Tri-Cities Environmental Action Council, Inc. v. A. Reenders Sons, Inc.

No. 2737 (Mich. Cir. Ct. May 6, 1974)

In a suit to block defendant developers and the City of Grand Haven from planned construction of a city street and a water pipeline through a duneland nature preserve, the court denies defendant's motion for summary judgment and holds that the Michigan Environmental Protection Act of 1970 is neither unconstitutionally vague nor an impermissible delegation of legislative authority to the judiciary. The court finds that the Act follows the language of the Michigan Constitution and is an reasonably precise as the subject matter requires or permits. In addition, the court rules that the statute is a permissible delegation of power in that it does not confer upon the judiciary arbitrary authority to grant or refuse relief but rather requires the courts to make decisions concerning matters traditionally within their jurisdiction over nuisances, riparian rights, and alleged violations of the public trust in the state's natural resources.

Counsel for Plaintiff Central Michigan University
J. David Kerr
205 N. Hall Street
Mount Pleasant, Mich. 49959

Counsel for Plaintiffs Tri-Cities Environmental Action Council, Inc. et al.
Robert H. Gillette
Wheeler, Upham, Bryant & Uhl
620 Old Kent Building
Grand Rapids, Mich. 49502

Counsel for Defendants
R. Neal Stanton
Scholten & Fant
Security First Bank and Trust Co. Building
Grand Haven, Mich. 49417

[4 ELR 20553]

Miles, J.

Plaintiff, Central Michigan University is the record owner of sixty acres of unique duneland which is being held and preserved in its natural state by the University pursuant to a deed from the plaintiff, the Nature Conservancy. Plaintiffs allege that this duneland nature preserve and the vegetation, wildlife and ponds thereon are a valuable and unique natural resource. Plaintiffs further allege that Central Michigan University holds the property to preserve for future generations the beauty of this unique natural ecological system and to provide a living outdoor laboratory for education and research.

Defendant, the City of Grand Haven, and the other corporate and individual defendants, all of whom are private developers, propose to construct a city street through the middle of the Central Michigan University duneland preserve in order to provide access to a proposed plat being developed by the individual and corporate defendants herein for their personal profit. Additionally, defendant, the City of Grand Haven, proposes to construct a water pipeline across the duneland preserve.

Plaintiffs have brought this action under the provisions of the Michigan Environmental Protection Act of 1970, MCLA § 691.1202, MSA 14.529 (202). Defendants have alternatively attacked the constitutionality of the Environmental Protection Act of 1970 on the grounds, (a) that it is void for vagueness, and (b) represents an unconstitutional delegation of legislative power to the judiciary.

THE STATE CONSTITUTIONAL PROVISION

The Michigan Constitution, Article 4, Section 52 provides:

"The conservation and development of the natural resources of the State are hereby declared to be of paramount, public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the State from pollution, impairment and destruction."

THE LEGISLATIVE ACT

Following the constitutional mandate that "the legislature shall provide for the protection of the air, water and other natural resources . . ." the legislature enacted the Environmental Protection Act of 1970 MCLA § 691.1201 et seq., MSA § 14.529(201) et seq. The Act provides private individuals and other legal entities as well as public bodies with standing to bring actions for declaratory and equitable relief to protect natural resources (MCLA § 691.1202 [1]). Secondly, the act establishes an obligation upon both public agencies and private citizens to prevent or minimize damage to natural resources which has been caused or is likely to be caused by their activities (MCLA § 691.1203). Thirdly, the act grants to the Circuit Courts of the State of Michigan the power to grant temporary and permanent equitable relief or to impose such conditions upon the defendant's activities as has been shown by the evidence presented [4 ELR 20554] by plaintiff to be required to protect the air, water and natural resources or the public trust therein from pollution, impairment or destruction (MCLA § 691.1204).

Importantly, the Act is not a criminal act and imposes no criminal penalties or sanctions for violation of it. Further, it does not provide for an award of civil, monetary damages but only for equitable relief after a full and complete judicial hearing of all the facts.

A Presumption of Constitutionality

One who challenges the constitutional validity of a law carries the burden of proof.Further, every reasonable presumption must be indulged in favor of the validity of an act. These concepts have been stated as follows:

"Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity." (County of Gratiot v. Federspiel, 312 Mich. 128 (1945).

(See generally MLP Constitutional Law §§ 49-50).

II.

EPA CONTAINS STANDARDS AS REASONABLY PRECISE AS THE SUBJECT MATTER PERMITS AND THE LEGISLATURE HAS PROMULGATED A VALID LEGAL STANDARD TO BE APPLIED BY THE COURT.

