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

6 ELR 50067 | Environmental Law Reporter | copyright © 1976 | All rights reserved

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

Jeffrey K. Haynes 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.

[6 ELR 50067]

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 Professor 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 [6 ELR 50068] 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.

The Act has become both a symbol and an accessible tool. MEPA's import as a symbol is illustrated by the recent highly-publicized fight over amendments that would have weakened the Act, in which a seemingly dormant network of environmental organizations emerged to show the political vitality of the public's commitment to MEPA.5 This point is also documented by the enactment of laws similar to MEPA in eight other states.6 The accessibility of MEPA is demonstrated by its application to increasingly diverse environmental threats by lawyers who turn to MEPA as a vehicle for resolving environmental controversies expeditiously, and by administrators who are now beginning to employ MEPA's substantive precepts in their usual regulatory functions. It is therefore perplexing and disappointing that national environmental and public interest organizations have not taken note of the Act's unusually broad remedies. To date, not one MEPA case has been filed by the litigation arms of these organizations. There are several possible explanations for this phenomenon. It may be that the concentration of their offices on the east and west coasts precludes much work in the nation's interior. It may also be that the natural resources of Michigan are not viewed as dramatically in need of protection by national groups. Nevertheless, the lack of legally ambitious plaintiffs has contributed to the somewhat easy-going pace of MEPA's evolution.

The Michigan Environmental Protection Act is an unusually simple, direct statute. It authorizes any person to bring suit against any other legal entity, either public or private, for declaratory or equitable relief to protect the "air, water and other natural resources and the public trust therein from pollution, impairment or destruction."7 MEPA thus implements Michigan's constitutional requirement for environmental protection:

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.8

If a plaintiff can initially show that such harm has occurred or is likely to occur, the defendant must either rebut the plaintiff's evidence or affirmatively demonstrate 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 [6 ELR 50069] welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction."9 In granting appropriate equitable relief, the court is empowered to adjudicate the validity of any applicable pollution standard. The court may also remit the parties to any administrative proceedings that can determine the legality of the defendant's conduct, and can impose appropriate conditions on the defendant in order to protect the environmental rights secured by the Act during the pendency of these administrative proceedings.10 Although MEPA is not entirely clear on this point, any person may permissively intervene in administrative proceedings or judicial review thereof where such actions affect the Act's environmental rights.11 Costs may be apportioned in the interests of justice;12 however, MEPA does not provide for awards of attorneys' fees. A $500.00 cash bond can be required of an insolvent plaintiff.13

MEPA stands unique among environmental statutes, since it does not erect the characteristically elaborate regulatory or procedural structures that often camouflage as much environmental harm as they prevent. Unlike the National Environmental Policy Act (NEPA),14 MEPA does not require preparation of an environmental impact statement prior to administrative action, although it is within judicial discretion under MEPA to call for an administrative analysis of environmental impacts. MEPA and NEPA are alike to the extent that they force government agencies to scrutinize programs that may adversely affect the environment. The similarily ends there, though. While NEPA attempts to protect the environment by changing how government thinks, MEPA seeks to protect the environment by authorizing challenges to the substantive results and programs arrived at through any kind of governmental decision making.

Nor does MEPA countenance the usual notice-hearing-permit procedure found in statutes such as the Federal Water Pollution Control Act Amendments of 1972.15 Under such elaborate regulatory schemes, potential polluters are not required to consider whether their conduct pollutes: the administrative agency does all the thinking by setting standards. Thus what ought to be a cost of doing business — formulating standards to insure that an activity does not degrade the environment — is transferred to the public. MEPA turns the tables to internalize these costs. By introducing substantive review of a polluter's activities, within the range of feasible and prudent alternatives, MEPA seeks to reduce the externalities of environmentally-damaging conduct.

II. A Brief Statistical Summary of the Cases

MEPA went into effect on October 1, 1970. During the five and one-half years between its enactment and March 1, 1976, MEPA was invoked in 119 cases or administrative proceedings.16 The frequency of cases being filed has recently declined from slightly above to slightly below an average of two per month. A probable explanation for the reduced activity under MEPA is the impact of the economic recession on residential construction projects, a major source of MEPA cases.17

The most striking result of analyzing the case data is an empirical refutation of the argument that laws such as MEPA invariably clog the courts with numerous frivolous lawsuits. Measured over the life of the Act, the 119 cases filed under MEPA constitute only 0.02 percent of the more than 600,000 civil cases initiated in Michigan circuit courts over the same period.18

Case venues continue to be distributed widely throughout the state; cases have been filed in 39 of Michigan's 83 counties. The most frequent venues are Wayne (containing Detroit), Ingham (site of the state capital), and Washtenaw counties.19 Nine counties have had three or more cases filed. In addition, the Act has been raised in six administrative agency proceedings.20 [6 ELR 50070] Four cases have been filed in federal courts in Michigan.21 MEPA has also been asserted by a state agency as a basis for relief in a federal district court in Minnesota, challenging pollution of the Michigan waters of Lake Superior by the Reserve Mining Company.22

Most MEPA cases to date have involved industrial air pollution, water pollution treatment systems, and homesite construction.23 The statute's breadth has fostered a wide range of cases, however, as plaintiffs turn of MEPA to fill substantive gaps in environmental law, in areas such as toxic substances control, sand dune mining, wetlands protection, park management, and leasing of Great Lakes bottomlands.24

Established, state-wide environmental groups have made only modest use of MEPA in court suits. A recent trend indictes, however, that such organizations are attempting to exercise early influence on agencies' environmental decision making by using MEPA to intervene in administrative agency proceedings.25 Local and ad hoc environmental groups, on the other land, have filed over two dozen suits, and have won over half of those that are complete. Public officials have often used the Act with consistent success, having filed 45 cases of which 30 out of the 33 completed cases were won.26 Twenty-two cases have involved class plaintiffs, usually challenging land development projects or industrial air pollution. Class defendants have been named in two cases.

Eighty-six cases have been completed. Of these, 47 have been resolved in favor of the plaintiffs.Defendants have won 28 cases, and 11 cases were not pursued or dropped by plaintiffs after being filed.27 It is significant that in no case has a decision for the plaintiff in the trial court been overturned on appeal.

Most cases have been resolved at the trial court28 in a little over half a year. The mean length of cases in the trial court is eleven months. Including appeals, the mean length of completed cases is almost one year, partially reflecting a few extremely long cases. The median length is ten months, and the range is from one to 46 months.29

Twenty cases have gone to trial on the merits, half of which ultimately have been won by the plaintiffs. The track record for cases fully tried on their merits is disappointing, especially in view of the substantial resources that plaintiffs must expend in bringing a case to trial. Of course, it is sometimes difficult to state unequivocally that the environment has not gained an added measure of protection even though the strict ruling after trial was in favor of the defendant. Nevertheless, the win-loss numbers of MEPA trials do suggest that the pressure brought by litigation may be as instrumental as the environmental merits of the case in obtaining a plaintiff's victory.

In contrast to the normal three and one-half year wait for trials in most Michigan civil cases,30 MEPA cases are quickly brought to trial, usually within six months of filing. Experience has shown that judges tolerate few delays in hearing MEPA trials, usually pressing the parties for early solutions.31 Trials have not unduly delayed ultimate disposition of cases, adding, on the average, only one month to their duration.

[6 ELR 50071]

III. Substantive Interpretation of MEPA

During the first three years after its enactment, MEPA was interpreted primarily by circuit courts, the trial courts of general jurisdiction in Michigan. This case-by-case process grew into a considerable body of law detailing MEPA's relation to the areas of eminent domain32 and other statutory authority,33 but the lack of appellate direction occasionally generated conflicts between circuit courts.34 In general, when the merits of controversies were fully tried, acceptance of trial court decisions obviated appellate review. Of course, MEPA's elimination of procedural problems — by its broad standing, simplified jurisdiction, and accessible intervention provisions — averts many possible areas for pursuing an appeal.

In the past two years, however, significant supreme court decisions have greatly strengthened MEPA's substantive applicability and have delineated methods by which circuit court decisions will properly guarantee the rights embodied in the Act. In addition, several lower court decisions have explored the extent to which MEPA fills statutory gaps between regulatory laws and incorporates substantive law into existing statutory schemes.

A. Constitutionality of MEPA

In January 1975, the Michigan Supreme Court effectively foreclosed future constitutional challenges to the Act. Ray v. Mason County Drain Commissioner35 was a property-owner group's challenge to a stream channelization project that would have destroyed nearby wetlands and wildlife habitat by lowering the water table. On appeal from the circuit court's decision for the defendant, the supreme court unanimously vacated and remanded, settling several controversial constitutional issues and questions of interpretation.

The most important aspect of the Ray decision concerns MEPA's constitutionality. Although the decision's immediate impact was on the adequacy of the circuit court's findings of fact under the Act, the court necessarily had to analyze the purpose behind the legislature's enactment of MEPA — an endeavor intimately connected to the Act's constitutionality. MEPA's establishment of environmental rights that are judicially enforceable, the court said, does not delegate legislative power. Moreover, the rights are not without specific content: "Rather the Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality."36 The court disposed of the challenge that MEPA is unconstitutionally vague in a footnote:

While the language of the statute paints the standard for environmental quality with a rather broad stroke of the brush, the language used is neither illusive nor vague. "Pollution," "impairment" and "destruction" are taken directly from the constitutional provision which sets forth this state's commitment to preserve the quality of our environment. In addition these and other terms used in establishing the standard have acquired meaning in Michigan jurisprudence. The development of a common law of environmental quality under [MEPA] is no different from the development of the common law in other areas such as nuisance or torts in general, and we see no valid reason to block the evolution of this new area of common law.37

In view of this language, future challenges to MEPA's constitutionality on grounds of vagueness and delegation of powers have little hope of success.38 The Ray decision does, however, leave open the significant issue of MEPA's breadth in relation to legitimate regulation of private property to protect the environment. This issue will be raised as public agencies, lacking comprehensive land-use regulatory powers,39 seek to enforce environmentally-sound private land practices.40

[6 ELR 50072]

The second notable aspect of Ray is its affirmation of the substantive content of MEPA, which the court ruled, "imposes a duty on individuals and organizations both in the public and private sectors to prevent or minimize degradation of the environment which is caused or is likely to be caused by their activities."41 There are two aspects to this duty. First, MEPA's environmental standards are incorporated into every regulatory statute, such as the Highway Condemnation Act and the Drain Code, and must be affirmatively applied by the administrators of such laws.42 Second, once a plaintiff in a MEPA lawsuit demonstrates that a defendant's actions harm, or are likely to harm, the environment, the defendant carries a heavy burden of environmental justification.43 This burden requires a defendant to prove both that no feasible and prudent alternatives to his actions exist and that he is acting in the public interest.

In tandem with the burden of proof allocation issue, the aspect of Ray that may produce the most immediate and tangible result is the court's holding that circuit judges must make detailed findings of fact and law when deciding cases under MEPA. As the court stated:

The judicial development of a common law of environmental quality, as envisioned by the Legislature, can only take place if circuit court judges take care to set out with specificity the factual findings upon which they base their ultimate conclusions…. In the final analysis the very efficacy of [MEPA] will turn on how well circuit court judges meet their responsibility for giving vatality and meaning to the act through detailed findings of fact.44

The danger implied by the court is that the necessary breadth and openness of MEPA will diminish, if it is not specifically implemented by trial courts. General statutes like MEPA can succeed only through concrete application.45 Thus, detailed findings by the circuit courts under MEPA serve two functions. They demonstrate that judges are carrying out the procedural requirements of MEPA, and they insure that the general, substantive mandate of MEPA is not side-stepped by judges.

One circuit court decision presaged the constitutional discussion in Ray. In Tri-Cities Environmental Action Council, Inc. v. A. Reenders Sons, Inc.,46 the defendants claimed that MEPA was unconstitutionally void for vagueness and comprised an unconstitutional delegation of legislative power to the judiciary. In rejecting both claims, Circuit Judge Wendell A. Miles47 emphatically declared that MEPA is not so vague as to deny due process of law and that the courts' powers under the Act, far from being legislative in nature, have historically been exercised by the judiciary. After noting that the words "pollution," "impairment," and "destruction" have a long history of statutory usage in Michigan,48 Judge Miles held that MEPA cannot be declared [6 ELR 50073] vague when its terms track constitutional language.49 A final vagueness issue, one not reached by the supreme court in Ray, involves the "feasible and prudent alternative" language of § 3(1) of MEPA. To demonstrate the specificity of this provision, Judge Miles relied on the United States Supreme Court decision in Citizens to Preserve Overton Park v. Volpe,50 in which similar language in the Department of Transportation Act of 1966,51 created "law to apply" by the courts.

In addressing the delegation issue, Judge Miles initially noted that delegations of legislative power are struck down when they confer arbitrary power permitting capricious law enforcement. In contrast to such delegations, said the judge, MEPA grants parties the normal protections of any civil action. He emphasized that the factual findings the court must make under § 3 and the equitable relief that can be granted under § 4 have resided for centuries in courts' equitable powers in nuisance, riparian rights, and public trust cases. Such cases nearly always require the court to establish standards for and supervise the conduct of defendants.

Since the Ray decision, one circuit court opinion, like the Tri-Cities decision which antedated Ray, has emphatically upheld MEPA's constitutionality. In Superior Public Rights, Inc. v. Department of Natural Resources, Judge Reisig rejected the defendant's claim that MEPA unconstitutionally delegates legislative power to the judiciary:

The Environmental Protection Act is not violative of the concept of separation of powers, nor is judicial intervention into the environmental arena such a violation; nor is the creation of new environmental standards by the judiciary upon the rejection of standards heretofore established by the Legislature or by the DNR, a judicial assumption of power properly belonging to either the legislative or executive branches of government. No branch of government has a constitutional stranglehold upon the domain of the public trust and environmental protection. All have responsibilities thereunder. At times conflicts and frictions may arise which may mandate, alternatively, either sound exercise of judicial restraint or timely intervention of constitutional judicial authority.52

B. MEPA as Supplementary Substantive Law

One of the most vexing problems in the environmental protection field involves creating solutions to environmental problems that do not fall within the established jurisdiction of any administrative agency. The problem has two aspects. First, administrators tend to regard as unsolvable those environmental problems which ostensibly lie outside their domain.53 Second, new legislation enacted to grant authority to administrators to solve the problem tends to exacerbate an already fragmented system of environmental management.54 Given the current velocity of technological development, however, it may be asking too much of a statutorily-limited agency to meet every new threat to the environment. It is thus natural and important that MEPA has come to fill this gap. MEPA's interstitial nature has been noted by the Michigan Supreme Court in Michigan State Highway Commission v. Vanderkloot.

It is most important to note that [MEPA] does not … merely provide a separate procedural route for protection of environmental quality, it also is a source of supplementary substantive environmental law.55

In response to continued calls for "gap-filler" legislation to solve emerging environmental problems, it is useful to consider the way in which MEPA has been employed to attack and solve unique threats to the environment.

1. Filling the Gaps in Existing Statutory Schemes

In Lincoln Township v. Manley Brothers,56 the plaintiff townships' suit against a mining company and its owner initially alleged only that the defendant's sand mining operation in 96.8 acres in the two townships violated the plaintiffs' mineral removal ordinance. A MEPA count was added in an amended complaint, alleging that the unique dune area near the Kalamazoo Nature Center would also be destroyed by the sand mining operation. It is noteworthy that MEPA was the sole statutory remedy available to the plaintiffs, the defendants were not otherwise violating any applicable state law.

The trial took place over 12 days during May, July, and December, 1974.57 In an extensive opinion based [6 ELR 50074] solely on MEPA, the court enjoined the defendant from mining nearly two-thirds of its sand-bearing property. An exhaustive development plan for the remaining area prepared by the defendants and agreed to by the plaintiffs was attached to the judgment, describing permissible mining operations and future residential uses of the land. The court incorporated the development plan in its findings, one of which stated:58

There is no other reasonable, feasible and/or prudent alternative for use of said lands, remembering that Defendants have legal property rights therein, [and] that the development plan as described and limited in this Judgment which this Court finds is consistent with the promotion of the public health, safety and welfare, as set forth in [MEPA].

The court further ordered (1) the mineable lands to be subject to restrictions on vehicle access, (2) retention of a barrier dune, (3) revegetation of excavated property, (4) mining by hydraulic rather than vehicular means, (5) construction of a pedestrian walkway to prevent dune erosion, and (6) submission of quarterly written progress reports to the plaintiffs.59 The court retained jurisdiction pending completion of sand removal activities and reclamation under the developmentt plan.

Lincoln Township follows the pattern of other MEPA land use cases60 in which a compromise results from, in effect, extended negotiations between the parties with the judge acting as mediator. In reality, then, neither party is an intransigent as each tends to portray the other. In this setting, judges seem willing to issue and supervise comprehensive judgments like that in Lincoln Township.

Approximately 100 acres of the Lake Michigan sand dunes were protected by the suit in Lincoln Township. As observed in the opinion, however, over five percent of the dune land adjacent to the Lake Michigan shoreline from the tip of the Leelanau peninsula to the Indiana state line — over 3500 acres — is immediately subject to mining rights of sand extractors.61 Similar figures could no doubt be derived for the Michigan shorelines fronting the other Great Lakes. In this regard, controversy has recently flared over whether the Department of Natural Resources (DNR) has the legal tools to regulate sand, mining similar to that involved in Lincoln Township.62 It seems clear that the DNR could, with sufficient bureaucratic resolve,63 employ MEPA to control sand dune mining as effectively as did the plaintiffs in Lincoln Township. In such cases, considering the experience under MEPA, the lack of traditional regulatory permit-variance-order authority would not hinder DNR efforts,64 through either individual court suits or administrative rule making, to protect mineable lands generally.65

It is unrealistic to expect a legislature to predict the exact nature of every potential environmental or public health crisis. The breakneck pace of technology bombards the environment with increasing amounts of possibly hazardous substances, many of which have unknown or latent effects.66 The unavoidable gaps in statutory protection, however, can be filled through enactment of general statutes such as MEPA. In fact, the Michigan Supreme Court has noted that MEPA was enacted for the precise purpose of meeting unforeseen and dangerous threats to the environment:67

The act allows the court to fashion standards in the context of actual problems as they arise in individual cases and to take into consideration changes in technology which the Legislature at the time of the act's passage could not hope to foresee.

In this respect, it is instructive to analyze a recent MEPA case brought in response to such a public health crisis.

