is this: "Wouldn't the public be better served with an enactment of the legislature which would be uniform throughout the State?"

Fourthly, in a time when the public is crying for attention to, and disposition of, the backlog of untried cases in our trial courts, common sense would seem to dictate that the legislature, not the courts, establish the standards involved in the operation of motor vehicles.

Turning, however, to the more legalistic approach, Article 4, Section 1 of the Constitution of 1963 provides:

The legislative power of the State of Michigan is vested in a senate and a house of representatives.

"Legislative power" is authority to make, alter, amend, and repeal laws. Harsha v City of Detroit, 261 Mich 586 (1933). The legislature is the repository of all legislative power subject only to restrictions imposed by state or federal constitutions. Oakland County Taxpayers' League v Board of Supervisors of Oakland County, 355 Mich 305 (1959).

Legislative power may not be delegated. 1 Cooley, Constitutional Limitations (6th Ed.) p. 137; King v Concordia Fire Insurance Co., 140 Mich 258; Chemical Bank & Trust Co. v. County of Oakland, 264 Mich 684 (1933); O'Brien v State Highway Commissioner, 375 Mich 545 (1965). While certain delegations of power to be exercised in accordance with guidelines established by the legislature have been upheld, and while certain delegations of power as to the execution of the law have been upheld, these are to be distinguished from an attempted delegation of the power to make the law. This Court concludes that it is being called upon to make law when, after determining the standards to be deficient (in relation to pollution arising from the use of motor vehicles) it is then to "direct the adoption of a standard approved and specified by the court."

For the foregoing reasons the Court concludes that this Act, so far as it pertains to pollution arising from the operation of motor vehicles is unconstitutional. An order may enter accordingly.

1 ELR 20227 | Environmental Law Reporter | copyright © 1971 | All rights reserved