Any person who wishes to determine whether his proposed conduct would be actionable under the Environmental Protection Act would necessarily have to refer to Section 3 of the Act which provides:

"Sec. 3(1) When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendants' conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the State's paramount concern for the protection of its natural resources from pollution, impairment or destruction."

Thus, a person's activities are not actionable if they have not or are likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein. Secondly, if in fact such pollution, impairment or destruction would result from the person's proposed action, he must then determine whether there is a "feasible and prudent alternative" to such action which would eliminate the anticipated environmental damage. If such an alternative exists, he must take it. Thirdly, if there is no such alternative, he must realize that the State in its Constitution and in the Environmental Protection Act has declared the protection of its natural resources to be of "paramount" public concern and interest, and he may only proceed if the anticipated pollution, impairment or destruction of natural resources which will be caused by his activities is "consistent with the promotion of the public health, safety and welfare" in light of the State's expressed concern for the protection of its natural resources. Therefore, while the scope of the Environmental Protection Act is broad, its requirements are sufficiently clear and unambiguous.

A. THE CONCEPT IN MICHIGAN LAW

Pollution and the destruction of a natural resource is a matter of demonstrable fact that has a well-established place and meaning in the substantive law of Michigan. The original statute creating the predecessor to the Michigan Department of Natural Resources, for example, provides: "The department of conservation shall . . . prevent and guard against the pollution of lakes and streams within the state." MCL 299.3, as amended. The term "pollution" appears and is defined in the most important and widely used natural resources management statutes in the State of Michigan (e.g., the Water Resources Commission Act, MCL 323.2, 323.5, 323.6; the Air Pollution Act, MCL 336.12). Similarly, restrictions on "impairment" of "the public trust in the waters" of the state is a standard provision of protective resource legislation in the State of Michigan (e.g., Great Lakes Submerged Lands Act, MCL 322.703; the Inland Lakes and Streams Act, MCL 281.741, 281.743), as are provisions to prevent the "destruction" of the natural resources of the state (Department of Conservation Act, supra, MCL 299.2, 299.39).

In addition to the above references to Section 2(1) of the EPA, drawn from and given meaning by other natural resource legislation of the State of Michigan, the EPA gives direction for the decision of cases in Section 3(1), wherein it is provided that a defense to an EPA suit is provided if it can be shown "that there is no feasible and prudent alternative to defendant's conduct." Far from leaving the courts with a "shell" statute, the Michigan legislature, by setting out the feasible alternative defense, has guided the courts to their own venerable tradition of adjudication. Courts have long exercised broad power in nuisance cases.¹

Analogy to traditional judicial activity in public nuisance cases should set at rest any concern that EPA, by authorizing the court in Section 2(2) to "direct adoption of a standard approved and specified by the court," would in some sense involve the courts in unrestricted rule making. As in any adjudication, in an EPA case the court "finds" (Section 2(2) (b)) the facts in the case before it, and "direct[s]" (id) a specific result to the parties before it who are bound by its decision. This is precisely what the Court did in Attorney General v. Grand Rapids, 175 Mich 503, specifying that the legally required and appropriate "standard" for the case before it was construction of a septic tank. This is also what the EPA contemplates; if an agency or municipality fixed a rule or ordinance allowing direct drainage into a stream, and the court found that standard insufficient to guard against pollution, it could find the standard deficient and order a septic tank, or some other device. Likewise, if the city and/or defendants Reenders are about to destroy a natural resource, then this court may make that factual determination and require that such activity be stopped.

The established uses in Michigan law, as well as in federal law, of the language that provides the substantive heart of the EPA brings the EPA clearly within the test of the Michigan Supreme Court that a statute is valid if it employs terms of established use and meaning. G.F. Redmons & Co. v. Michigan Sec. Comm'n, 222 Mich 699 (1923). Moreover, the presence of a panopoly of other statute law in Michigan utilizing and giving specific content to the terminology utilized in the EPA, such as those cited above, brings the EPA within the ruling laid down in Fowler v. Board of Registration in Chiropody, 374 Mich 254 (1965), in which the Supreme Court found that the detailed provisions of other correlating statutes infused the statute in question with sufficient points of reference in legislative policy to meet all constitutional objections.