At some point in late 1973 or early 1974, an undetermined number of bags of chemical fire-retardant, poly-brominated biphenyl (PBB), was accidentally shipped [6 ELR 50075] to a Farm Bureau Services feed mixing plant in Battle Creek,68 where the chemical was inadvertantly mixed with various animal feeds having a similar appearance. When, in April 1974, the presence of the highly toxic chemical was discovered, the Department of Agriculture moved quickly to quarantine herds of cattle and large numbers of other livestock that had consumed the contaminated feed. Nevertheless, the problem assumed crisis proportions as a function of the possibility of consumption of contaminated food products and of pollution of water supplies from indiscriminate burials of animals throughout the state. Officials were left with the quarantined animals, which had to be immediately destroyed before possible clandestine market sales could take place in violation of the quarantine.

In response to the crisis, emergency legislation was hastily passed on July 2, 1974, solely to enable the Department of Agriculture to select a site and dispose of the contaminated livestock.69 State agriculture officials, having considered a dozen remote sites in the state for disposal of the animals, chose a portion of a state forest in Kalkaska County for the burial site. On July 3, approximately 80 head of cattle were buried there. Some of the Kalkaska county commissioners, hearing of the burial, went to the site to observe the operation.

The resulting suit, Board of Commissioners of Kalkaska County v. State,70 sought an injunction to prohibit any further burial operations. A temporary restraining order was granted on July 4. At the hearing on the preliminary injunction, held on July 9, the Department of Agriculture asserted that the alternatives to burial — rendering, incinerating, or slaughtering followed by cold storage — were not feasible. Nevertheless, Judge Daniel F. Walsh granted the preliminary injunction and gave the plaintiffs 30 days to prepare expert testimony for trial.71

At a twelve-hour hearing on the permanent injunction, held on August 21 in a courtroom overflowing with spectators, testimony was heard from one expert witness for the plaintiffs and six experts for the defendants. Visiting Circuit Judge Charles Wickens72 then orally lifted the preliminary injunction on the ground that the plaintiff had not shown that environmental harm would result from the burial of the contaminated cattle. The burial operation began again on August 28.

The Board of Commissioners case illustrates a primary purpose of MEPA: to insure that citizens retain at least one legal avenue to participate in environmental decision making.73 Because the burial was made on state forest land, local zoning ordinances were preempted by state law and could not be invoked by local plaintiffs to protect he health of local residents.74 MEPA was the sole relief available to the plaintiffs. The facts of Board of Commissioners suggested a hurried decision had been made by state administrators that conceivably could have had enormous impact at a local level. Yet no [6 ELR 50076] representatives of local interests took part in the decision.

MEPA may not be a substitute for a comprehensive toxic substances control act that would subject hazardous chemicals such as PBB's to exhaustive premarket testing. The complex social issues involved in such legislation might best be explored in the legislature rather than through individual court suits. Nevertheless, as interpreted by the supreme court in Ray, the DNR, or the Department of Agriculture, has the authority — indeed, has the duty — to protect the environment from toxic substances. This duty could be implemented through appropriate rule-making. At the very least, then, stop-gap protection under MEPA, as was attempted in Board of Commissioners, could provide the impetus for passage of more specific legislation.

2. Augmentation of Other Statutes

One of the most interesting developments in the growth of MEPA has been its effect on the general scheme of environmental management in addition to its impact on individual defendants. The principal function of MEPA, of course, is to grant ordinary citizens, through the judiciary, a voice in the protection of their environment. To implement this purpose, MEPA necessarily had to be constructed in general terms so that the scope of judicial review of environmentally harmful decisions was not limited to specific subject areas. Thus, MEPA was a novel departure from environmental regulatory statutes, which normally consist of a legislative command to an administrative agency to attack and control a particular threat, such as air or water pollution, shorelands degradation, or wilderness destruction.

The broad substantive scope of MEPA, transcending its citizen suit provisions, has now been recognized by the Michigan Supreme Court in Michigan State Highway Commission v. Vanderkloot.75 The court there faced the assertion that the Highway Condemnation Act76 violated the Michigan constitution's environmental protection provision77 by failing to include a specific directive to the highway department to consider the environmental effects of its construction activities. Rejecting this challenge, the court noted that, although the legislature was constitutionally required to enact legislation to protect the environment, it need not do so in each statute:

The responsive action of the Legislature can be in specific provisions in pertinent enactments or in the form of generally applicable legislation; in fact, the Legislature has acted in general legislation….

The chief legislative enactment currently fulfilling the Legislature's duty to protect our notural resources is the Environmental Protection Act of 1970….78

The implication of this holding is that the general environmental protection provisions of MEPA are incorporated into all other statutes. Otherwise, the legislature would be in derogation of its constitutional mandate.79

MEPA's incorporation into other statutes takes the form of the imposition of a duty on administrators of those statutes to take no environmentally adverse action unless no feasible and prudent alternative exists and the action conforms to the public interest in a sound environment. The discharge of this duty is reviewable under the Act. The court in Vanderkloot outlined the existence of this duty:

[MEPA] is designed to accomplish two distinct results:

(a) to provide a procedural cause of action for protection of Michigan's natural resources; and

(b) to prescribe the substantive environmental rights, duties and functions of subject entities.80

The concept of substantive environmental duties was subsequently affirmed in Ray v. Mason County Drain Commissioner.81 Therefore, in addition to normal statutory duties, administrators now must independently assess the environmental consequences of their actions. As the embodiment of the constitutional provision MEPA thus takes the place of an otherwise necessary environmental protection component in agency organic legislation.

Several cases illustrate the use of MEPA to incorporate environmental safeguards into agency decisions under other statutes. This protection is particularly important in eminent domain proceedings,82 such as Vanderkloot, in which the contest was over whether highway US-24 could be widened instead of rebuilt through the condemnees' wetland. Rather than strike down the Highway Condemnation Act for an unconstitutional failure to include environmental standards, as the condemnees argued, the court held that MEPA imposes substantive environmental protection duties on the Highway Commission in condemning particular tracts for any highway project:

[T]he Commission in exercising its discretion in taking one particular piece of property rather than another in effectuating its pertinent highway purpose must take into consideration that "there is no feasible and prudent alternative" choice if the taking of a particular piece of [6 ELR 50077] property involves environmental "pollution, impairment [or] destruction."83

Although noting that condemnation procedures are not affected by MEPA, the court injected hitherto unavailable environmental considerations into the scope of judicial review of condemnation proceedings:

We further hold that the substantive environmental duties placed on the Commission by [MEPA] are relevant to [the Highway Condemnation Act] MCLA 213.368; MSA 8.261(8) judicial review in that failure by the Commission to reasonably comply with those duties may be the basis for a finding of fraud or abuse of discretion.84

It should be noted that the holding in Vanderkloot is limited to tract necessity; project necessity, the decision whether or not an entire highway project is necessary for the public interest, was not discussed.85 Further, review for fraud or abuse of discretion is narrower than might be available under a separate action filed under MEPA, but the narrower standard apparently was sufficient for the condemnees in Vanderkloot, since subsequent negotiations between the parties convinced the Highway Department that US-24 could be widened instead of rerouted through the Vanderkloots' swamp. The subsequent supreme court decision in Ray, however, gives strong credence to the view that a broad scope of review, even of project necessity in highway condemnation proceedings, is mandated by MEPA.

In three recent cases, plaintiffs have sought judicial review under MEPA to inject environmental factors into decisions made under other regulatory statutes that lack, or provide only minimal, judicial review. The plaintiff in Superior Public Rights, Inc. v. DNR86 alleged that the DNR had violated its public trust duties to protect public uses of Lake Superior by not making detailed findings in granting an easement for the use of bottom lands for a coal unloading facility. The plaintiff sought to use MEPA to obtain de novo factual hearings in DNR decisions that grant such easements under the Great Lakes Submerged Lands Act,87 which contains no provision for judicial review. The defendants countered that administrative decisions under the Submerged Lands Act were subject to the substantial evidence test under the Administrative Procedures Act.88 Judge Reising held that "in the instance of an independent environmental action where administrative proceedings are properly brought into the ambit of that action, the Environmental Protection Act directs an independent, de novo, factual determination by the Court."89 To hold otherwise would be to subvert MEPA's primary purpose:

Although any given court may desire to give high credence to factual determinations made by an agency based upon the proven experience, competence, expertise and sensitivity of that agency's decision-making process, to rule that the reviewing court is bound by the administrative fact finding would be but to destroy one of the central thrusts and purposes of the [MEPA] — to watchdog the controlling governing agencies themselves in order to guarantee that they do not by inadvertence become the captives of the very entities that are seeking to control and/or fail to recognize, due to ingrained myopia, inertia and bureaucratic complacence, the very environmental dangers they were established to prevent.90

In Guthrie/v. Detroit Edison Co.,91 the plaintiffs seek to enjoin construction of a fly-ash disposal pit on the defendant's property adjoining a portion of the Lake Erie shore designated by the DNR as an "environmental area" under the Shorelands Protection and Management Act of 1970.92 Judicial review is provided for in the Shorelands Act, but only for a violation of administrative rules governing such designated areas, and can be sought only by the Water Resources Commission,93 an agency that may, by its traditional water-pollution related focus, be unfamiliar with the important land use capabilities of the Shorelands Act. The infusion of MEPA into the protective purposes of the Shorelands Act results in expanded judicial review, for the Commission and for parties such as the plaintiff in Guthrie, of an action affecting a land area that the legislature has declared to be of critical importance. In this context, Guthrie illustrates the ability of private citizens to supplement existing administrative authority, where the agency has not acted through lack of either initiative or resources.

Little Wolf Lake Property Owners Association v. [6 ELR 50078] Haase94 challenges the construction of a 78-lot real estate development that would have "funnel access" to a lake through only nine riparian lots. Because of its size, the proposed development was subject to the Subdivision Control Act of 1967,95 which requires township approval of regulated projects. The township defendant has unsuccessfully moved for summary judgment on the ground that it exercises no statutory duties under MEPA to consider environmental matters when approving plats under the Subdivision Control Act. Because of the small, but pervasive, environmental effects of individual subdivision projects, the application of MEPA considerations during the initial scrutiny of proposed developments may significantly ameliorate land use impacts throughout the state.96

Given the large corpus of regulatory statutes that focus on discrete portions of the environment, it can be expected that Vanderkloot, Superior Public Rights, Guthrie, and Little Wolf Lake will be applied to additional types of environmental management. For instance, administrative application of MEPA to waters subject to the Inland Lakes and Streams Act of 1972 is already occurring.97 But more important, MEPA may finally be used to prod agencies to take affirmative action under resource management statutes that otherwise give them unreviewable discretion to act in the public interest as they see fit.98

IV. The Public Plaintiff

One indication of the continued vitality of MEPA is the willingness of public officials to include the Act in their arsenal of enforcement weapons. Thus far, a total of 45, or over one-third, of all MEPA cases have involved public plaintiffs or intervenors. But beyond mere numbers, MEPA has been applied by all public entities, from state agencies to township governments. The Attorney General and Wayne County Health Department, frequent plaintiffs under MEPA in past years, have continued their affirmative use of the statute. The DNR, the single most frequent defendant in MEPA suits, has now obtained a comprehensive consent judgment in its first suit as a plaintiff under MEPA, in which the Department expanded its normal use of MEPA beyond merely enforcing other environmental statutes.99 Moreover, county prosecutors and township officials have become increasingly aware that MEPA provides an effective tool for speedy environmental law enforcement.

A. The Attorney General: Traditional and Innovative Action

To date, the Attorney General has been a plaintiff or intervenor in 12 MEPA cases.100 Often, the Attorney General has employed MEPA in actions that basically seek to enforce administrative orders.101 The most important recent example of this type of suit involved a foundry described in the press as the worst air polluter in the state.102 In April 1974, the Attorney General filed suit against the Hillsdale Foundry Company, seeking compliance with two Final Orders of Determination of the timid Air Pollution Control Commission.103

[6 ELR 50079]

Because of probable difficulties in obtaining statutory damages,104 the Attorney General sought an injunction under MEPA,105 a remedy significantly restricted under the Air Pollution Act.106 In its opinion on the Attorney General's motion for summary judgment, the circuit court found that the only solution to the foundry's emission problems was to move to another location. Also, the court held that the defendant's admitted failure to comply withthe Commission's final orders constituted a prima facie showing of pollution under § 3(1) of MEPA. Addressing the defendant's affirmative defenses that there existed no feasible and prudent alternative to its conduct, and that its promoting employment in an economically depressed area was conduct consistent with the promotion of the public welfare, the court stated:

[B]oth the Foundry and the Intervenor, Litchfield Industrial Corporation, have expended considerable time and money in efforts to transfer the foundry to a new, enlarged pollution-controlled facility at Litchfield. This facility would provide a "feasible and prudent alternative" to continuing pollution.107

The court then suspended proceedings and ordered the parties to renew efforts to obtain federal financing. Federal loan proposals were later withdrawn, precipitating the foundry's initiation of bankruptcy reorganization proceedings to stay enforcement of the state suit.108 The entire controversy was resolved when the foundry filed for liquidation in bankruptcy.109

Two important observations can be made concerning the Hillsdale Foundry case. First, the court did not use the full extent of MEPA's powers to enforce existing administrative orders. A finding that a defendant has violated an administrative order would normally conclusively prove a violation of MEPA. Ordinarily, the order constitutes a public agency judgment that the requirements contained therein constitute the least protective alternative available to the defendant. A contrary assumption, in effect, would allow MEPA to enlarge the scope of defenses available to polluting defendants, who could raise the "feasible and prudent alternative" defense against the existing order. The intent of MEPA is to allow additional enforcement of regulatory orders by placing a heavier burden of justification on those defendants who also violate other statutes.

Second, Hillsdale Foundry illustrates that courts are not insensitive to the often severe economic problems with which an industry can be faced while attempting to control its pollution. In the case of the Hillsdale Foundry, the court did not take an unyielding posture of immediate compliance. Instead, it acted as a referee by compelling the parties to seek financing for a new, nonpolluting facility rather than permitting them to knock each other out in the courts. That the defendant ceased business was not through want of judicial or prosecutorial compassion. Rather, the environmental enforcement action merely hastened completion of a course that the economically inefficient foundry had set for itself.110

A recent case indicates that the Attorney General's office is beginning to expand its use of MEPA beyond seeking either mere enforcement of existing air or water pollution administrative orders111 or the curtailment of air pollution absent a violation of an administrative order.112 Intervening in Waytes v. Ford Motor Land Development Corporation,113 the Attorney General has [6 ELR 50080] taken the potentially far-reaching position that private development of an allegedly unique privately-owned urban forest reserve ought to be enjoined or at least approved by a prior environmental impact statement. Suit was originally filed by a local citizens' group, Citizens for Henry Ford Wildlife Preserve, to enjoin construction of 500 condominiums by a subsidiary of the Ford Motor Company on a 139-acre parcel of beech and maple forest land inside the city of Dearborn. The condominium construction is a small part of a 2,360-acre development project of the defendant.

Invoking only MEPA, the plaintiffs assert that the irreplaceable forest offers unique recreational opportunities to residents of the Detroit metropolitan area. The Attorney General's intervention added the request that the defendant prepare an environmental impact statement at least 180 days prior to the commencement of any construction.114 In reply, the defendant claims that prohibiting the development would constitute a taking of private property without due process or just compensation. The defendant asserts that a previous dedication to the public of a 1,346-acre tract in the western portion of the Henry Ford estate satisfies any need for public use of the Ford land.115

Waytes represents the first case in which the Attorney General has recognized that comprehensive regulation of private land-use decisions,116 one of the few remaining environmental subject matters in Michigan without special organic legislation, is uniquely suited to the broad remedial scope of action under MEPA. Similar MEPA suits have been attempted by local groups,117 but state agency coordination of such an effort may be necessary to regulate effectively the broader impacts of private land-use decisions.

Waytes is an ambitious case; the stakes for substantive development of MEPA are high. The crucial issue is the extent to which a private land owner may be restricted from using a unique parcel of land characterized by irreplaceable benefits flowing from it to the public.118 Because of MEPA's use by a public agency in this precedential case,119 Waytes may present an opportunity for a detailed judicial consideration of the relationship between MEPA and the "takings" argument.

B. County Plaintiffs: Prosecutorial Use

Public officials' commitments to MEPA have not been restricted to the state level. County prosecutors have, with increasing frequency, shown MEPA to be an effective device for environmental enforcement. Although prosecutors have independently and successfully pursued local environmental controversies,120 occasionally they team up with state officials to combat particularly serious environmental problems.121 The most recent example of this joint effort is People ex rel. Leonard v. Berlin & Farro Liquid Incineration, Inc.,122 involving a firm licensed under the Liquid Industrial Wastes Act123 that allegedly improperly stores and incinerates chemical wastes. The most interesting development in this complex case illustrates the enormous advantage that MEPA's breadth affords public officials. In response to a DNR order prohibiting further incineration of the wastes,124 and following the prosecutor's suing to insure that the DNR pursued its order, the company asserted that closure of the plant would itself result in pollution.125 In effect, the company was raising the issue of inter-media pollution which recognizes that the pollution from any receiving medium, such as air or water, must at some point end up in another. To counter this tactic, the DNR staff filed an administrative complaint with the DNR alleging that MEPA, as an umbrella for all environmental statutes, requires the defendant to formulate a feasible and prudent alternative to its present conduct, namely, incineration with proper [6 ELR 50081] air pollution control equipment and a plan for interim disposal of the wastes. MEPA thus provides a vehicle for the harmonization of anit-pollution sttutes that, through their compartmentalized foci, cannot individually address the issue of the ultimately most acceptable receptacle for pollution.

C. Local Governments: Preserving Local Environmental Prerogatives

The past two years have witnessed an increase in MEPA litigation initiated by township officials. Through the end of 1973, only three MEPA actions involved township plaintiffs, who have now participated in eight MEPA suits. The cases fall into two relatively definable categories: (1) those in which the township uses MEPA as an enforcement tool in lieu of or absent other possible remedies; and (2) those in which the township challenges a state agency decision affecting land within the township. It appears that in each category the plaintiff township has either obtained a favorable environmental result or, the least, obtained a forum in the decision-making process that it otherwise did not possess.

The township case with the largest impact thus far is Lincoln Township v. Manley Brothers,126 which was brought primarily because state statutes contained no protective provisions for the sand dunes in the township, and because state administrators had, for the most part, refused to use existing regulatory powers to police sand dune mining.127 The favorable decision obtained by the township plaintiff provides an instructive example of the utility of MEPA where the environment faces a threat that requires innovative controls.

Given the inherently overlapping nature of state and local governments, friction is bound to develop between the two levels. Often, local governments are powerless to contest the merits of state-level decisions that significantly affect their locale. Experience under MEPA suggests, however, that the Act has empowered local officials to mount often successful challenges to the validity of state decisions.128 A recently filed case indicates that MEPA provides a structure for environmental decision making in which all levels of government can air their concerns. In Avon Township v. DNR,129 the plaintiff contests the state agency's decision to license a landfill, after the owner of the land on which the landfill was to be located had obtained a judgment declaring the township's zoning ordinance unconstitutional as applied to his land.130 In addition to seeking prohibition of the local landfill license, the township requests the court to compel the DNR to develop rules for the location of landfills, a process that will open up state decisional criteria to prior scrutiny by affected localities,131 since promulgation of such rules under the Administrative Procedure Act entails allowing public comment on the proposed criteria.

V. Substantive Law in Administrative Proceedings

Five years' of experience has demonstrated that two of MEPA's principal goals have been regularly achieved Citizens have almost without exception obtained judicial relief from environmental injury or have been given a heretofore unavailable opportunity to challenge environmentally harmful activities, and existing regulatory schemes have been supplemented, both in substantive law and in enforcement resources. There is no serious dispute that MEPA citizens' suits are not a panacea; they are not meant to supplant existing administrative regulation. The potential strength of MEPA is hampered, however, by the critical lack of public interest law firms and well-financed, permanent environmental groups with a defined target area of environmental concern. So, for Michigan, and similar states, the impetus for positive changes in environment protection must rely on administrative agencies applying MEPA in their day-to-day decision making.

As noted earlier, one primary function of MEPA is to limit administrative discretion to insure that agency decisions are environmentally sound. MEPA limits discretion indirectly through citizen suits that seek judicial review of the merits, rather than of the procedural propriety, of agency decisions. The limitation arises either through the original court suit filed under § 2(1) of MEPA, or through judicial review of an agency's decision after the court, pursuant to § 4(2), has remitted the parties on an agency proceeding for a determination of the environmental soundness of the defendant's conduct. Courts faced with the choice of review have thus far preferred to decide the cases on their own, rather than seeking administrative assistance.132

Perhaps because of this lack of judicial experience in testing the administrative remission provisions of MEPA, until recently no court had directly addressed the question of the scope of judicial review of administrative action under MEPA. This may also be due in part to the willingness of agency defendants to respond to MEPA challenges by defending their behavior on its environmental merits,133 and to the direct language of § 4(4), which substitutes the broad MEPA standard of [6 ELR 50082] judicial review of agency action for any applicable standard of review under the Administrative Procedures Act.134 Nevertheless, the defendants in Superior Public Rights, Inc. v. DNR argued that § 106 of the APA135 restricted the scope of review in MEPA cases where the parties have participated in administrative proceedings. The court rejected this contention, citing the courts' duty to fully adjudicate the merits of MEPA actions:

[W]hether those proceedings were conducted as original proceedings or conducted on remission makes no difference to the issue of the scope of judicial review. Remission under [MEPA] may be (and was in this case) a very useful function in developing a factual record for judicial scrutiny. The Legislature has so recognized. But to hold upon remission the scope of review is thereafter limited to the scope of review dictated by Sec. 106 of the APA would be but to cede not only this Court's authority, but its obligation to make independent factual determination of issues properly raised in plaintiff's "independent cause of action."136

In addition to this indirect narrowing of agency discretion, however, MEPA contains a positive requirement that administrative agency decisions reflect a consideration of environmental factors. Section 5(2) of MEPA provides:

In any such administrative, licensing or other proceedings, and in any judicial review thereof, any alleged pollution, impairment or destruction of the air, water or other natural resource or the public trust therein, shall be determined, and no conduct shall be authorized or approved which does, or is likely to have such effect so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.137

Despite this unequivocal language, one disappointing aspect of MEPA's early application was neglect of its § 5(2) by administrative agencies and environmental plaintiffs.138 If the most effective means of environmental protection is reformation of agency behavior, § 5(2) and the intervention provision in § 5(1) of MEPA become all the more crucial. Capable environmental advocates can lighten considerably an administrative regulators' duties by providing additional information and counteracting the pressure that agencies feel from their regulated constituencies. Moreover, the integration of MEPA into administrative decision making is better facilitated through involvement at the outset of the decision rather than by superimposition of MEPA's mandates by a reviewing court.

It now appears that MEPA is being applied by administrators as an independent requirement for environmental protection.139 This movement can be attributed in large part to the strong language in the Ray and Vanderkloot cases imposing unquestionable duties upon administrative officials to protect the environment.140 Two administrative proceedings currently before the DNR under the Inland Lakes and Streams Act of 1972141 illustrate this trend. In Lake Doster Development [6 ELR 50083] Company142 the DNR denied a developer's request to dam Silver Creek, a high-quality trout stream in Allegan County, which would have created a 570-acre impoundment. Together with its findings of fact under the Inland Lakes and Streams Act143 that the impoundment could not serve as duck habitat, the DNR acknowledged its affirmative duties under MEPA to protect the public trust in Silver Creek, concluding that the fishery resource would be totally destroyed by the proposed dam through oxygen depletion and eutrophication from the establishment of the proposed semi-permanent waterfowl population.

The significance of Lake Doster is that MEPA was used by the DNR to determine that, environmentally, the best use of Silver Creek is as a trout stream. Without MEPA's aid, it is possible that the DNR easily could have continued its speculative policy of preparing its defenses in case the permit were denied.144 In fact, the DNR's positive action has not only prompted the developer to challenge the decision in a contested case hearing under the Administrative Procedures Act,145 but also encouraged an environmental organization to intervene under § 5 of MEPA, presumably to bolster the DNR's review decision with additional expertise and information.

The second proceeding before the DNR carries the substantive application of MEPA one step further than Lake Doster. Territorial Enterprises, Inc.146 involves the possibly harmful connection of several drainage ditches to Territorial Creek in Van Buren County by a subdivision developer, which was brought to the attention of the DNR by the Michigan Lakes and Streams Association (MLSA). Notwithstanding a prompt letter from the DNR to the developer specifying remedial measures to prevent additional erosion in the ditches, MLSA petitioned to intervene in the administrative proceedings. The intervention was in effect granted by commencement of a contested case hearing under the Administrative Procedures Act before a DNR examiner receiving testimony on the legality of the developer's conduct.

The hearings examiner issued a detailed proposed decision, one of the major findings of which was that the Inland Lakes and Streams Act did not apply to the ditches because they come within the "minor stream" exemption.147 The DNR was left, then, with only MEPA on which to base its decision. The examiner's language on this point is significant, because it demonstrates the interstitial nature of MEPA where other statutory authority is found lacking:

The clear intent of the various [DNR enabling] acts when read in conjunction with the Environmental Protection Act is to give agencies an additional substantive standard in their proceedings. That is, beyond the confines of general regulatory authority are the standards of the Environmental Protection Act's provisions. The Inland Lakes and Streams Act sets standards for all lakes and streams within the state. The Environmental Protection Act comes into focus when activity falls within the generally applicable scheme of regulation.148

The examiner went on to make fact findings under MEPA. He determined that the ditches were not at that time polluting the creek, but that if residential construction were begun, septic tank runoff would probably reach the creek. The MSLA had therefore established a prima facie case that the developer's conduct violated MEPA. The examiner also found that the alternative action of filling in the ditches to allow nearby swamps to perform their natural filtering function was both feasible and prudent. He thereupon ordered the developer to fill and stabilize the ditches and stream bank to protect. Territorial Creek.

Environmental organizations appear only recently to have discovered the bureaucratic pressure points that [6 ELR 50084] can be affected through application of MEPA. For instance, the example of the Michigan Lakes and Streams Association's intervention in Territorial Enterprises has been followed in another DNR proceeding, in which the West Michigan Environmental Action Council intervened in a DNR contested case over issuance of a landfill license.149 The intervenor alleged that MEPA creates two grounds of substantive authority for the DNR's decision: first, by fleshing out the procedural skeleton of Executive Order 1974-4; and, second, by independently requiring the applicant to demonstrate, with evidence, that all alternatives have been investigated and that a cost-benefit analysis, weighted heavily toward environmental protection, has been performed.

The integration of MEPA with state agency duties under Executive Order 1974-4, which is Michigan's version of a "little NEPA,"150 is a fertile issue that raises significant questions about the future direction of Michigan's environmental policies. The procedural mechanism of impact statements required by Order 1974-4 dovetails nicely with the substantive commands of MEPA. The Order provides an ideal device for monitoring agencies' compliance — or lack thereof — with MEPA. Indeed, the Order is a ready-made discovery device for parties challenging agency action under MEPA. Conversely, one can expect that the Environmental Review Board, which reviews all impact statements for procedural compliance with the Executive Order, will apply MEPA's commands in a substantive review of the impact statements.

The question of MEPA's substantive applicability to administrative action has not often been raised in court challenges to agency programs,151 although MEPA's augmentation of the enforcement process and the impact of MEPA on administrative behavior has been briefly explored.152 In two recent cases, however, plaintiffs have challenged the structure of agency programs and seek to institute substantial reforms in regulatory programs. In Sprik v. Farm Bureau Services, Inc.,153 along with other claims for damage to his own livestock, the plaintiff claims that the Department of Agriculture's testing of livestock contaminated with polybrominated biphenyl (PBB) fails to protect the environment adequately. Although the Agriculture Department has conducted hearings on the sufficiency of its PBB tolerance levels, the plaintiff offers to prove that current federal guidelines violate MEPA and are based on studies with faulty methodology. To buttress this claim, the plaintiff will attempt to establish the massive biomagnification of PBB in the flesh of fish and ducks downstream from a PBB manufacturing plant in St. Louis, even where the level of PBB in the water is below the level of analytical sensitivity. The plaintiff seeks further testing and disposal of PBB-contaminated livestock. No judicial action has been taken on the case.

Avon Township v. DNR154 was brought after the plaintiff learned that the DNR intended to issue a license to a landfill developer during the pendency of an appeal in another MEPA case.155 The township seeks to enjoin [6 ELR 50085] issuance of the license either permanently or until completion of the pending appeal. The suit alleges that the DNR's Solid Waste Management Division's administrative rules violate MEPA, and requests the court to compel the DNR to develop standards for the determination of proper locations for sanitary landfills. The township also requests the court to require the state to prepare an environmental impact statement on the landfill project with review by the Environmental Review Board. Raising MEPA in this context may present the first opportunity to obtain judicial determination of the interplay between MEPA, the Administrative Procedures Act, and the authority of the Environmental Review Board over state agency decisions.156 A temporary restraining order was entered, but no subsequent judicial action has been taken in the case.

VI. Procedural Matters

Although one objective of MEPA is to eliminate extensive procedural jousting between the parties, developments in the procedural application of the Act require some mention. And although recent MEPA litigation has produced a wealth of interpretation of the Act's substantive aspects, there has been considerable evolution of some procedural matters — notably the intervention aspect — over the past few years.

A. Standing and Parties

MEPA clearly establishes substantive environmental law but it is often thought of as a statute that merely breaks down the traditional standing barriers for parties who have no economic or personal interest in the litigation. Perhaps because of this widespread perception, defendants have rarely contested the standing of MEPA plaintiffs. In five years, only one court has seriously entertained the question,157 and defendants' recent challenges to plaintiffs' standing have been rebuffed.158 Such a perception may also account for some plaintiffs taking the relatively conservative course of employing MEPA to invoke other statutory remedies, instead of arguing the merits of the case under MEPA itself.159

Because of the open-ended standing provision of MEPA,160 it is impossible to pigeon-hole a dominant type of MEPA plaintiff. Active users of the Act continue to be state and local officials, citizens' groups, established state-wide environmental organizations with interests transcending their members' personal injury, and property owners with standing under conventional riparian or nuisance actions. An interesting development has been the use of MEPA by business-oriented plaintiffs. Although their efforts have not been uniformly successful, these cases indicate that the business community can be sensitive to the quality of the environment protected by MEPA.161

B. Intervention and Joinder

MEPA does not directly provide for intervention in pending suits, since a potential intervenor's interest can be pursued by filing a separate suit under MEPA's broad standing provision. In terms of judicial economy, however, it makes sense to allow intervention of interested parties. The court of appeals has held that such intervention is not by right, but permissive.162 Nevertheless, the circuit courts have generally allowed intervention by plaintiffs who bring distinct interests into the litigation.163 State agencies have uniformly been permitted to intervene or join lawsuits in which they are not named as parties. In the two cases in which a potential defendant has sought to intervene in a MEPA suit, intervention was allowed in one but denied in the other.

In order to integrate MEPA into administrative matters as well as judicial proceedings, § 5(1) of MEPA allows intervention in agency proceedings and the judicial review thereof.164 Although the court of appeals initially [6 ELR 50086] took an expansive view of § 5,165 only very recently have plaintiffs begun to use it to intervene in administrative hearings. In one instance, intervention granted to an environmental group under MEPA ultimately affected the substantive basis for the agency's decision.166

C. Jurisdiction and Venue

The only recent state court case in which a jurisdictional question has been raised is King Arthur's Court, Inc. v. Milliken. A mobile home park brought suit under MEPA and the Mobile Home Park Act167 to require the state, acting through the Public Health Department, to approve the plaintiff's mobile home park license renewal application. The plaintiff wished to use an onland sewage disposal system, and claimed that the license's requirement that forced it to hook up to an allegedly overburdened township sewage treatment system would increase water pollution. Following entry of a temporary restraining order, the defendant's motion for accelerated judgment was granted on the ground that the plaintiff's remedy was in mandamus, over which the court of appeals has original jurisdiction.168 The only other recent discussion of jurisdiction has occurred in a federal case, People's Lakes Action Committee v. Commerce Township,169 in which the court refused to take pendent jurisdiction over the plaintiff's MEPA claim after finding that plaintiff had failed to state a valid federal cause of action.

Because MEPA requires suit to be brought in the circuit court having jurisdiction over the county in which the alleged violation occurs,170 venue questions have not often arisen or been litigated.171 The issue usually arises when a state agency permit or activity is challenged, but defendants in recent cases have chosen not to contest venue being laid in Ingham County, where the state capital and agency offices are located.

D. Class Actions and Cases with Claims for Damages

Nearly one-fifth of all MEPA cases have been filed as class actions.172 This tactic would seem somewhat unnecessary when only injunctive relief is sought under the Act, since the equitable interests of any possible class are adequately represented by an individual plaintiff. But a class action designation might be desirable when a claim for damages in nuisance is joined with a request for injunctive relief under MEPA. The largest number of such cases occurs in Wayne County, where homeowners groups typically seek to enjoin and collect damages from major industrial air polluters. Such cases exhibit three general characteristics. They routinely demand a jury trial; they seek class status in order to enhance the damage amount; and they invariably are the most lengthy MEPA cases because of the crowded Wayne County dockets.173

Most of the cases in which MEPA is a cause of action also include other statutory, common law, or constitutional claims.174 The natural tendency of an attorney for a civil plaintiff, of course, is to allege every possible cause of action against the defendant. Although it is difficult to generalize, the evidence suggests that MEPA cases that include tort claims tend to [6 ELR 50087] be lengthier than the median MEPA case length of seven months.175

E. Injunctions: Refuting the Frivolous Lawsuit Allegation

A pervasive and seemingly unshakable myth maintains that environmental laws such as MEPA foster frivolous lawsuits by "extremist" environmentalists, and that such suits inevitably delay or curtail industrial projects necessary for the continued economic growth of society. This argument has been strongly advocated by proponents of weakening amendments to the Act, in response to Superior Public Rights, Inc. v. DNR, discussed below.176 That suit challenged the DNR's issuance of a permit for construction of a coal unloading facility in Lake Superior, which would feed a power plant essential to the expansion of a rejuvenated iron mining industry in the Upper Peninsula. It should be noted that no injunction was sought in the case, so it therefore does not appear in the following statistical analysis. Still, the construction was delayed for about two years. This delay is, however, attributable to administrative sluggishness, rather than the MEPA litigation.177

Not often acknowledged or discussed, however, is the converse argument that industry-initiated litigation often delays implementation of environmental controls.178 The social costs of such delay — in human health terms and in net costs to consumers — are not easily quantifiable, and thus never appear as persuasive as the direct, bottom-line expense to individual industries subject to environmental regulation. In this context, the effect of MEPA is to internalize the true costs of industrial pollution and thus, to an important extent, correct the power imbalance that has traditionally favored those who profit by transferring what would properly be their business expenses for pollution abatement or other environmental controls to the diffuse public sector.

With these preliminary comments in mind, it is necessary to construct a methodology to assess the litigative delays attributable to MEPA proceedings. Although the societal impact of a statute is not confined only to litigation filed,179 some cold statistics can help answer the question whether or not MEPA suits actually impede industrial efforts in Michigan. It is necessary to know not only the number of cases, but also of injunctions that have been sought, and of those, the number that have been granted. Where injunctions are issued, it is necessary to determine the time between filing the case and issuing the injunction, and from issuance to resolution of the case. Also, it is necessary to identify the parties involved, because often public agencies, rather than aggressive environmentalists, are plaintiffs, and public projects, rather than industrial pollution, are often challenged. The ultimate test, moreover, is which party prevails, for a plaintiff who wins can hardly be characterized as a "frivolous" litigant.

To begin, a mildly surprising fact is that preliminary injunctive relief is requested in only a modest number of MEPA cases.180 When a preliminary injunction is not requested, it is typically in cases in which the Act is used as a lever to enhance the plaintiff's bargaining power, as exemplified by the air pollution cases brought by the Wayne County Health Department.181 Out of 119 cases filed to date, preliminary injunctions have been granted in 30 cases, and denied in 6 cases. Of the 30 cases in which injunctions have been granted, 3 are still pending.

Of the 27 completed cases involving injunctions, the median time from filing the action to resolution was 11 months; the mean time was 13 months. Courts have tolerated minimal delay when considering plaintiffs' requests for injunctive relief; injunctions are typically issued slightly over one month after the case is filed. Of the nine cases that have gone to trial following an injunction, only four and one-half months elapsed between the injunction and the start of the trial. Contrasting this figure with the six-month average of time from filing to trial in all MEPA cases,182 it appears that when [6 ELR 50088] cases are important enough to warrant both an injunction and trial, judges expedite the proceedings. Of those 27 completed cases, 16 have been won to the plaintiffs' satisfication, and of the 12 cases over the median length of 11 months, 7 have been won by the plaintiff and one was not pursued.

It is instructive to analyze the seven protracted cases involving extended injunctive relief. Three of the seven have been discussed previously and their importance is a matter of record.183

The longest case, Ray v. Mason County Drain Commissioner,184 which lasted 46 months, contested a publicly-sponsored stream channelization project. The temporary restraining order initially granted was continued by the judge who was concerned that allowing the project to proceed would moot the controversy. The case was fully tried on the merits within seven months of filing, and produced the most significant appellate consideration of MEPA thus far. Following remand to the trial court, the parties actively negotiated for eight months, and the case was concluded by a consent judgment permanently enjoining the project.

In WCHD v. City of Dearborn,185 a public plaintiff contested the public defendant's burning of diseased elm trees. The case lasted 23 months, during 18 of which a preliminary injunction was in effect, and the defendant's petition to the court of appeals to overturn the injunction was denied.186 The case terminated with entry of a permanent injunction.