Beyond the analytical coordination of commonly used statutory phrases and terms, the principal operative words of the EPA in Section 2(1) are taken directly from the State of Michigan Constitution, Art. IV, Sec 52, which states that the legislature shall provide for "the protection of the air, water and other natural resources from pollution, impairment and destruction." The language of the Michigan Constitution is broad and far-reaching, and the EPA is an implementation of the constitutional provision. To implement the full reach of the constitutional mandate, the Michigan legislature has understandably tracked the language of the Constitution - language that as the preceding paragraphs indicate, is itself drawn from [4 ELR 20555] traditional usages in Michigan statutory law. Thus, the statute uses language "as reasonably precise as the subject matter requires or permits" Osius v. St. Clair Shores, 344 Mich 693, 698 (1956), to achieve the legislative goal of implementing Article IV, Sec 52 of the Michigan Constitution. Far from the EPA being "palpably unconstitutional" as CAC would have the Court determine, it doesn't seem possible to seriously contend that the legislature, in adopting the language of the Constitution, can be said to have acted unconstitutionally.

To achieve the legislative purpose of providing an integrated approach to dealing with the whole range of environmental problems - from air, land and water pollution and destruction to pesticides, game management and fishing the legislature must necessarily speak in broad terms. Creating a state wide and embracing environmental policy is not to be confused with the drawing of a detailed building, zoning or tax code. Thus laws like the Water Resources and Air Pollution Acts themselves define pollution very broadly as, for example, the "discharge (of) any substance which is or may become injurious to the public health, safety and/or welfare; or . . . to domestic, commercial, industrial, agricultural, recreational or other uses . . . to livestock, wild animals, birds, fish, aquatic life or plants . . . fish and game." (MCL 323.6(a). See also the National Environmental Policy Act, 42 USC 4321 et seq.

Within the legitimate goal of developing an environmental policy for the State of Michigan, the legislature has spoken as precisely as the subject matter permits.²

The goal the Michigan legislature sought to achieve, and the detail in statutory language appropriate to that goal, is thus the landmark to which this Court looks. The EPA is a legislative effort to create a charter of environmental rights for the citizens of the State of Michigan. We cannot remove that charter with hypothetical situations which do not relate to any of the complex factual matters with which a court will be confronted by litigants utilizing the EPA.³ The Michigan Environmental Protection Act has been utilized by the citizens of the State of Michigan, and governmental units, in presenting numerous cases to the Courts of the State of Michigan since its enactment.⁴

B. FEDERALLY DEVELOPED CONCEPT.

A number of federal statutes incorporate the precise "feasible and prudent alternative" language of the EAP. The Airport and Airways Development Act, 49 USC 1716(c) (4), provides that no airport development project shall be authorized which adversely affects the environment unless there is no "feasible and prudent alternative" and all possible steps have been taken to minimize adverse affects. Virtually identical provisions appear in the Federal Aid Highway Act, 23 USC 138, and the Department of Transportation Act, 49 USC 1653(f). The Transportation Act prohibiting the use of parkland for highways "unless there is no feasible and prudent alternative to the use of such land," was before the United States Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 US 402 (1971). The court held that this language provided a "clear and specific directive" and that there was therefore "law to apply" upon which the Court could determine compliance with this provision of the law.

In Boyce Motor Lines v. U.S., 342 U.S. 337 (1952), the Supreme Court held:

But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions." (P 340)

Similarly, in McAlpine v. Reese, 309 F. Supp. 139 (1970), Judge Talbot Smith held in reviewing a statute which prohibited" . . . disturbance or improper diversion by which the peace, quietude or good order of any public, private, or parochial school is disturbed." that the statute was not unconstitutionally vague. He held in reviewing the ordinance:

"It prescribes objectionable conduct with all of the clarity, the precision, and the specificity of whichthe forbidden conduct is capable. It does not spell out the infinite ways in which the quietude of a place of learning may be disrupted, its students diverted, or its teachers turned from teaching to pacification or combat. It need not." (P 140)⁵

C. HOLDING

The court concludes that the EPA is founded upon the Constitution of the State of Michigan as implemented by the legislature [4 ELR 20556] and the statute is not so vague as to deny the defendant due process of law.

III

THE MICHIGAN ENVIRONMENTAL PROTECTION ACT OF 1970 IS NOT AN UNCONSTITUTIONAL ATTEMPT TO DELEGATE LEGISLATIVE AUTHORITY TO THE JUDICIARY

The essence of the unlawful delegation doctrine as it has been developed by the Michigan Supreme Court, is that the legislature may not confer on an official body "arbitrary power to grant or refuse (relief) according to its whim or caprice." Hoyt Bros. Inc. v. City of Grand Rapids, 260 Mich 447, 451-452 (1932). The cases that Courts have found to run afoul of that prohibition are those in which the official was told little more than to do what he thought ought to be done. Thus, in Osius v. St. Claire Shores, 344 Mich 693 (1956), the Court struck down an ordinance which said simply that certain uses could be made of property "only when permitted by the Board of Appeals . . ." It was this empty phrase that led the Court to conclude that the Board was being authorized to act wholly at its own whim.⁶

The Environmental Protection Act, in sharp contrast, requires a complete judicial hearing into the facts of the matter brought before the Court and a specific finding based upon those facts that the conduct of the defendant "has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein." (MCLA § 691.1203). The plaintiff must prove his case by preponderance of the evidence as in any other civil case. The defendant is further given the opportunity to show "by way of an affirmative defense that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction." (MCLA § 691.1203). Therefore it is only after a complete hearing and specific findings by the court that the Court may grant relief.