Another of the protracted cases, Kelley v. Michigan Standard Alloys, Inc.,187 involved a referral from the Air Pollution Control Commission to the Attorney General's office. The case was essentially resolved two months after filing, when a preliminary injunction was entered requiring the defendant to modify its aluminum smelting and refining operation in Benton Harbor and to submit monthly reports to the Commission. Although the Attorney General's motion for permanent injunctive relief was denied in December 1973, and the case dismissed in January 1974, the plaintiff did not pursue the litigation because the compliance with agency directives had been achieved.

The final case, Williamson v. Lenawee County Road Commission,188 involved a public defendant's proposal to cut several hundred trees for road widening purposes. A temporary restraining order issued, holding the project in abeyance, and after the plaintiff amended his complaint to joint abutting landowners as parties, a settlement was agreed upon whereby approximately 25, instead of 300, trees would be removed.

These cases suggest that industrial defendants have rarely been subject to lengthy injunctions sought by overzealous environmentalists under MEPA. Indeed, of the 27 cases in which injunctions were granted, over one-third involve public agencies as plaintiffs, and over half are directed at public projects such as road widening, condemnation, or municipal sewage treatment plants.

Another test of whether a lawsuit is frivolous is determining which party ultimately prevails. Thus far plaintiffs have won 16out of 27 cases with preliminary injunctions that have been formally decided. The nature and length of the 11 such cases won by defendants must be examined to assess their delaying impact. One of these, Tanton v. DNR,189 was a case of great importance and went through a full trial. It is not yet clear whether the plaintiff has totally lost the controversy.190 Two others have been shown previously to be meritorious or of short duration.191 Another challenged a village's two-block extension of a road along a lake shoreline, and thus can hardly be considered as an impediment to industrial output.192 A fifth case, Taxpayers & Citizens in the Public Interest v. State,193 involved a state agency's sale of a one-acre parcel of "excess" land to a motel, and is now on appeal to consider the important issue of allocation of witness fees and costs in MEPA cases.194 Another case challenged a state agency plan to cut numerous elm trees for road widening purposes, and was resolved in four months.195

Of the three recent cases won by defendants after issuance of a preliminary injunction, none involved a commitment of industrial capital; all challenged state projects. Although the longest of these, Gang of Lakes Environmental Organization v. Gee,196 lasted 36 months, it was brought to trial within 6 months of filing and issuance of a temporary restraining order. The case involved a drain commission proposal to clean out an existing [6 ELR 50089] drain, and, significantly, the parties stipulated to continuing the status quo during the pendency of the suit. Mid-Shiawasee Concerned Citizens v. Tanner,197 which lasted 11 months, sought to compel a discussion of alternatives to traditional chemical sewage treatment, a matter of some consequence, and was directed at a state agency. The third case, Board of Commissioners of Kalkaska County v. State,198 was handled expeditiously by both governmental parties and involved contamination by PBB's, one of the most serious public health crises in recent years.199

In sum, only one protracted injunction case, Braun v. Detroit Edison Co.,200 concerned an industrial defendant who ultimately won. One pending case in which an industrial defendant is under an extended restraining order, Brotz v. Detroit Edison Co., may become the lengthiest MEPA case, but the plaintiffs have achieved partial success.201 Thus, the evidence shows that MEPA's policy of airing the environmental consequences of important and harmful activities has been vindicated, and has not, as some observers feared, brought the economic activity of the state to a halt.

A final word should be said about cases in which preliminary injunctions have been denied. Such cases would seem to be the least meritorious, their initial claim having been found deficient after an evidentiary hearing. Experience under MEPA, however, suggests that such cases have neither disrupted industrial output nor caused concern over delay. Of the six such cases, two ultimately were won by the plaintiff, thus formally reversing the denial of the plaintiff's initial request.202 Another, Blunt v. Apfel,203 involved substantial interaction between the plaintiffs, the private developer, and a state agency that may well determine the course of lakeshore development in northern Michigan. Of the three remaining cases, all of which challenged municipal projects, two lasted one month and the other, three months — hardly a matter of delay.204

F. Security Bonds

The only recent case in which a security bond205 was required of a plaintiff seeking an injunction is Margolis v. Bourquin,206 in which the plaintiff claims that a proposed subdivision violates the Subdivision Control Act of 1967207 by creating illegally small lots and by overburdening the existing water supply. Apparently because a violation of MEPA is not a central issue in the case, the plaintiffs posted a $6,000 surety bond as a condition of obtaining a preliminary injunction, rather than relying on the $500 limitation of § 2a of MEPA.208

G. Multiple Litigation

The specter of multiple suits against a single defendant over a single environmental issue is nearly always raised by opponents of statutes like MEPA. The Act is structured to forestall such duplicative litigation,209 but in practice the provision has not often been needed.210 This is primarily due to the fact that almost every MEPA case was resolved after one legal proceeding.

This does not imply that controversies involving MEPA cases are invariably the subject of a single lawsuit.211 An environmental crisis often affects a substantial portion of the state and causes the filing of several geographically unrelated suits, as in Board of Commissioners of Kalkaska County v. State and its kin.212 Several of the air pollution suits initiated by the Wayne County Health Department generated collateral nuisance actions by residents neighboring the subject facilities.213 [6 ELR 50090] Similarly, an electric transmission corridor condemnation action can create several lawsuits by different property owners.214

The multiplicity issue has arisen in only four cases. In one, the supreme court had previously held in a suit not involving MEPA that the sewer construction activities challenged by the plaintiff could occur only on the land described in the sewer easement.215 The plaintiff then brought suit under MEPA, in Eyde v. State,216 and the supreme court held that the prior condemnation suit was not res judicata as against subsequent MEPA actions. Although the court restricted its holding to the unique facts before it, its reasoning is consonant with MEPA's purpose of creating an independent cause of action for environmental harm that has not been adjudicated in previous statutory or common law actions. A second case, Marshall v. Consumers Power Co.,217 was decided on the ground that federal law preempted state regulation of radiological hazards at nuclear power plants, without reaching the res judicata defense asserted by the defendant.

The final two cases have involved parallel federal proceedings. In Anderson v. Michigan State Highway Commission,218 both branches of the litigation were resolved without consolidation. In Mid-Shiawasee County Concerned Citizens v. Tanner,219 the defendant in the state action promptly removed the case to federal court, where the proceedings were consolidated and decided primarily on federal grounds.

[6 ELR 50091]

H. Attorney's Fees, Witness Fees, and Costs

To avoid the appearance of a lawyers' enrichment statute, MEPA does not provide for the payment of attorneys' fees. The Act does, however, direct that costs to the parties may be apportioned "if the interests of justice require."220

Costs were the subject of extensive hearings following the decision in Taxpayer & Citizens in the Public Interest v. State.221 Because of the highly complex evidence on the public trust issue in the case,222 both the plaintiff and the defendant called numerous expert witnesses. The corporate defendant, Northern Michigan Inns, moved for taxation of costs and more than ordinary fees for expert testimony. Circuit Judge William Brown granted the motion, noting that despite the rule of no costs awards in public question appeals, he could find "no Court Rule, Statute or Custom to support the proposition that costs are not assessed in the Circuit Court sitting as a Trial Court."223 On the plaintiff's motion for a rehearing, Judge Brown reiterated his conclusion, even though he thought that "it is quite clear that this was in the nature of a public question in that there were substantial public rights involved and affected."224 The plaintiff's appeal of the ruling, on which leave was initially denied by the court of appeals, was reinstated by the supreme court for a rehearing on the costs issue.225 The court of appeals recently issued an opinion overruling the trial court's decision and declaring that trial courts have "broad and unfettered discretion" to award costs and fees in MEPA cases.226 The court squarely held NEPA's costs provision to be within the applicable court rule's exception to awarding costs to the prevailing party,227 and disavowed its prior decision228 that held awards of costs in public question cases to be an abuse of discretion.

The Attorneys' fees question has explicitly arisen in three cases. In Superior Public Rights, Inc. v. DNR,229 the court relied on Alyeska Pipeline Service Co. v. Wilderness Society230 to deny an award of costs or attorneys' fees to the plaintiffs, absent a specific statutory or judicial directive, despite its recognition that the lawsuit fostered tighter environmental controls by the DNR over construction of the contested coal dock. In another case, attorneys' fees and costs were awarded the winning plaintiff "as provided by statute."231 And in an administrative proceeding, the DNR hearing examiner held that the Natural Resources Commission had no statutory authority to grant attorneys' fees.232

[6 ELR 50092]

VII. Counteractions

Of special concern for the unencumbered development of MEPA is the incidence of counteractions filed against MEPA plaintiffs.233 Counteractions take the form either of a counterclaim filed in the original MEPA lawsuit by the defendant, or a separate countersuit naming the original MEPA plaintiff as the defendant in a damage action. Thus far, counteractions have been filed in five cases of which the only one reaching a judicial decision was decided in favor of the MEPA plaintiff.234 These counteractions embody either a slander claim or a claim of malicious prosecution, or both, or damages for increased construction costs. The apparent failure of MEPA defendants to litigate their counteractions satisfactorily should be an encouraging sign to environmentalists fearful of incurring damage claim for exercising their rights under MEPA.

It should be noted, however, that one of the more protracted MEPA case battles provoked the threat of the largest damage action in the Act's history. Ten days after the filing of the second lawsuit involving the Marquette harbor coal dock,235 the Marquette city commission authorized the city attorney to file a countersuit against the plaintiff environmental group. The proposed suit would request, inter alia, an injunction against further "harassing" suits by the group, disclosure of the group's membership and financing, and $100,000,000 in damages for defamation, loss of employee services, and mental anguish of the commission members.236 As of this writing, the Marquette city attorney has not filed the proposed countersuit.

In a most interesting development, an earlier countersuit237 inspired a "counter-counter" strategy — an abuse of process action filed in August, 1974, by the original environmental plaintiffs. In Three Lakes Association v. Whiting,238 the MEPA plaintiffs (the first countersuit defendants) claim damages of $2,700,000 against the environmental defendants (the first countersuit plaintiffs) for violating their federal- and state-protected civil rights of freedom of speech and freedom to petition the government for redress of grievances. After summary judgment was granted to the defendants in Wayne County with a grant of venue change, the plaintiffs refiled in Antrim County,239 the site of the original MEPA litigation240 and countersuit. On January 15, 1975, Antrim County Circuit Judge William R. Brown granted the defendants' motion for summary judgment, thus closing the latest chapter in this unusually hard-fought MEPA case.241

VII. Conclusions I: MEPA's Success

Now in its sixth year, the Michigan Environmental Protection Act has successfully borne out its promise to develop a common law of environmental quality. A steady progression of cases through the courts has demonstrated the real contribution of citizen suits to the growth of environmental protection, without, as some feared, alienating industry or clogging the judicial process. This is not to say that MEPA cases have been uniformly successful. But as with any evolutionary process, allowance must be made for trial and error.

Despite the often small scale of cases, significant milestones have been reached. The Act's substantive environmental protection features have been magnified by the supreme court in the Ray and Vanderkloot cases. Increasing attention is being paid to MEPA's function in filling out often incomplete regulatory statutes, either by augmenting their protective provisions, or by providing closer scrutiny of otherwise discretionary natural resource management decisions. It should be noted that MEPA's gap-filling role does not imply that the legislature may now conveniently neglect consideration of further comprehensive environmental legislation. In this respect, MEPA suits serve to alert the legislature to those areas yet in need of specific statutory protection.

Two interdependent factors are chiefly responsible for MEPA's sustained vigor. Citizens — the intended beneficiaries of the Act's unique protections — have shown a strong commitment to MEPA through visible use of litigation and by renewed opposition to damaging amendments. Second, due in large part to this high level of citizen concern, public officials in all areas of government elect to use the Act in a myriad of environmental settings. Often, MEPA liberates agencies from the constraints of their organic legislation allowing them to [6 ELR 50093] confront unusual environmental threats, as well as strengthening their ability to control recalcitrant polluters. To a great extent, this heightened agency awareness is a response to environmental groups' vigorous application of § 5 of the Act.

IX. Conclusions II: Unresolved Interpretive Questions

Despite MEPA's substantial interpretive growth over the past few years, many intriguing questions of interpretation remain open for further development. Among the most important of these is the constitutional interplay between the coverage of the Act and the taking clause.242

Another key untested provision in MEPA is the public trust doctrine provision.243 An opportunity to wield this provision was presented in Superior Public Rights, Inc. v. DNR,244 in which the plaintiff challenged the grant of an easement over approximately 43 acres of Lake Superior bottomland in Presque Isle harbor near Marquette, Michigan, for a coal unloading facility and intake and discharge pipes for the expansion of an electric generating plant. As the controversy ultimately evolved, the plaintiff asserted the venturesome theory that public trust lands can never be put to private use.245 At trial, the plaintiff showed that granting the easement would cause pollution during construction of the facilities and would ultimately result in a loss of protected public uses — swimming, fishing, and boating in Fresque Isle Harbor. Judge Donald L. Reisig held that this showing satisfiedthe plaintif's prima facie burden under MEPA, but that the defendant had both rebutted the plaintiff's case and demonstrated that the construction was the most feasible alternative open to the power company. Specifically, the use of Lake Superior for cooling waters would eliminate reliance on waters from the nearby Dead River whose flow during prior years was often reversed by the substantial water needs of the electric plant. Additionally, the court held that no showing had been made that the easement and its resultant uses would substantially affect the protected public uses.

The court applied the two-fold test developed in Obrecht v. National Gypsum Co.,246 finding that the construction improved the public trust lands at issue and did not damage the public interest in any remaining public trust lands.247 Regarding the plaintiff's contention that the DNR made its disposition without findings sufficiently detailed to take account of all public trust considerations, the court held sufficient the DNR'sdetermination that construction of the intake and discharge pipes would minimize pollution of the Dead River.248 The court specifically observed that the DNR easement was not a total alienation of public trust lands, such as occurred in the famous Illinois Central case,249 and that the proposed location was the most feasible considering the larger context of the entire power plant expansion.250 Superior Public Rights demonstrates that a public trust disposition must meet the feasible and prudent alternative requirement imposed by MEPA as well as the Obrecht tests. The case leaves open, however, the full extent of MEPA protection when there is a public trust alienation more flagrant than that involved in Presque Isle Harbor.

In contrast to its position in Superior Public Rights, the DNR has recently applied the public trust doctrine in an administrative proceeding. In Lake Doster Development Company,251 the DNR denied a permit under the Inland Lakes and Streams Act,252 which requires the DNR to issue a permit for a proposed alteration of an inland lake or stream if it finds that the structure or project "will not adversely affect the public trust or riparian rights" and will not "unlawfully impair or [6 ELR 50094] destroy any of the waters or other natural resources of the state."253 In its decision, the DNR recognized that this language combines with § 5(2) of MEPA254 to impose a strong legal standard of environmental protection in administrative proceedings, concluding that "the proposed action will in fact destroy certain natural resources, impair waters of Silver Creek and have an adverse effect on the public trust therein."255 The decision in Lake Doster, however, raises a significant question of how readily the DNR will independently apply MEPA's public trust duties in its other resource management programs absent the special language of the Inland Lakes and Streams Act.256

The phenomenon of trans-boundary pollution may broaden the extent to which MEPA creates substantive law to control pollution arising in jurisdictions outside Michigan's borders. This question was raised in the now celebrated air and water pollution case of United States v. Reserve Mining Co.,257 in which the federal government, several states, and various environmental groups are challenging Reserve's daily discharge of 67,000 tons of tailings from its taconite mining facility into Lake Superior and its emission of taconite particles into the air of Silver Bay, Minnesota. In 1972, the State of Michigan moved to intervene in the proceedings, asserting its duty to protect the public trust in the waters of Lake Superior under both the common law and MEPA. Whether the state is able to employ MEPA to control trans-boundary pollution was never decided, since Michigan was barred from participating in the negotiations for selecting an on-land taconite disposal site.258

The application of MEPA to nuclear power plant construction may be the subject of future cases, following the Michigan Court of Appeals' decision in Marshall v. Consumers Power Company.259 The plaintiff alleged potential meteorological hazards from the cooling towers and radiological dangers from the operation of a proposed nuclear plant in Midland. The court ruled that federal law preempts state review of plant operation and of the possibility of a nuclear explosion. Although the court did establish that state courts have jurisdiction to entertain allegations of non-radiological nuisance caused by a nuclear plant,260 it specifically declined to measure "the effect of Federal law on law suits based on the Michigan Environmental Protection Act…."261

Exploration of other aspects of MEPA's breadth will doubtless be the subject of future cases. For example, issues such as protecting the aesthetic environment262 [6 ELR 50095] and the extent to which MEPA creates comprehensive protection for wildlife habitat263 remain essentially open. Further, the substantive application of MEPA to state agency actions subject to the environmental impact statement procedural requirements of Executive Order 1974-4 is recently receiving attention in cases and administrative proceedings.264 Finally, further elaboration of the limits of the "feasible and prudent alternative" defense may be forthcoming. In this context, one issue is whether a substantial cost differential justifies a finding that no feasible and prudent alternative to an action exists.265

If the past is any guide, MEPA will be successfully and expeditiously applied to these important questions. The Act has created a structure of environmental law; a framework that, being built over years of experience, remains flexible but powerful. The completion of this structure for further environmental protection is the goal toward which MEPA will be directed in the future.

1. Mich. Comp. Laws Ann. §§ 691.1201-.1207 (Supp. 1976), Mich. Stat. Ann. §§ 14.528(201)-(207) (Supp. 1976), ELR 43001. The Act, referred of as MEPA, will be cited to Mich. Comp. Laws Ann.

2. Sax & Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich. L. Rev. 1003 (1972) [hereinafter cited as Sax & Conner]. This report was written in order to acquaint Michigan lawyers and interested persons in other states with MEPA's use and describe the dynamics of the early, exploratory cases. Up to that time, no appellate court had considered MEPA. In addition, this report concluded that MEPA was most likely to be successful in a small-scale case in which factual issues weighed more heavily than legal interpretation. The most intriguing observation noted in the 1972 study was the surprise of administrative officials as they were compelled, in court, to justify the environmental rationale of projects challenged by citizens under MEPA. Interestingly enough, MEPA litigation was very often able to liberate administrators from intense political pressures so that decisions could be made on their environmental merits. Finally, despite unfamiliarity with the statute by both litigants and courts, enough cases were resolved speedily and effectively to mark the Act initially as a success. The data in Sax & Conner are analyzed in E. Haskell & V. Price, State Environmental Management 228-42 (1973).

3. Sax & DiMento, Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act, 4 Ecology L.Q. 1 (1974) [hereinafter cited as Sax & DiMento]. This study analyzed land-use cases (the most innovative and challenging type of action filed under MEPA), followed the expanded use of the Act by public agencies, and evaluated the Act's procedural developments. It observed that MEPA was creating a structure of regulation in which private plaintiffs were able to mitigate some of the more egregious environmental damage inflicted by subdivision development in northern Michigan and by eminent domain proceedings for electric transmission line construction in the populous southeastern portion of the state. Environmental plaintiffs had become emboldened: the Act's novel command that the public trust component of the environment be protected was invoked in a number of cases. Also, contrary to the fears of many detractors, MEPA had not disrupted the administrative process. Indeed, public officials had come to rely on it in instances where existing administrative regulation inadequately protected the environment. This second report also demonstrated that two other fears of MEPA's opponents were baseless: the majority of MEPA cases involved only one legal proceeding and the state's industry was not hampered by capriciously sought and granted injunctions.

4. Indeed, only two MEPA cases had reached the appellate reporters by the time that Sax & DiMento, supra note 3, was published. Many of the cases reported herein are in progress. Most of those that have been completed were resolved in the initial forum, either trial court or administrative agency. Because of the narrative focus of this article and the often unreported source material, full citation data for all MEPA cases, where unnecessary to the discussion, are omitted.

5. This political uprising is described more fully in Sax, That Dangerous Little Experiment in Public Participation — Six Years Later, 85 Natural History No. 6 at 10 (June-July 1976). For a legislative history of MEPA's enactment, see Note, Michigan's Environmental Protection Act: Political Background, 4 U. Mich. J.L. Reform 358 (1970).

6. Conn. Gen. Stat. Ann. §§ 22a-14 to -20 (Supp. 1976); Fla. Stat. Ann. § 403.412 (Supp. 1976); Ind. Ann. Stat. §§ 13-6-1-1 to -6 (1973); Mass. Ann. Laws, ch. 214, § 10A (Supp. 1975); Minn. Stat. Ann. §§ 116.B.01-.13 (Supp. 1976); N.J. Stat. Ann. §§ 2A:35A-1 to -15 (Supp. 1976); S.D. Comp. Laws Ann. §§ 21-10A-1 to -15 (Supp. 1975). See also Cal. Gov't Code §§ 12600-12 (West Supp. 1976), which is modeled on MEPA except for the standing to sue provision. Decisions under these statutes are discussed in DiMento, Citizen Environmental Legislation in the States: An Overview, 53 J. Urban L. 413 (1976). For other discussions of these statutes see Goldshore, A Thumbnail Sketch of the Environmental Rights Act, 1975 N.J. St. Bar. J. 18; Hatch, Massachusetts and Michigan: Two States With an Answer, 6 Lincoln L. Rev. 119 (1971); Johnson, The Environmental Protection Act of 1971, 46 Conn. Bar. J. 422 (1972); McGregor, Private Enforcement of Environmental Law: An Analysis of the Massachusetts Citizen Suit Statute, 1 Environmental Affairs 606 (1971); Comment, Eminent Domain and the Minnesota Environmental Rights Act: A Shift in the Balance of Power, 9 Urban L. Ann. 237 (1975); Note, The Minnesota Environmental Rights Act, 56 Minn. L. Rev. 575 (1972).

Citizen suit provisions are found in the following federal environmental laws (the first two require a plaintiff to show the misfeasance of an administrator): the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857h-2(a)(2) to -2(b)(1)(B) (1970), ELR 41217; Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1365(a)(2) to (b)(1)(B) (Supp. 1976), ELR 41125-26; Endangered Species Act of 1973, 16 U.S.C. § 1540(g) (Supp. IV 1974), Noise Control Act of 1972, 42 U.S.C. § 4911, ELR 41504; Deepwater Ports Act of 1974, 33 U.S.C. § 1515, ELR 41709; Safe Drinking Water Act, 42 U.S.C. § 300j-8, ELR 41139; Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g), ELR 41823.

For a discussion of the Endangered Species Act, see Wood, Section 7 of the Endangered Species Act of 1973: A Significant Restriction for All Federal Agencies, 5 ELR 50189 (1975).

7. MEPA § 2(1), Mich. Comp. Laws Ann. § 691.1202(1), ELR 43001.

8. Mich. Const. art. IV, § 52.

9. MEPA § 3(1), Mich. Comp. Laws Ann. § 691.1203(1), ELR 43001.

10. MEPA § 4, Mich. Comp. Laws. Ann. § 691.1204, ELR 43001-02.

11. MEPA § 5(1), Mich. Comp. Laws Ann. § 691.1205(1), ELR 43002.

12. MEPA § 3(3), Mich. Comp. Laws Ann. § 691.1203(3), ELR 43001.

13. MEPA § 2a, Mich. Comp. Laws Ann. § 691.1202a, ELR 43001.

14. 42 U.S.C. §§ 4321 et seq., ELR 41009.

15. 33 U.S.C. §§ 1251 et seq., ELR 41101.

16. This figure includes cases not initially filed under MEPA in which MEPA became the ultimate basis for decision. It also includes condemnation cases originally brought in the probate courts. It does not include collateral cases arising out of the subject matter of MEPA suits. One case, United States v. Reserve Mining Co., 380 F. Supp. 11, 4 ELR 20573 (D. Minn. 1974), modified sub nom. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975), is not included for other statistical purposes, since MEPA was never at issue after being used by the State of Michigan to intervene. See note 258 infra.

Seventeen of these cases have involved appellate proceedings. The Michigan Supreme Court has now ruled on MEPA in five cases. Daniels v. Allen Indus., Inc., 391 Mich. 398, 216 N.W.2d 762 (1974); Eyde v. State, 393 Mich. 453, 225 N.W.2d 1 (1975), see note 216 infra; Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 220 N.W.2d 416, 4 ELR 20694 (1974), discussed at text accompanying notes 75-85 infra; Ray v. Mason County Drain Comm'r, 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975), discussed at text accompanying notes 35-45 infra; Taxpayers & Citizens in the Public Interest v. State, 395 Mich. 809, 235 N.W.2d 745 (1975), see note 225 infra.

17. It is also possible that substantial cost barriers are deterring potential plaintiffs from filing suits under MEPA, although there is no exact data to support this hypothesis. Such considerations have not affected the expanded use of MEPA by public agencies.

18. From October 1, 1970, to July 1, 1975, 103 circuit court cases were initiated under MEPA. During the same period, approximately 615,700 civil cases were commenced in circuit courts. State Court Administrator of Michigan, 1974-75 Annual Report 32 (1975). Thus, MEPA cases constitute less than .02 of 1 percent of all civil cases. The frivolous case argument is more fully discussed at text accompanying notes 176-204 infra.

19. Cases filed in these counties number, respectively, 27, 13, and 7. Wayne County has had a large number of industrial air pollution suits. As the site of state agencies, Ingham County is an alternative venue when administrative actions are challenged.

20. NEPA's interaction with the administrative process is discussed in text accompanying notes 132-156 infra.

21. Hendrickson v. Wilson, 374 F. Supp. 865 (1973); Lever v. General Motors Corp., No. 74-70006 (E.D. Mich. filed July 31, 1973); Muskegon Save Our Shoreline, Inc. v. North Star Steel Co., No. G75-461 CA6 (W.D. Mich., filed Sept. 29, 1975); People's Lakes Action Comm. v. Commerce Township, No. 4-71826, Decision of Dec. 18, 1974 (E.D. Mich., DeMascio, J.). In addition to these, two cases, McPhail v. Army Corps of Eng'rs, 3 ELR 20237 (E.D. Mich. 1972) and Mid-Shiawasee County Concerned Citizens v. Tanner, 408 F. Supp. 650 (E.D. Mich. 1976), have been removed to federal court. Two other cases, Farmer v. Construction Aggregates Corp., No. G-119-72-CA, Decision of Sept. 26, 1973 (W.D. Mich., Engel, J.) and Wayne County Health Dep't v. National Steel Corp., No. CA-37111 (E.D. Mich., filed Sept. 16, 1971), were removed to, then remanded from, federal court. The Wayne County Health Department is hereinafter referred to as WCHD.

22. United States v. Reserve Mining Co., 380 F. Supp. 11, 4 ELR 20573 (D. Minn. 1974), discussed at text accompanying notes 257-58 infra.

23. Air pollution matters (38 cases) have been initiated primarily by public agencies. Water pollution treatment systems (17 cases) have an even mix of mostly public agency and local environmental group plaintiffs. Homesite development projects (11 cases) have been challenged most often by environmental organizations.

24. MEPA's role as "supplementary substantive law" is discussed in text accompanying notes 53-98 infra.

25. Environmental organizations' interventions in agency actions are discussed at text accompanying notes 132-150 infra. One environmental group, the West Michigan Environmental Action Council, has attempted to further doctrinal development of MEPA through extensive amicus curiae appearances.

26. Use of MEPA by public plaintiffs is discussed in text accompanying notes 99-131 infra.

27. For clarity, "plaintiff" as used herein means the party raising MEPA, whether or not that party is the named plaintiff in the matter. See, e.g., Jamens v. Avon Township, discussed at text accompanying note 130 infra; Muskegon County v. Environmental Protection Org. (Cir. Ct. 1971), discussed in Sax & Conner, supra note 2, at 1035-37.

28. For purposes of this study, "trial court" means the tribunal of first instance, including circuit courts, deferal district courts, administrative agencies, and, in one instance, the Supreme Court, where MEPA was raised for the first time. Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 220 N.W.2d 416, 4 ELR 20694 (1974), discussed at text accompanying notes 75-85 infra.

29. Twelve suits have been resolved in one month or less, and 35 have lasted more than one year. The longest cases, taking over two years, are Bise v. Detroit Edison Co. (33 months), Blunt v. Apfel (30 months), Dep't of Natural resources v. Kiffer (26 months), Gang of Lakes Environmental Org. v. Gee (36 months), Ray v. Mason County Drain Comm'r (46 months), Roberts v. State (25 months), Sarabyn v. City of Dowagiac (33 months), WCHD v. McLouth Steel Co. (29 months), and Wharf Marina v. City of Grand Haven (27 months). The Department of Natural Resources is hereinafter referred to as DNR. Currently pending cases are lasting somewhat longer on the average, but many of these are Detroit area air pollution cases that are being delayed by congested dockets in Wayne County. See note 173 infra.

30. See Docket Congestion in Michigan, 55 Mich. St. B.J. 13 (1976).

31. See note 73 infra.

32. See Sax & DiMento, supra note 3, at 15-21.

33. See Sax & Conner, supra note 2, at 1060-64.

34. See Roberts v. State, 1 ELR 20227 (Cir. Ct. 1971) (MEPA unconstitutionally delegates legislative power), aff'd in part and rev'd in part, 45 Mich. App. 252, 206 N.W.2d 466, 3 ELR 20207 (1973); contra Lakeland Property Owners Ass'n v. Township of Northfield, 2 ELR 20331 (Cir. Ct. 1972) (MEPA not an unconstitutional delegation of legislative power).

35. 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975), discussed in Comment, Three Recent Cases: State Environmental Protection Acts Revisited, 1975 Det. C.L. Rev. 265. The factual background of the case is described in Sax & DiMento, supra note 3, at 30-32, 48 n. 220.

36. 393 Mich. at 306, 224 N.W.2d at 888, 5 ELR at 20178.

37. Id. at 306 n. 10, 224 N.W.2d at 888 n. 10, 5 ELR at 20178 n. 10. See generally, Note, The Constitutional Question: Vagueness and Delegation of Powers, 4 U. Mich. J.L. Reform 397 (1970).

38. This does not imply that such allegations will not hereafter be made. In a recently filed case, WCHD v. Pressure Vessel Service, Inc., No. 75-57398-CE (Cir. Ct., filed Mar. 3, 1975), WCHD seeks to enjoin alleged violations of its air pollution regulations by defendant's sulfuric acid plant. The defendant has raised the affirmative defenses that (1) a new system to control sulfuric acid emissions is the only feasible and prudent alternative to its present system, but WCHD refuses to allow installation of the new system; (2) WCHD has primary jurisdiction to resolve the dispute; and (3) MEPA unconstitutionally delegates legislative authority to the courts. The second defense, in attempting to enforce the primary jurisdiction doctrine against the agency allegedly with primary jurisdiction, stretches the doctrine to an untenable extreme. See also Water Resources Comm'n v. Chippewa County (Cir. Ct. 1971), discussed in Sax & Conner, supra note 2, at 1019-24; White Lake Improvement Ass'n v. City of Whitehall, 22 Mich. App. 262, 177 N.W.2d 473 (1970). See generally Comment, Primary Jurisdiction in Environmental Cases: Suggested Guidelines for Limiting Deferral, 48 Ind. L.J. 676 (1973). The validity of the third defense is doubtful in view of Ray.

39. See H.B. 4234 (1975), which would establish state-wide comprehensive land use controls.

40. MEPA's relationship to the takings clause has arisen most explicitly in Waytes v. Ford Motor Land Dev. Corp., No. 75-75584-CE (Cir. Ct., filed July 30, 1975), discussed at text accompanying notes 113-19 infra. See Lincoln Township v. Manley Bros., No. 74-1113-CE, Judgment of Dec. 20, 1974 (Cir. Ct., Byrns, J.), note 57 infra.

See also Costonis, "Fair" Compensation and the Accommodation Powers: Antidotes for the Taking Impasse in Land Use Controversies, 75 Colum. L. Rev. 1021 (1975); Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967); Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); Plater, The Takings Issue in a Natural Setting: Flood Lines and the Police Power, 52 Texas L. Rev. 201 (1974).

41. Ray v. Mason County Drain Comm'r, 393 Mich. 294, 306, 224 N.W.2d 883, 888, 5 ELR 20176, 20178 (1975).

42. This holding was suggested in a more limited way in Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 178-79, 220 N.W.2d 416, 425, 4 ELR 20694 (1974), discussed at text accompanying notes 75-85 infra. This concept is currently being elaborated in numerous MEPA cases. See text accompanying notes 139-48 infra.

43. After a MEPA plaintiff establishes a prima facie case of environmental degradation, the burden of going forward with evidence shifts to the defendant:

In some cases, no doubt, testimony by-expert witnesses may be sufficient to rebut plaintiff's prima facie showing. While in other actions the defendant may find it necessary to bring forward field studies, actual tests, and analyses which support his contention that the environment has not or will not be polluted, impaired or destroyed by his conduct. Such proofs become necessary when the impact upon the environment resulting from defendant's conduct cannot be ascertained with any degree of reasonable certainty absent empirical studies or tests.

Ray v. Mason County Drain Comm'r, 393 Mich. 294, 311-12, 224 N.W.2d 883, 890-91, 5 ELR 20176, 20179 (1975).

44. Id., 393 Mich. at 307-08, 224 N.W.2d at 888-89, 5 ELR at 20179. The circuit court's entire findings of fact under MEPA stated: "The plaintiffs do not sustain the burden of proof on this issue. In fact, the burden is carried by a great volume of evidence in favor of the defendants and, therefore, Count I is denied." 393 Mich. at 301, 224 N.W.2d at 885-86.

45. Cf. National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (Supp. VI, 1976), ELR 41009. For instance, federal courts have repeatedly emphasized that the goals announced by NEPA can come of fruition only through strict procedural compliance by federal agencies in preparing environmental impact statements. See, e.g., Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

46. 4 ELR 20553 (Cir. Ct. 1974). The case involved proposed street and water pipeline construction across biologically unique Lake Michigan duneland owned by Central Michigan University and the Nature Conservancy. The construction was to facilitate private development of luxury residences contemplated by the corporate defendants. The developers also planned to cut two long canals into their portion of the duneland to create riparian access for the homes. See note 94 infra. The controversy was resolved when the Nature Conservancy provided a long-term loan of $150,000.00 to preserve the contested 60-acre site. Grand Rapids Press, Dec. 19, 1974, § B, at 8, col. 1.

47. Now a federal district judge for the Western District of Michigan.

48. The judge noted the following statutes:

The original statute creating the predecessor to the Michigan Deparment 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 Resource 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).

4 ELR at 20554.

49. Mich. Const. art. 4, § 52, set forth at text accompanying note 8 supra.

50. 401 U.S. 402, 1 ELR 20110 (1971).

51. 49 U.S.C. § 1653(f)(1) (Supp. VI, 1976), ELR 41605 ("feasible and prudent alternative").

52. Superior Public Rights, Inc. v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.) at 42, 6 ELR 20435, 20437. The judge may have decided more than was necessary to adjudicate the constitutional question, since it is entirely possible that the legislature might set environmental standards that in limited circumstances would supersede MEPA. In such a case, normal canons of statutory construction would apply to resolve statutory conflicts. Sax & Conner, supra note 2, at 1060-65.

53. E.g., the DNR has taken the position that it can regulate sand dune mining only with specific legislative authority. Detroit Free Press, Dec. 26, 1974, § A, at 3, col. 2. An identical position was originally taken by the DNR in relation to its authority to control toxic substances like polychlorinated biphenyls (PCB's). Detroit Free Press, Oct. 22, 1975, § C at 15, col. 6. The DNR has recently been given specific regulatory authority over PCB's. Public Act 60 of 1976, Mich. Comp. Laws Ann. §§ 299.351-.360 (Supp. 1976).

54. See Lanning, State of Management of the Environment — Part One: An Evaluation of the Michigan Experience, 8 U. Mich. J.L. Reform 286 (1975); Lanning, State Management of the Environment — Part Two: A Continuing Evaluation of the Michigan Experience, 8 U. Mich. J.L. Reform 467 (1975).

55. Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 184, 220 N.W.2d 416, 427, 4 ELR 20694 (1974).

56. No. 74-1113-CE, Judgment of Dec. 20, 1974 (Cir. Ct., Byrns, J.), consolidated that Lake Township v. Manley Bros., No. 74-1114-CE (Cir. Ct., amended complaint filed Aug. 13, 1974).

57. The defendants claimed that MEPA was unconstitutionally vague, an unlawful delegation of legislative authority, and a taking of private property without just compensation. These arguments were not explicitly addressed by the court in its judgment, which implicitly rejected the defendants' legal arguments regarding the scope of relief under the Act:

This Court by its statutory and inherent powers and under [MEPA] has the power and duty to grant temporary and permanent relief and to impose such conditions upon the use of private property as may be required to protect natural resources of the state such as trees, vegetation and wildlife, and the public trust therein from pollution, impairment and/or destruction.

Lincoln Township v. Manley Bros., No. 74-1113-CE, Judgment of Dec. 20, 1974 (Cir. Ct., Byrns, J.) at 5.

58. Id. at 6.

59. See generally Bosselman, The Control of Surface Mining. An Exercise in Creative Federalism, 9 Nat. Res. J. 137 (1969); Comment, Constitutional Law — Government Regulation of Surface Mining Activities, 46 N.C.L. Rev. 103 (1967); Comment, Strip Mine Regulation, 39 Mo. L. Rev. 429 (1974), Note, Skivolocki v. East Ohio Gas Co.: Delimiting the Mineral Owner's Right to Strip Mine, 2 Ohio N.U.L. Rev. 378 (1974).