The Court is authorized, upon a full hearing, to "grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment, or destruction." (MCLA § 691.1204).

That the legislature may empower the Courts to grant equitable relief after a full investigation into the facts of the matter is a principle that has been upheld time and again by the Courts. In Tribbett v. Village of Marcellus, 294 Mich 607 (1940), the Michigan Supreme Court held:

"Counsel for the village of Marcellus maintains that the act is unconstitutional because the statute provides that the circuit judge may in his discretion deny a petition for disconnection where, although the petitioner has met the qualifications set forth in the act, it would be inequitable to grant the same. It is insisted that reposing such discretion in the trial court results in an unconstitutional delegation of legislative power to the court. While the legislature cannot delegate its power to make a law, nevertheless it can enact a law to delegate a power to determine a fact or a state of things upon which the application of the law depends. Field v. Clark, 143 U.S. 649 (12 Sup. Ct. 495). Where it is difficult or impracticable to lay down a definite, comprehensive rule for the application of a statute, the legislature may vest discretionary power in courts or public officials for the determination of whether the law applies in a particular instance. The question of the limits of such discretionary power often occasions uncertainty; and, as was said by Chief Justice Marshall, 'the precise boundary of this power is a subject of delicate and difficult inquiry.' See Wayman v. Southard, 10 Wheat (23 U.S.) 1, 46. It is true, as contended by counsel for the village of Marcellus, that the act in question delegates to the circuit court discretionary powers with reference to the application of the statute. But it is not an absolute discretion but depends upon a judicial determination that the granting of a petition for disconnection would be inequitable.Such a finding rests upon the facts and circumstances to each case; and such a conclusion rests not upon an arbitrary conclusion of the court but upon well-established rules of equity jurisprudence. Under these circumstances, the delegation of power to ascertain a state of facts under which the statute is applicable is not unconstitutional. In re Brewster Street Housing Site, 291 Mich. 313. (P. 615-616). See also Secord v. Village of Leonard, 307 Mich. 134 (1943).

Similarly in Johnson v. Kramer Freight Lines, 357 Mich. 254 (1959) the Court stated:

"Judicial discretion upon good cause shown is a standard in itself sufficient to satisfy all constitutional requirements." (P. 257)⁷

Thus the fundamental issue that the Supreme Court has emphasized in the unlawful delegation cases - uncontrolled official lawmaking by fiat without basis or supportive records - is simply not presented by The Environmental Protection Act which creates a judicial cause of action subject to all the usual protections and procedures of a civil action.

The Constitution, Article IV, Section 52, mandated that the legislature "provide" for protection of natural resources. To implement the full reach of the constitutional mandate the legislature has understandably and wisely used the language of the Constitution.

That the Environmental Protection Act does not constitute an unconstitutional delegation of legislature power to the judiciary is clear to this court. The judicial functions which the Court is called on to perform are functions which it has been carrying out for hundreds of years in equity cases involving nuisance, judicial determination and regulation of riparian rights, violations of the public trust in the natural resources of this state and others.

CONCLUSION

The Environmental Protection Act is neither unconstitutionally vague, nor does it amount to a delegation of legislative power. The defendant's Motion for Summary Judgment is denied.

1. The leading public nuisance case in Michigan, Attorney General ex rel. Township of Wyoming v. City of Grand Rapids, 175 Mich. 503, 543 (1913), a water pollution case, noted that the defendant city was dumping wastes that were inflicting injury. The court held for the plaintiff on the express ground that:

"The construction of a septic tank . . . by the defendants within a reasonable time is feasible and practible . . ." (emphasis added)

2. The law digests and reports are replete with cases in which the courts recognize that in formulating effective environmental statutes, the legislature must be given the opportunity to respond to the range and variety of the problems before it. In Houston Compressed Steel Co. v. Texas, 456 SW.2d 768, 744 (Ct. App. 1970), the Court said:

"The science of air pollution is new and inexact, and these standards are difficult to devise, but if they are to be effective, they must be broad. If they are too precise, they will provide easy escape for those who wish to circumvent the law."

Similarly, a Pennsylvania court upheld a statute prohibiting pollution "which unreasonably interferes with the comfortable enjoyment of life." Air Pollution Comm. v. Coated Materials, 1 Env. Rept'r. 1444, 1447 Ct. Comm. Pleas, 1970, observing that:

"The present contention that the definition of air pollution is uncertain . . . cannot stand. The language employed in the statute is equivalent to the definition of a nuisance which is certainly firmly established in the law."

In building a statutory cause of action upon a nuisance model, the legislature thus appropriately recognizes that it cannot provide a "rigid rule to be applied in all instances. It is elastic. It undertakes to require only that which is fair and reasonable under all circumstances." Stevens v. Rockport Granite Co., 216 Mass. 486, 488, 104 NE.2d 371, 373 (1914).

3. In this respect, it is appropriate to recall the words of Justice Charles Evans Hughes in speaking of the Sherman Antitrust Act, a law that simply said "Every contract, combination . . . or conspiracy in restraint of trade . . . is declared to be illegal" Justice Hughes observed in Appalachian Coals, Inc. v. United States, 288 US 344, 359-360 (1933):

"As a charter of freedom, the Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions. It does not go into detailed definitions which might either work injury to legitimate enterprise or through particularization defeat its purposes by providing loopholes for escape."

4. Reference is made to an exhaustive article on the EPA by Sax and Connor, entitled "Michigan Environmental Protection Act of 1970: A Progress Report," appearing in 70 Mich. L. Rev. 1003 (May, 1972), wherein the authors review nearly every case filed under the EPA and the disposition as of publication date of those cases. The authors state at page 1005:

"Beyond giving private citizens the right to initiate or participate in environmental proceedings, the EPA is a significant departure in another way. It enlarges the role of courts because it permits a plaintiff to assert that his rights 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."

The cases discussed in the article of Sax and Connor, supra, show that the courts have been able to draw upon the well established concepts and standards in other statutes governing environmental quality, and to integrate those concepts into the interpretation of the EPA cases.

5. The United States Supreme Court in Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1908) dealt with a price fixing statute prohibiting acts which "tend" to accomplish their prohibited results. The Court held:

"Take the act of 1903, which denounces acts which 'tend' to bring about the prohibited results. It is not uncommon in criminal law to punish not only a completed act, but also acts which attempt to bring about the prohibited results. In United States v. Knight, 156 U.S. 1, this court said: 'Again, all the authorities agree that in order to vitiate a contract or combination it is not essential that its result be a complete monopoly. It is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from a free competition.' . . . And in Northern Securities Case, 193 U.S. 197, while the Sherman Act directly condemned conspiracies and combinations in restraint of trade or monopolizing or attempting to monopolize the same, this court said (page 332): 'That to vitiate a combination, such as the act of Congress condemns it need not be shown that the combination in fact results, or will result, in a total suppression of trade, or in a complete monopoly, but it is only essential to show that by its necessary operation it tends to restrain interstate or international trade or commerce, or tends to create a monoply in such trade or commerce, and to deprive the public of the advantages that flow from free competition.'" (Pp. 109-110) (emphasis added).

6. The State of Michigan is well known as one of the most rigorous jurisdictions in the United States in applying the delegation doctrine. Recent decisions of the Michigan Supreme Court, such as City of Saginaw v. Budd, 381 Mich. 173 (1968), have been sharply criticized both by local commentators and by leading national authorities on administrative law. See Mogk and Barkey, "Real Property,", 16 Wayne L. Rev. 835, 836 (1970) and Davis, Administrative Law Treatise, 1970 Supp. § 2.11 at 70. Professor Davis says that reform is badly needed and urges that the solution is "to move toward a system of judicial protection against unnecessary and uncontrolled discretionary power . . . the exclusive focus on statutory standards should be shifted to an emphasis more on safeguards." Id at 52. Among the "safeguards" he advocates is adequate judicial review of wide-open administrative discretion, noting that judicial review provides traditionally secure safeguards against captious administrative action. id at 67.

7. It is essential to note a fundamental structural difference between the unlawful delegation cases and an EPA case. In cases of unlawful delegation, an administrative body or official simply issued a dictate. In an EPA case, a decision can issue only following a judicial proceeding in which all parties present evidence and engage in direct and cross-examination. The court is then bound to issue a decision based upon the preponderence of the evidence presented by the parties.Not only is this the requirement of every judicial proceeding, but the EPA itself codifies the rules of burden of proof and weight of the evidence in Section 3(1) of the EPA. Any decision is subject to judicial appellate review which must be supported by the evidence presented.