60. See Sax & DiMento, supra note 3, at 8-15.

61. Of the 67,645 acres of Lake Michigan duneland, 3,515 are subject to mineral easements. Lincoln Township v. Manley Bros., No. 74-1113-CE, Judgment of Dec. 20, 1974 (Cir. Ct., Byrns, J.) at 7.

62. See Detroit Free Press, Dec. 26, 1974, § A, at 3, col. 2; Dec. 29, 1974, § A, at 3, col. 7; Feb 2, 1975, § B, at 7, col. 1. The sand dune mining controversy is extensively covered in Burns, Legislators Study the Sane Dune Controversy, Grand Rapids Press, Dec. 15, 1974, § B, at 1, col. 1; Burns, "… What's Left of the Dunes Should be Preserved," Grand Rapids Press, Dec. 22, 1974, § D, at 1, col. 1; Burns, Sand Operations in Manistee Raise Storm of Protest, Grand Rapids Press, Dec. 29, 1974, § B, at 1, col. 1.

63. Whether that resolve in fact exists is uncertain. Recently, a sand mining operation was begun near Silver Dunes State Park in Oceana County. In response to local citizen outrage, the DNR neatly tossed the problem back in the citizens' laps, commenting that comprehensive legislation was needed before the DNR could act. Curiously, the DNR cited MEPA as the citizens' sole legal recourse. Lansing State J., Feb. 26, 1975, § C, at 7, col. 4.

64. On November 18, 1975, the Michigan House of Representatives passed H.B. 4038, which would grant authority to the DNR to regulate sand dune mining within two miles of the Great Lakes shoreline. A surveillance fee system is set up by the bill. The DNR must inventory all barrier dunes and must deny applications for mining if irreparable harm would be done thereby to dunes with special environmental characteristics. Applicants would have to submit environmental impact statements before obtaining a mining permit.

65. See Miller, Anderson & Liroff, The National Environmental Policy Act and Agency Policy Making, 6 ELR 50020 (Mar. 1976).

66. See, e.g., Ethyl Corp. v. EPA, 6 ELR 20267 (D.C. Cir. Mar. 19, 1976), cert. denied 44 U.S.L.W. 3715 (June 14, 1976).

67. Ray v. Mason County Drain Comm'r, 393 Mich. 294, 306-07, 224 N.W.2d 883, 888, 5 ELR 20176, 20178 (1975).

68. Allegations have been made that the mixing "accident" may have been noticed by workers but hushed up by their superiors. New York Times, Nov. 9, 1975, at 79, col. 1. See also Detroit Free Press, Nov. 5, 1975, § C, at 6, col. 1; Lansing St. J., Nov. 5, 1975, § A, at 3, col. 1.

69. Public Act 181 of 1974, Mich. Comp. Laws Ann. §§ 287.71-.75 (Supp. 1976).

70. No. 74-619-CE (Cir. Ct., filed July 4, 1974). In addition to their claim under MEPA, plaintiffs alleged that the state was violating Executive Order No. 1974-4 (set out in note 150, infra), which requires preparation of an environmental impact statement prior to initiation of any major state action significantly affecting the environment. The Department of Agriculture did prepare an impact statement, but not until August 12, 1974, nearly 40 days subsequent to the initial burial activity. See Mich. Dep't of Agriculture, Environmental Impact Statement, Disposal of Polybrominated Biphenyl (PBB) — Contaminated Cattle in Kalkaska County (1974).

71. In granting the injunction, Judge Walsh said, "If the chemical gets into a water supply it could have serious implications on the area. The court is impressed of the importance of the matter and will give 30 days to raise any other issues." Traverse City Record-Eagle, July 10, 1974, at 1, col. 1. The defendants immediately filed an emergency claim of appeal in the Michigan Court of Appeals. They asserted that the plaintiffs had not established a prima facie case under MEPA, because the only testimony given was that of the commissioners present at the burial site on July 3. The court of appeals denied the defendants' application for leave to appeal, stating that "the serious questions raised by this litigation should not receive appellate review before a complete trial record is available." Board of Comm'rs of Kalkaska County v. State, No. 21052, Decision of July 25, 1974 (Ct. App., Quinn, R. Burns & T. Burns, JJ.).

72. Judge Walsh had previously disqualified himself on his own motion.

73. The controversy surrounding Board of Commissioners has led to legislation designed to prevent similar crises in the future. The Commercial Feed Act, Public Act 120 of 1975, Mich. Comp. Laws Ann. §§ 287.521-.535 (Supp. 1976), requires licensing of feed distributors and labeling of feed bags with a composition analysis of the contents. Belated legislation such as the Commercial Feed Act serves only to emphasize the necessity of general environmental protection laws like MEPA which can provide flexible answers to as yet unknown environmental dangers.

The case also illustrates the potential for quick resolution of substantive issues under MEPA. Judge Wickens commented during the final hearing, "This is a catastrophe and I don't propose to let the matter run on and on. We will settle this matter today even if it means we will go until midnight." Traverse City Record-Eagle, Aug. 23, 1974, at 5, col. 1. Both parties sought an immediate decision. The plaintiffs wished to remove the potentially hazardous operation from their county. The defendants were concerned with the possible secondary contamination of the public if the animals were not disposed of immediately. Through forceful application of MEPA by the circuit judges, and through encouragement from the court of appeals to the parties to press quickly for a resolution at trial, the merits of the proposal were quickly decided.

Similarly expeditious judicial handling of the substantive content in crisis-generated MEPA cases is illustrated by Trout Unlimited, Inc. v. Milliken (Cir. Ct., filed June 18, 1971), discussed in Sax & Conner, supra note 2, at 1012-14, and Muskegon County v. Environmental Protection Org. (Cir. Ct. 1971), discussed in Sax & Conner, supra note 2, at 1035-37.

74. See Mich. Comp. Laws Ann. § 322.204 (1967); § 299.2 (1967); State Highway Comm'r v. Redford Township, 4 Mich. App. 233, 144 N.W.2d 690 (1966). But see Township of Haring v. City of Cadillac, 35 Mich. App. 260, 192 N.W.2d 384 (1971), holding that the DNR lacks authority to allow the city to use state-owned land for refuse disposal contrary to a township zoning ordinance.

75. 392 Mich. 159, 220 N.W.2d 416, 4 ELR 20694 (1974).

76. Mich. Comp. Laws Ann. § 213.361 et seq. (1967), as amended § 213.361 et seq. (Supp. 1976).

77. Mich. Const. art. 4., § 52. See text accompanying note 8 supra. See generally Frye, Environmental Provisions in State Constitutions. 5 ELR 50028 (1975).

78. Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 182-83, 220 N.W.2d 416, 426-27, 4 ELR 20694, 20698 (1974).

79. The concurring opinion in Vanderkloot raised the intriguing point that MEPA might be constitutionally immune from repeal or substantial alternation:

This Court's statement that there is a "mandatory legislative duty imposed by art. 4, § 52" implies that during the period between [MEPA's] enactment in 1970 and the effective date of the 1963 Constitution, the Highway Commission and other state agencies and government units whose actions may affect the environment were operating in derogation of the constitution. This language also suggests that repeal or significant alteration of [MEPA] by the Legislature would violate art. 4, § 52.

Id. at 194, 220 N.W.2d at 126-27, 4 ELR at 20700 (Levin, J., concurring).

80. Id. at 184, 220 N.W.2d at 28, 4 ELR at 20698.

81. 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975), discussed at text accompanying notes 35-45 supra.

82. For a discussion of the expansion of the necessity doctrine in electric utility eminent domain proceedings, see Sax & DiMento, supra note 3, at 15-21.

83. Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 186, 220 N.W.2d 416, 428, 4 ELR 20694, 20698.

84. Id. at 190, 220 N.W.2d at 430, 4 ELR at 20699.

85. The holding in Vanderkloot has been criticized for actually narrowing the scope of review by individual condemnees, who previously could raise the defense that an entire highway project failed to meet the necessity criterion. See Note, Environmental Law — Eminent Domain — Judicial Review of Condemnation Necessity Limited to Site Considerations, 21 Wayne L. Rev. 1173 (1975). See generally Comment, Highways, Environmental Legislation, and Judicial Review: The Changing Notion of Necessity, 50 N.D. L. Rev. 483 (1974).

86. No. 73-15852-CE, Opinion of March 2, 1976 (Cir. Ct., Regisig, J.), 6 ELR 20435.

87. Mich. Comp. Laws Ann. §§ 322.701 et seq. (1967), as amended Mich. Comp. Laws Ann. §§ 322.701 et seq. (Supp. 1976).

88. Mich. Comp. Laws Ann. § 24.306 (Supp. 1976) provides:

(1) Except when a statute or the Constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or the order is any of the following:

(d) Not supported by competent, material and substantial evidence on the whole record.

89. Superior Public Rights, Inc. v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.) at 23, 6 ELR 20435, 20437. The judge specifically noted that in Ray v. Mason County Drain Comm'r, 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975), the Supreme Court had not directly addressed the issue of judicial review of agency decisions predicated upon organic regulatory statutes. No. 73-15852-CE at 20, 6 ELR at 20436.

90. No. 73-15852 at 22, 6 ELR at 20437.

91. No. 73-3541-NO (Cir. Ct., filed Aug. 20, 1973).

92. Mich. Comp. Laws Ann. § 281.632(d) (Supp. 1976).

93. Section 11 of the Shorelands Act, Mich. Comp. Laws Ann. § 281.641 (Supp. 1976).

94. No. 74-837-CE, Decision of July 25, 1975 (Cir. Ct., Glennie, J.). See Sax & DiMento, supra note 3, at 10, for a discussion of other MEPA cases involving "stretching" riparian ownership to include back lots. See also note46 supra.

95. Mich. Comp. Laws Ann. §§ 560.101-.291 (Supp. 1976).

96. The use of MEPA in land development cases in general is discussed in Sax & DiMento, supra note 3, at 8-15.

97. Mich. Comp. Laws Ann. § 281.951 et seq. (Supp. 1976). See text accompanying notes 142-45 infra.

98. The Natural River Act of 1970, Mich. Comp. Laws Ann. §§ 281.761 et seq. (Supp. 1976), regulates rivers in much the same manner as the Shorelands Act applies to shorelines. See also § 4 of the Wilderness and Natural Areas Act of 1972, Mich. Comp. Laws Ann. § 322.754 (Supp. 1976), ELR 43003, which provides, in part:

(1) … The department [of natural resources] shall propose to the [natural resources] commission land which in its judgment is most suitable for dedication by the commission as wilderness areas, wild areas or natural areas. The department shall administer the proposed land so as to protect its natural values.

(2) The [wilderness and natural areas advisory] board or a citizen may propose to the commission land which in its judgment exhibits the characteristics of a wilderness area, wild area or natural area and is suitable for dedication by the commission as such….

99. DNR v. Kiffer, No. 73-3523-CE, Consent Judgment of nov. 25, 1975 (Cir. Ct., Forster, J.). The judgment prohibited the defendant from impounding Bancroft Creek, a high-quality trout stream, without statutory review; required stabilization of all exposed soil; and required placement of stone cobble to facilitate free passage of fish. In general,the DNR has recently begun to apply MEPA affirmatively in its administration of environmental statutes. See text accompanying notes 139-48 infra.

100. This number represents lawsuits in which the Attorney General files suit or intervenes in his own name or on behalf of the people of the State of Michigan. Because the Attorney General's office represents all state agencies, its staff is also involved in all MEPA actions initiated by as well as against state agencies. See generally Note, The Role of the Michigan Attorney General in Consumer and Environmental Protection, 72 Mich. L. Rev. 1030 (1974).

101. See Sax & DiMento, supra note 3, at 26 n. 108. A recent example is People ex rel. Kelley v. Auto-Ion Chemical, Inc. No. B-74-100514-CE, Order of Mar. 12, 1975 (Cir. Ct., McCauley, J.). The defendant processed industrial wastes under the Liquid Industrial Wastes Act, Mich. Comp. Laws Ann. §§ 323.271 et seq. (Supp. 1975), and was allowing wastes to seep into the Kalamazoo River Continued violations of an abatement stipulation led the Water Resources Commission to request the Attorney General to file suit seeking an injunction under MEPA and a $10,000 civil penalty under the recently amended Water Resources Commission Act. See Mich. Comp. Laws Ann. § 323.10(1) (Supp. 1975), discussed in Note, Michigan Water Resources Commission Act Amendments of 1973: A Response to the Federal Water Pollution Control Act Amendments of 1972, 7 U. Mich. J.L. Reform 455 (1974). It is significant that the Attorney General used MEPA to force an immediate solution rather than solely using the otherwise available remedies under the WRC Act. See Mich. Comp. Laws Ann. § 323.3 (Supp. 1975). A permanent injunction was entered prohibiting storage and treatment of any new wastes at the defendant's facility.

102. Johnston, U.S. Allows Polluting Foundry to Stuy Open, Detroit Free Press, May 24, 1974, § C, at 10, col. 5.

103. On the performance of the agency, see Irwin, Michigan Air Pollution Control: A Case Study, 4 U. Mich. J.L. Reform 23 (1970).

104. Mich. Comp. Laws Ann. § 336.26 (Supp. 1975). The company faced imminent bankruptcy. See notes 108-09 infra.

105. The defendant foundry immediately requested the United States Environmental Protection Agency to delay its possible enforcement action under the Clean Air Act, 42 U.S.C. § 1857c-8 (1970). In view of the state prosecution, the EPA declined to act. Detroit Free Press, May 24, 1974, § C, at 10, col. 5.

106. An injunction is available under the Air Pollution Control Commission Act. Mich. Comp. Laws Ann. §§ 336.26-.27 (Supp. 1976). However, § 18 of that Act provides:

The penalties or fines which shall be imposed pursuant to this act upon persons violating any rule shall not be construed as to include any violation which was caused by an act of God, war, strike, riot, catastrophe, or other condition as to which negligence or wilful misconduct on the part of such person was not the proximate cause.

Mich. Comp. Laws Ann. § 336.28 (Supp. 1976).

107. People ex rel. Kelley v. Hillsdale Foundry Co., No. 74-5-511-CE, Decision of Aug. 1, 1974 (Cir. Ct., Kelley, J.) at 17.

108. In re Hillside Foundry Co., No. NK-74-1462 B 9, Decision of Nov. 18, 1974 (Bankruptcy Ct., W.D. Mich., Nims, J.).

109. Detroit Free Press, Dec. 12, 1974, § B, at 7, col. 1.

110. Laws such as MEPA are frequently attacked for preventing the necessary expansion of industry. In this regard, it is interesting to note that a recent survey relative to new industrial location in Midwestern states cited Michigan's "quality of life" as a major factor in business' willingness to move to Michigan. Detroit News, Sept. 24, 1975, § A, at 1, col. 1. Furthermore, the AFL-CIO Industrial Union Department has determined that no industrial plant closings between 1970 and 1974 can be primarily attributed to enforcement of environmental laws. 6 BNA Env. Rep., Current Developments 872 (Sept. 19, 1975). A thorough study by the Council on Environmental Quality supports this conclusion:

It is the relative inefficiency of these plants — they are likely to be older, smaller facilities that were only marginally profitable even without new requirements for environmental controls — that is the major factor in a decision to close rather than modernize. In many cases, then, environmental regulations tend to accelerate already inevitable plant closings.

Council on Environmental Quality, The Environmental Control Industry: An Analysis of Conditions and Prospects for the Pollution Control Equipment Industry 21 (1975). The study emphasizes the economic benefits of pollution control: "[E]nvironmental control-related employment has been one of the relatively few areas of job strength during the recent recession." Id. 1. See generally Council on Environmental Quality, Sixth Annual Report 533-39 (1975).

111. See, e.g., Kelley v. Tannehill & DeYoung, Inc. (Cir. Ct., filed Nov. 4, 1971), discussed in Sax & Conner, supra note 2, at 1027-30; People ex rel. Kelley v. Hillsdate Foundry Co., discussed at text accompanying notes 102-10 supra; People ex rel. Kelley v. Auto-Ion Chemical, Inc., see note 101 supra; see also Sax & DiMento, supra note 3, at 26 n. 108.

112. Kelley v. National Gypsum Co. (Cir. Ct. 1973), discussed in Sax & DiMento, supra note 3, at 26-28.

113. No. 75-75584-CE (Cir. Ct., filed July 30, 1975).

114. Preparation of an environmental impact statement by the defendant prior to development was also requested, but denied, in Irish v. Green, 2 ELR 20505 (Cir. Ct. 1972). See Sax & DiMento, supra note 3, at 29-30, 29 n. 120. See also note 70 supra and text accompanying notes 149-50 infra.

115. On the question of implied dedication of private land to public use, see Seaway Co. v. Attorney General, 375 S.W.2d 923 (Tex. Civ. App. 1964); Gion v. City of Santa Cruz, 2 Cal. 3d 29, 465 P.2d 50, 84 Cal. Rptr. 162 (1970). See Comment, Public Rights and the Nation's Shoreline, 2 ELR 10184 (1972).

116. Mich. Consol. Gas Co. & Consumers Power Co. (Mich. Pub. Serv. Comm'n, Notice of Intervention, filed July 15, 1971) discussed in Sax & Conner, supra note 2, at 1055-58, was also a land-use case in which the Attorney General intervened to raise environmental considerations in a natural gas pipeline location. The case probably had a land-use impact equal to the potential impact challenged in Waytes but it involved a public agency land use decision.

117. See Sax & DiMento, supra note, 3 at 10-13.

118. See Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761, 3 ELR 20167 (1972), noted in 86 Harv. L. Rev. 1582 (1973); Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374, 98 Cal. Rptr. 790, 2 ELR 20049 (1971); Sibson v. State, 115 N.H. 125, 336 A.2d 239, 5 ELR 20300 (1975). See also State v. Dexter, 32 Wash. 2d 551, 202 P.2d 906 (1949), aff'd per curiam, 338 U.S. 863 (1949), discussed in Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 158-59 (1971). Cf. Conservation Council of North Carolina v. Costanzo, 505 F.2d 498, 5 ELR 20028 (4th Cir. 1974).

119. See also Lincoln Township v. Manley Bros., discussed at text accompanying notes 56-64 supra.

120. E.g., the Washtenaw County prosecutor has successfully prosecuted two landfill cases. Washtenaw County Health Dep't v. Barton (Cir. Ct. 1973); Washtenaw County Health Dep't v. Hoover Ball & Bearing Co. (Cir. Ct. 1974). See Sax & DiMento, supra note 3, at 25 n. 101.

121. See, e.g., Kelley v. Tannehill & DeYoung, Inc. (Cir. Ct. 1972), discussed in Sax & Conner, supra note 2, at 1027-30.

122. No. 75-37207-CE (Cir. Ct., filed Sept. 24, 1975).

123. Mich. Comp. Laws Ann. §§ 323.271 et seq. (Supp. 1975). See People ex rel. Kelley v. Auto-Ion Chemical, Inc., discussed at note 101 supra.

124. In re Berlin & Farro Liquid Incineration, Inc., Emergency Order to Cease and Desist (Mich. Dep't of Natural Resources, filed Sept. 16, 1975). The authority for emergency administrative orders to protect the public health and safety is § 92 of the Administrative Procedures Act of 1969, Mich. Comp. Laws Ann. § 24.292 (Supp. 1976).

125. Berlin & Farro Liquid Incinerator, Inc. v. State, No. 75-37187-CE (Cir. Ct., filed Sept. 26, 1975). This suit was withdrawn after the company agreed to go back before the Air Pollution Control Commission with a new waste disposal plan. The Commission rejected the company's proposal, and the company refiled its complaint.

126. See text accompanying notes 56-64 supra.

127. See note 63 supra.

128. See, e.g., Board of Comm'rs of Kalkaska County v. State, discussed at text accompanying notes 66-74 supra which, although not ultimately successful on the merits, illustrates the role of MEPA in providing a forum for local governments.

129. No. 75-18177-AA (Cir. Ct., filed Nov. 1, 1975). The ramifications of the case for state administrative decisions are discussed at text accompanying notes 154-56 infra.

130. Jamens v. Avon Township, No. 72-86880, Decision of Jan. 30, 1975 (Cir. Ct., Kuhn, J.). The trial court agreed with the plaintiff's contention that the township's zoning ordinance was unconstitutional as applied to his property, basing its conclusion in part on the existence of an adjacent landfill.

131. Mich. Comp. Laws Ann. § 24.241 (Supp. 1976).

132. See, e.g., Lakeland Property Owners Ass'n v. Township of Northfield, 2 ELR 20331 (Cir. Ct. 1972), discussed in Sax & Conner, supra note 2, at 1025-27. The nearest that any court has come to using MEPA § 4(2), was in Superior Public Rights, Inc. v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct; Reisig, J.), 6 ELR 20435, where the court observed that some dispute had arisen between the parties as to whether the administrative proceedings before the DNR on the corporate defendant's submerged lands application was a separate hearing or was to be conducted pursuant to § 4(2). Without deciding this question, the court held that the standard of judicial review is de novo in either case.

133. Sax & Conner, supra note 2, at 1054.

134. Mich. Comp. Laws Ann. §§ 24.201 et seq. (Supp. 1976).

135. Mich. Comp. Laws Ann. § 24.306 (Supp. 1976). Section 106 provides:

Except when a statute or the Constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or the order is any of the following:

(a) In violation of the Constitution or a statute.

(b) In excess of the statutory authority or the jurisdiction of the agency.

(c) Made upon unlawful procedure resulting in material prejudice to a party.

(d) Not supported by competent, material and substantial evidence on the whole record.

(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

(f) Affected by other substantial and material error of law.

The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.

136. Superior Public Rights, Inc. v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.), at 21-22, 6 ELR 20435, 20437 (emphasis in original).

137. Mich. Comp. Laws Ann. § 691.1205(2) (Supp. 1976).

138. See Sax & Conner, supra note 2, at 1055 n. 204; Sax & DiMento, supra note 3, at 48 & n. 221.

139. Of course, the DNR and its constituent commissions in several instances have used MEPA to transcend their normal enforcement powers. DNR v. Kiffer, discussed at text accompanying note 99 supra; Irish v. Property Dev. Group, Inc. (Cir. Ct. 1973), see Sax & DiMento, supra note 3, at 11-12; Kelley v. Continental Metallurgical Prod. (Cir. Ct., filed July 21, 1972); Kelley v. Michigan Standard Alloys, Inc., (Cir. Ct., filed Aug, 1, 1972), discussed in Sax & DiMento, supra note 3, at 26 n. 108; Kelley v. Tannehill & DeYoung, Inc. (Cir. Ct. 1972), see Sax & Conner, supra note 2, at 1027-30; People ex rel. Kelley v. Hillsdale Foundry Co., see text accompanying notes 102-10 supra; People ex rel. Kelley v. Auto-Ion Chemical, Inc., see note 101 supra; Water Resources Comm'n v. Chippewa County (Cir. Ct. 1971), see Sax & Conner, supra note 2, at 1020-25.

140. See text accompanying notes 41-43 supra. In the administrative proceeding in one MEPA case, Superior Public Rights, Inc. v. DNR, discussed at text accompanying notes 244-250 infra, the Natural Resources Commission squarely applied MEPA to its activities: "[I]t is the duty of the Department of Natural Resources and the Commission to determine under Act 17, PA 1921, as amended [Mich. Comp. Laws Ann. §§ 299.1 et seq. (1967)]; and [MEPA], whether the contemplated conduct will pollute, impair or destroy the air, water or other natural resources and that no pleadings need be filed to require the agency to implement such duty." In re Lake Superior and Ishpeming R. Co., Order of June 13, 1975 (Mich. Natural Resources Comm'n) at 1.

141. Mich. Comp. Laws Ann. §§ 281.951-.965 (Supp. 1976). The DNR has been criticized for not taking a strong enforcement posture under the Inland Lakes and Streams Act. Detroit Free Press, Aug, 24, 1975, § A, at 3, col. 5; id. Aug. 25, 1975, § A, at 3, col. 6; id., Aug. 26, 1975, § A, at 3, col. 2. There is every reason to believe that Ray and Vanderkloot have embolderied the DNR in its administration of that Act. Departmental policy, as announced in December 1975, declares:

In deciding on whether to issue a permit, the attitude of the Department will be that a project which would be harmful to the environment (or likely to be harmful) should be denied unless the benefits to the public by the project completely outweigh the environmental losses.

Mich. Dep't of Natural Resources, Department Letter No. 140 (Dec. 2, 1975). A legal memorandum accompanying this letter states:

… The tests to be used in determining whether a permit should be issued are environmental tests.

Therefore, the EPA must be read into the provisions of the Inland Lakes and Streams Act, an act which deals directly with one of the most important elements of the environment — the waters of the state. Thus, in considering [whether the proposed project will create] "unlawful impairment or destruction [of the state's natural resources]," the Michigan Environmental Protection Act must be applied.

The definition of "unlawful conduct" under the EPA is very broad, permitting environmentally harmful conduct only if there is no feasible and prudent alternative to such harmful conduct and if defendant's conduct is necessary in the promotion of the public health, safety, or general welfare.

Memorandum Regarding Interpretation on Inland Lakes and Streams Act, 1, 3, 4-5 (Oct. 29, 1975) (citing Ray and Vanderkloot).

142. Applic. No. 74-12-5, Findings of Fact, Interpretations of Law, Conclusions (Mich. Dep't of Natural Resources, April 4, 1975).

143. Mich. Comp. Laws Ann. § 281.957 (Supp. 1976) provides in part:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state.

144. This issue lurked behind the litigation in Tanton v. DNR (Cir. Ct. 1972). See Sax & Conner, supra note 2, at 1039.

145. Mich. Comp. Laws Ann. §§ 24.201 et seq. (Supp. 1976).

146. Proposal for Decision (Mich. Natural Resources Comm'n, Jan. 8, 1976).

147. Mich. Comp. Laws Ann. § 281.955(f) (Supp. 1976).

148. Territorial Enterprises, Inc., Proposal for Decision (Mich. Natural Resources Comm'n, Jan. 8, 1976) at 10. The examiner also cited Michigan State Highway Comm'n v. Vanderkloot, 392 Mich. 159, 184, 220 N.W.2d 416, 427, 4 ELR 20694 (1974) for the proposition that "the substantive aspects of [MEPA] must be addressed in an agency review of activities within its purview." Proposal for Decision at 11. See also Ray v. Mason County Drain Comm'r, 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975).

149. In re Kent County Dep't of Pub. Works, Petition to Intervene (Mich, Dep't of Natural Resources, Oct. 27, 1975). The Kent County Department of Public Works has applied to the DNR to excavate a landfill in a potentially geologically unsafe area that is unable to filter the landfill residue before it reaches the Rogue River, a high quality recreational river. Under the Garbage and Refuse Disposal Act, Mich. Comp. Laws Ann. §§ 325.291 et seq. (Supp. 1975), the DNR must review landfill sites before issuing licenses. Id. § 325.294(1). Because of the potential impact of the landfill, the DNR designated the project a "major state activity" requiring an environmental impact statement under Exec. Order 1974-4, and sought additional testimony by calling a contested case hearing. Following the hearing, the Natural Resources Commission, after declaring that MEPA's substantive standards apply to the landfill, found that the landfill as proposed would in fact pollute nearby groundwater. The Commission, although finding that technological and site alternatives to the landfill location were not available, did determine that design alternatives were feasible and prudent. It then ordered the applicant to install heavy plastic liners for the landfill cells, underlay the cells with impermeable clay, and provide a seven foot separation from the groundwater. In re Kent County Dep't of Pub. Works, Final Order (Mich. Natural Resources Comm'n, Apr. 9, 1976).

150. The Governor's Order established the Environmental Review Board whose purpose is, inter alia, to "assist the Governor in reviewing federal and state environmental impact statements and to identify actions of state agencies that should be suspended or modified if such actions should seriously threaten the quality of the environment or human life." Exec. Order No. 1974-4 (May 3, 1974) at 1. Furthermore, the Governor ordered that

… each agency of State Government forward to my attention an environmental impact statement on each proposed major action within their jurisdiction that may have a significant impact on the environment or human life…. Each statement shall contain the following:

1. A description of the probable impact of the action on the environment, including any associated impacts on human life.

2. A description of the probable adverse effects of the action which cannot be avoided (such as air or water pollution, threats to human health or other adverse effects on human life).

3. Evaluation of alternatives to the proposed action that might avoid some or all of the adverse effects, including an explanation why the agency determined to pursue the action in its contemplated form rather than an alternative.

4. The possible modifications to the project which would eliminate or minimize adverse effects, including a discussion of the additional costs involved in such modifications.

Id. at 2. See also State of Michigan, Guidelines for the Preparation and Review of Environmental Impact Statements (1975). See generally Yost, NEPA's Progeny: State Environmental Policy Acts, 3 ELR 50090 (1973).

151. Its applicability was assumed by the defendant in Payant v. DNR, discussed in Sax & Conner, supra note 2, at 1054. See also Michigan Consol. Gas Co., 1 ELR 36007 (Mich. Pub. Serv. Comm'n 1971), discussed in Sax & Conner, supra note 2, at 1055-57.

152. See Sax & Conner, supra note 2, at 1027-30. See also J. DiMento, Managing Environmental Change: A Legal and Behavioral Perspective (1976).

153. No. 75-18562-NZ (Cir. Ct., filed Sept. 10, 1975).

154. No. 75-18177-AA (Cir. Ct., filed Nov. 1, 1975).

155. Jamens v. Avon Township, No. 72-86880, Decision of Jan. 30, 1975 (Cir. Ct., Kuhn, J.), appeal docketed, No. 23,748 (Ct. App., filed Mar. 31, 1975), discussed at note 130 supra.

156. See Exec. Order No. 1974-4, note 150 supra.

157. Tanton v. DNR, No. 90-3, Decision of Dec. 30, 1972 (Cir. Ct., C. Brown, J.) at 12-13.

158. In Three Lakes Ass'n v. White Sands Bldg. & Dev. Corp., No. 1257 (Cir. Ct., filed Nov. 23, 1973), the court denied the defendant's motion for summary judgment claiming that the plaintiff lacked standing. In the administrative proceeding prior to the litigation in Michigan Oil Co. v. Natural Resources Comm'n, No. 74-16638-AA, Decision of June 4, 1975 (Cir. Ct., T. Brown, J.), appeal docketed, No. 24,747 (Ct. App., July 1, 1975), the oil company objected to the intervention of Pigeon River Country Association on the ground that it did not have standing. The objection was overruled. In re Michigan Oil Co., Hearing Officer's Recommendation at 3 (Mich. Natural Resources Comm'n, Oct. 11, 1973).

159. See note 101 supra.

160. Mich. Comp. Laws Ann. § 691.1202(1) (Supp. 1976). Cf. Warth v. Seldin, 422 U.S. 490 (1975), noted in 9 Suff. L. Rev. 944 (1975).

161. E.g., American Amusement Co. v. County of Shiawasee, No. 5559 (Cir. Ct., filed July 12, 1973), which alleged pollution by a County Drain Commission of a pond adjacent to a county drain. After entry of a restraining order, the parties stipulated to have the Water Resources Commission (WRC) investigate the alleged pollution. The case was then dismissed against the County, and the WRC subsequently found that no pollution existed. The plaintiff voluntarily dismissed the case, without prejudice, on April 23, 1975.

162. WCHD v. Chrysler Corp., 43 Mich. App. 235, 203 N.W.2d 912 (1972). The court, however, denied intervention to private parties because they had not established the inadequacy of representation of their interest by existing parties.

163. The East Michigan Environmental Action Council, Inc. was permitted to intervene in Tanton v. DNR. See Sax & Conner, supra note 2, at 1070 & n. 268. More recently, a township sought to intervene in a condemnation action by Traverse City of a local dock located next to the township in Grand Traverse Bay, citing the following rationale:

… Section five (5) of [MEPA] … expressly authorizes intervention during administrative proceedings or any judicial review thereof. It can hardly be forcefully contended the legislature intended to deny this right where identical environmental issues were originated in the courts, by way of condemnation proceedings or otherwise.

Orr v. Traverse City State Bank, No. 562, Brief in Support of Motion to Intervene oif Elmwood Township (Cir. Ct., filed Feb. 20, 1973) at 27. The intervention was granted and the parties are awaiting trial.

164. Environmental groups are beginning to use administrative interventions in other areas. The Natural Resources Defense Council (NRDC) was recently allowed to intervene in an administrative adjudication concerning General Electric's dumping of polychlorinated biphenyl (PCB) into the Hudson River. The agency found that NRDC had no interest in delaying the proceeding, it could independently seek court review of the administrative decision, and it had shown "good cause." In re General Electric Co., 6 ELR 30001 (N.Y. Dep't of Environmental Conservation, Nov. 19, 1975).

165. In West Michigan Environmental Action Council, Inc. v. Betz Foundry, Inc., No. 14355, Decision of Aug. 3, 1972 (Ct. App., T.M. Burns, R.B. Burns & Fitzgerald, JJ.), the court said: "Although we view Section 5 of [MEPA] as discretionary … the threat of multiple party intervention is an insufficient reason for refusing to allow an interested party to intervene in the administrative proceedings."

166. Territorial Enterprises, discussed at text accompanying notes 146-48 supra.

167. Mich. Comp. Laws Ann. §§ 125.1001 et seq. (Supp. 1976), amending The Trailer Coach Park Act of 1959, Mich. Comp. Laws Ann. §§ 125.1001 et seq. (1967).

168. King Arthur's Court, Inc. v. Milliken, No. 75-17579-CE, Decision of May 15, 1975 (Cir. Ct., Kallman, J.), See Revised Judicature Act of 1961 § 4401, Mich. Comp. Laws Ann. § 600.4401 (1967); Mich. Ct. (Gen.) R. § 714.1(1) (1975).

The mandamus defense has arisen once before, but was not successful. Payant v. DNR (Cir. Ct. 1971), discussed in Sax & Conner, supra note 2, at 1075 n. 292.

169. No. 4-71826, Memorandum and Order of Dec. 18, 1974 (E.D. Mich., DeMascio, J.). The plaintiffs challenged a zoning change which would have allowed a massive shopping center to be built in an otherwise single-family residential neighborhood, alleging likely air pollution from increased automobile traffic. The plaintiffs also claimed that the defendants' action violated local zoning ordinance procedures, the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1970), as amended 42 U.S.C. §§ 4321 et seq. (Supp. VI, 1976), and their procedural due process and equal protection guarantees under the Fourteenth Amendment. The court dismissed the case on the ground that the complaint did not state a federal cause of action, and that the plaintiffs' rights were "dependent upon state statutory procedures, and not upon the construction of '… the constitution, laws or treaties or the United States." Id. at 5. In response to the plaintiffs' allegation that MEPA and other state claims ought to be joined with their federal claim under Rule 18 of the Federal Rules of Civil Procedure, the court said:

Under this rule, however, when jurisdiction is not based upon diversity, each claim must have its own basis for subject matter jurisdiction. The rule, therefore, presumes that at least one of plaintiffs' claims has a proper jurisdictional basis…. Since plaintiffs do not have an independent basis for federal jurisdiction, this concept of pendent jurisdiction has no application.

Id. at 8. The township, however, under substantial citizen pressure, has rescinded its zoning change. The pendent jurisdiction issue is elaborated in Sax & DiMento, supra note 3, at 38-39 n. 168. See generally Comment, Pendent and Ancillary Jurisdiction: Towards a Synthesis of Two Doctrines, 22 U.C.L.A. L. Rev. 1263 (1975).

170. Mich. Comp. Laws Ann. § 691.1202(1) (Supp. 1976).

171. Cases with venue changes are discussed in Sax & DiMento, supra note 3, at 40 n. 175. See also Sax & Conner, supra note 2, at 1072-76.

172. See generally Kratchman, Class Actions in Michigan, 53 Mich. St. B.J. 175 (1974).

173. It has been observed that Wayne County civil cases average 40 months in length before coming to trial. Detroit Free Press, Dec. 26, 1975, § A, at 10, col. 1.

174. Our figures show that approximately one-third of the cases referred to herein as "MEPA cases" are based solely on MEPA.

175. See text accompanying notes 28-29 supra.

176. See text accompanying notes 244-50 infra.

177. It should be noted that although 23 months elapsed between filing and trial of Superior Public Rights, most of this delay is attributable to administrative action not connected to this litigation. Following application in 1973 for a construction permit under the Great Lakes Submerged Lands Act, Mich. Comp. Laws Ann. §§ 322.701 et seq. (1967), the DNR waited 17 months to initiate hearings on the application. Five months later the Natural Resources Commission granted oral argument on the application. Moreover, Army Corps of Engineers permits applied for in May 1973 were not granted until two years later.

178. Even a brief acquaintance with the field of environmental law reveals numerous cases brought by industry to forestall regulations imposed by air and water pollution statutes. E.g., under the Clean Air Act, 42 U.S.C. §§ 1857-58a (1970), the validity of implementation plans originally promulgated in 1970 has been the subject of intense controversy. The Supreme Court recently resolved a sharp conflict among the circuits by holding that the EPA Administrator need not, in approving such plans, consider economic and technical feasibility of emission source compliance with the implementation plans. Union Electric Co. v. EPA, 44 U.S.L.W. 5060, 6 ELR 20570 (June 25, 1976), aff'g 515 F.2d 206, 6 ELR 20259 (8th Cir. 1975). Under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-76 (Supp. IV, 1974), over 200 industries have challenged point source effluent limitations. Comment, National Uniformity Under the Water Act: Two Circuits Uphold EPA's Authority to Issue Effluent Limitations Under § 301, 6 ELR 10008 (1976). Similarly, the Secretary of the Interior's suspension of oil drilling permits in the Santa Barbara Channel after the disastrous 1969 oil blowout was vigorously challenged by industry. Gulf Oil Corp. v. Morton, 493 F.2d 141, 4 ELR 20086 (9th Cir. 1973).

179. See text accompanying note 4 supra.

180. Preliminary injunctions have not been sought in approximately one-third of all MEPA cases. Injunctions are not sought in cases where the environmental harm is not substantial enough to warrant the extreme remedy, or where the plaintiff must collect large amounts of evidence to show the wrongful conduct of the defendant. It should also be noted that temporary restraining orders, which are routinely granted on an ex parte showing of minimal harm, have been requested in only 25 cases.

181. See, e.g., WCHD v. Pressure Vessel Service, Inc. (Cir. Ct., filed Mar. 3, 1975), discussed in note 38 supra. See also Sax & DiMento, supra note 3, at 23-24.

182. See text accompanying note 30 supra.

183. Lakeland Property Owners Ass'n v. Township of Northfield, 2 ELR 20331 (Cir. Ct. 1972), discussed in Sax & Conner supra note 2, at 101-42, 1068-69; MUCC v. Anthony, 3 ELR 20195 (Cir. Ct. 1972); Wilcox v. Board of County Road Comm'rs (Cir. Ct. 1972). See Sax & DiMento, supra note 3, at 44-45.

184. 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975), discussed at text accompanying notes 35-45 supra.

185. No. 203110-R, Decision of Mar. 18, 1972 (Cir. Ct., Moyninan, J).

186. See Sax & DiMento, supra note 3, at 24 n. 95.

187. No. D-5278-W (Cir. Ct., filed Aug. 1, 1972).

188. No. 2216 (Cir. Ct., filed June 26, 1973).

189. No. 90-3, Decision of Dec. 30, 1972 (Cir. Ct., C. Brown, J.), discussed in Sax & Conner, supra note 2, at 1038-41, 1052-53.

190. The developer has apparently decided not to pursue any development plans. He was refused a zoning change that would permit him to strip topsoil for construction. North Woods Call, Jan. 15, 1975, at 9, col. 3. Also, the DNR indicated that his dam construction permit has expired and that an environmental impact statement could be required for approval of a new permit application. Detroit Free Press, April 28, 1975, § A, at 3, col. 1.

191. Irish v. Property Dev. Group, Inc. (Cir. Ct. 1973); Olk v. Desai (Cir. Ct., filed Apr. 10, 1973), discussed in Sax & DiMento, supra note 3, at 46.

192. Crystal Lake Resort Ass'n v. Village of Beulah, No. 807 (Cir. Ct., filed May 8, 1973).

193. No. 3137, Decision of Nov. 29, 1973 (Cir. Ct., W. Brown, J.), discussed in Sax & DiMento, supra note 3, at 14, 32-34.

194. See 395 Mich. 809, 235 N.W.2d 745 (1975) and text accompanying notes 221-25 infra.

195. Anderson v. Michigan State Highway Comm'n, No. 15609-C, Decision of Sept. 4, 1973 (Cir. Ct., Warren, J.). The court of appeals stayed the project. Anderson v. Michigan State Highway Comm'n No. 18198, Decision of Oct. 12, 1973 (Ct. App., MacGregor, Bronson & Carland, JJ.).

196. No. 7-562, Decision of Jan. 22, 1975 (Cir. Ct., Prettie, J.) at 2. See note 263 infra.

197. No. 75-17424-AZ (Cir. Ct., filed Mar. 6, 1975). The case was removed to and decided in federal court. Mid-Shiawasee County Concerned Citizens v. Train, 408 F. Supp. 650 (E.D. Mich. 1976). See note 219 infra.

198. No. 74-619-CE (Cir. Ct., filed July 4, 1974).

199. See text accompanying notes 68-74 supra.

200. No. 5552, Decision of Aug. 24, 1972 (Cir. Ct., Conlin, J.), discussed in Sax & DiMento, supra note 3, at 45.

201. Brotz v. Detroit Edison Co., No. 18146, Decision of Apr. 9, 1975 (P. Ct., Cheever, J.). See notes 262 and 265 infra.

202. People ex rel. Kelley v. Hillsdale Foundry Co., discussed at text accompanying notes 102-10 supra; Szawala v. American Cement Corp., discussed in Sax & DiMento, supra note 3, at 42 and n. 191.

203. No. 849, Decision of June 10, 1971 (Cir. Ct., W. Brown, J.), discussed in Sax & DiMento, supra note 3, at 9 n. 33. The defendant's counteraction and plaintiff's abuse of process action arising out of this litigation are discussed at text accompanying notes 237-41 infra.

204. Alfin E. Bertrand, Inc. v. City of Detroit (one month); Surowitz v. City of Detroit (one month). Both cases are discussed in Sax & Conner, supra note 2, at 1044. McCloud v. City of Lansing (three months), discussed in Sax & DiMento, supra note 3, at 36.

205. The security bond provision of MEPA is discussed further in Sax & Conner, supra note 2, at 1076-80.

206. No. 74-9371-CE (Cir. Ct., filed Sept. 18, 1974).

207. Mich. Comp. Laws Ann. §§ 560.101-.291 (Supp. 1976).

208. Mich. Comp. Laws Ann. § 691.1202a (Supp. 1976). A counterclaim was filed against the plaintiffs, but no judicial action has been taken on that claim.

209. Id. § 691.1205(3) (Supp. 1976).

210. The only instance thus far has been Crystal Lake Resort Ass'n v. Village of Beulah, No. 807 (Cir. Ct., filed May 8, 1973), in which the action was dismissed on res judicata grounds.

211. Some MEPA cases generate related matters that do not raise the relitigation issue, e.g., counteractions, discussed in text accompanying notes 233-41 infra and electric utility condemnation actions in which probate court eminent domain hearings are subject to circuit court review; see Brotz v. Detroit Edison Co., discussed in notes 262 and 265, infra. Blunt v. Apfel, No. 849, Decision of June 10, 1971 (Cir. Ct. W. Brown, J.), is one of a number of cases arising from a condominium development on Torch Lake. See Sax & DiMento, supra note 3, at 9 n. 33. A single circuit judge has heard all the matters, including the latest abuse of process action filed by the environmentalists. See note 241 infra.

Similarly, a coal unloading dock project in Marquette harbor spawned two suits, one challenging the state agency permit, Superior Public Rights, Inc.v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.), 6 ELR 20435, and one attacking municipal rezoning for the project, Superior Public Rights, Inc. v. City of Marquette, No. 75-5927-CE (Cir. Ct., filed Mar. 21, 1975). See text accompanying notes 244-50 infra.

212. See text accompanying notes 68-74 and 153 supra.

213. See Sax & DiMento, supra note 3, at 41-42.

214. In Elsman v. Detroit Edison Co., No. 74-116077-CE (Cir. Ct., filed Sept. 18, 1974), a property owner claims that the transmission line proposed in Brotz v. Detroit Edison Co., discussed in notes 262 and 265 infra, will create an ozone hazard. Also named as defendants are the local township and the Public Service Commission, which allegedly failed to consider environmental harm in approving Edison's proposal. A temporary restraining order issued on September 19, 1974, is still in effect. In the earlier condemnation case, the probate court held that it had no jurisdiction to hear testimony on the environmental effects of the transmission line. In re Detroit Edison Co., No. 111025 (P. Ct., filed Nov. 22, 1972). A similar holding was overruled in Brotz v. Detroit Edison Co., No. 2201, Decision of Dec. 26, 1973 (Cir. Ct., Mahinske, J.).

215. Delta Township v. Eyde, 389 Mich. 549, 208 N.W.2d 168 (1973).

216. 393 Mich. 453, 225 N.W.2d 1 (1975). Plaintiffs alleged that the sewer construction would cause siltation and overfeeding of a small creek flowing through their land. The circuit court held that the earlier condemnation litigation did not bar admission of evidence relating to environmental harm under MEPA. The court then found that the construction would in fact cause water pollution, enjoined the project, and dictated an alternate easement for the sewer. Eyde v. State, No. 73-16107-CZ, Opinion of Apr. 30, 1974 (Cir. Ct., T. Brown, J.). The Supreme Court, reversing the court of appeals, affirmed the circuit court's holding that the prior condemnation proceeding, while res judicata as to traditional in rem objectives, was not a par to the environmental rights protected by MEPA. The court noted that res judicata's purpose of achieving finality could best be served by not dismissing plaintiff's suit since "other persons, not a party to the condemnation proceeding, have the right under [MEPA] to seek an injunction against the drain project as presently planned." Eyde v. State, 393 Mich. 453, 455, 265 N.W.2d 1, 3 (1975).

217. 65 Mich. App. 237, 247, 237 N.W.2d 266, 274 (1975). See text accompanying notes 259-61 infra.

218. No. 15609-C, Decision of Sept. 4, 1973 (Cir. Ct., Warren, J.). See note 195 supra. The federal case, Public Interest Research Group of Michigan v. Brinegar, 517 F.2d 917, 5 ELR 20502 (6th Cir. 1975), upheld a finding that the tree-cutting project requires no impact statement under NEPA and did not violate § 4(f) of the Department of Transportation Act, 23 U.S.C. § 1653(f) (1970). The cutting was substantially complete by the time the Sixth Circuit decided the case, and the remaining trees had succumbed to Dutch Elm disease. Detroit Free Press, Aug. 20, 1974, § A, at 3, col. 1.

219. Mid-Shiawasee County Concerned Citizens v. Tanner, 408 F. Supp. 650 (E.D. Mich. 1976). In the federal case, the plaintiff challenged Michigan DNR and federal EPA construction grant approval of a physical-chemical sewage greatment plant in Owosso, claiming that an environmental impact statement should have been prepared under NEPA to discuss the alternative of land treatment of sewage and that the proposed sewage treatment plant's discharge and disposal of its solid waste would violate MEPA. The EPA, under its regulations, 40 C.F.R. § 6.212 (1973), had issued an "environmental assessment" in lieu of an impact statement. The court upheld this decision:

The environmental assessment reflects a systematic, interdisciplinary approach to insure that no significant environmental factor was overlooked. Each alternative was explored from environmental, social, and aesthetic perspectives.

408 F. Supp. 650, 659 (E.D. Mich. 1976). As to plaintiff's claim that the construction grant decision violated MEPA, the court said:

The record in this case does not disclose that DNR's conduct in either consulting with EPA on issuance of the negative declaration or approving federal and state aid "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 Owosso project promises compliance with NPDES criteria [under the Federal Water Pollution Control Act Amendments of 1972] and state air pollution standards, and plaintiff has produced no evidence to the contrary.

Nos. 5-40016 and 5-71876, Decision of Jan. 23, 1976 (E.D. Mich., Joiner, J.) at 39. (edited in F. Supp.). Mid-Shiawasee had the potential of challenging a massive water pollution abatement scheme of the DNR, somewhat like an earlier MEPA case, and faced similar obstacles of gathering the technical evidence necessary to prove the land treatment system would be superior to the proposed conventional system. See Marble Chain of Lakes v. WRC, discussed in Sax & Conner, supra note 2, at 1019 n. 71. Another earlier MEPA case involved the implementation of the pioneer land treatment system. Muskegon County v. Environmental Protection Org. (Cir. Ct. 1971), discussed in Sax & Conner, supra note 2, at 1035-37.

Complete adjudication on the merits of a MEPA case in federal court has not yet occurred. See Sax & DiMento, supra note 3, at 38-39 n. 168; note 169 supra. For exemple, Muskegon Save Our Shoreline, Inc. v. North Star Steel Co., No. G75-461-CA (W.D. Mich., filed Sept. 29, 1975), challenged the proposed construction of a steel mill on the shore of Muskegon Lake on the ground that anticipated increases in air, water, noise, and aesthetic harm would contravene a public and private consensus that Muskegon Lake ought to be upgraded as an important regional resource. In addition to MEPA, plaintiffs alleged causes of action under NEPA, 42 U.S.C. §§ 4321 et seq. (1970), the Rivers and Harbors Act, 33 U.S.C. §§ 401 et seq. (1970), the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 et seq. (Supp. IV, 1974), the Inland Lakes and Streams Act of 1972, Mich. Comp. Laws Ann. §§ 281.951 et seq. (Supp. 1975), the Great Lakes Submerged Lands Act, Mich. Comp. Laws Ann. §§ 322.701 et seq. (1967), and local ordinances. One month after the case was filed, the defendant announced that it would consider other sites, apparently because construction had to begin before the time that the Army Corps of Engineers could issue necessary permits. Michigan Out-of-Doors, Dec. 1975, at 12, col. 3.

220. Mich. Comp. Laws Ann. § 691.1203(3) (Supp. 1976). See generally Gaulden, Attorney's Fees, Costs and Expenses in Public Interest Litigation, 53 Mich. St. B.J. 355 (1974).

221. No. 3137, Decision of Nov. 29, 1973 (Cir. Ct., W. Brown, J.).

222. See Sax & DiMento, supra note 3, at 33-34.

223. No. 3137, Decision of May 23, 1974 (Cir. Ct., W. Brown, J.) at 2.

224. No 3137, Motion for Reconsideration by the Court of Decision to Award Costs and For the Award of Attorney Fees, Record of July 19, 1974, (Cir. Ct., W. Brown, J.) at 11. The court also declared that it had no continuing jurisdiction to award attorneys' fees, even though it was aware of the private attorney general doctrine. Id. at 17-18.

Attorneys' fees have been awarded under the private attorney general doctrine in litigation under the California Environmental Quality Act of 1970, Cal. Pub. Res. Code §§ 21000 et seq. (West Supp. 1976). Rich v. City of Benicia, 5 ELR 20205 (Super. Ct., Calif., Nov. 7, 1974).

225. Taxpayers & Citizens in the Public Interest v. State, 395 Mich. 809, 235 N.W.2d 745 (1975).

226. Taxpayers & Citizens in the Public Interest v. State, No. 23011, Opinion of Aug. 3, 1976 (Ct. App., Burns, Kelly & Hughes, JJ.).

227. Mich. Ct. (Gen.) R. 526.1. See note 231 infra.

228. City of Berkley v. Holmes, 34 Mich. App. 417, 191 N.W.2d 561 (1971).

229. No. 73-15852-CE, Decision of Mar. 2, 1976 (Cir. Ct., Reisig J.) at 53. But see MEPA § 3(3), Mich. Comp. Laws Ann. § 691.1203(3) (Supp. 1976).

230. 421 U.S. 240, 5 ELR 20286 (1975), noted in 9 Akron L. Rev. 382 (1975); 9 Creighton L. Rev. 422 (1975); 6 Cumberland L. Rev. 481 (1975); 4 Fordham Urb. L.J. 211 (1975); 7 Loy.-Chi. L.J. 277 (1976); 35 Md. L. Rev. 675 (1976); 7 N.C. Cent. L.J. 187 (1975); 35 Neb. L. Rev. 283 (1976); 36 Ohio St. L.J. 201 (1975); 29 Sw. L.J. 767 (1975); 7 Texas Tech L. Rev. 122 (1975); 11 Tulsa L.J. 420 (1976); 44 U. Cin. L. Rev. 873 (1975). See generally King & Plater, The Right to Counsel Fees in Public Interest Environmental Litigation, 41 Tenn. L. Rev. 27 (1973); Mayer & Stix, The Prevailing Party Should Recover Counsel Fees, 8 Akron L. Rev. 426 (1975); Comment, The Discretionary Award of Attorney's Fees by the Federal Courts: Selective Deviation from the No-Fee Rule and the Regrettably Brief Life of the Private Attorney General Doctrine, 36 Ohio L.J. 588 (1975).

Several bills introduced in Congress in the wake of Alyeska would amend federal law either to allow fee-shifting or to provide government funding of attorneys' fees in environmental litigation. S. 2715, H.R. 7825, 7829, 7968, 8218, 8222, 8743, 94th Cong., 1st Sess. (1975).

231. Svensson v. Whitehall Leather Co., No. C21-AV, Judgment of May 28, 1974 (Cir. Ct., Schoener, J.) at 1. The statute to which the court refers reads:

The following items may be taxed and awarded as costs unless otherwise directed:

(6) Any attorney fees authorized by statute or court rule.

Revised Judicature Act § 2405, Mich. Comp. Laws Ann. § 600.2405 (1967). The court rules provide:

In any action or proceeding, costs shall be allowed as a matter of course to the prevailing party, except when express provision therefor is made either in a statute or in these Rules, or unless the court otherwise directs, for reasons stated in writing and filed in the cause.

Mich. Ct. (Gen.) R. 526.1.

232. Territorial Enterprises, Inc., Proposal for Decision (Mich. Natural Resources Comm'n, Jan. 8, 1976) at 14. The examiner, while recognizing the MEPA provision for apportionment of costs, found that such an apportionment would not be in the interest of justice since neither party had completely prevailed. Id.

233. The counteraction threat has begun to receive attention by the commentators. See Note, Counterclaim and Countersuit Harassment of Private Environmental Plaintiffs: The Problem, Its Implications, and Proposed Solutions, 74 Mich. L. Rev. 106 (1975); Comment, Sierra Club. v. Butz: Industry Fights Back, 5 Env. L. 311 (1975).

234. Apfel v. Cook, No. 926, Decision of June 22, 1973 (Cir. Ct., Brown, J.), discussion in Sax & DiMento, supra note 3, at 22-23. The court in Apfel appeared to follow the rationale of Sierra Club v. Butz, 349 F. Supp. 934, 2 ELR 20698 (N.D. Cal. 1972), which held that plaintiffs such as those in MEPA cases are protected by the First Amendment right to petition the government for redress of grievances, except under the strongest circumstances of sham.

235. Superior Public Rights, Inc. v. City of Marquette, No. 75-5927-CE (Cir. Ct., filed Mar. 21, 1975).

236. Official Proceedings of the Marquette City Comm'n, Mar. 31, 1975, at 36-37.

237. Apfel v. Cook, No. 926, Decision of June 22, 1973 (Cir. Ct. W. Brown, J.), discussed in Sax & DiMento, supra note 3, at 22-23.

238. No. 74-25272-NO, Decision of Oct. 11, 1974 (Cir. Ct., Ryan, J.), interlocutory leave to appeal applied for, No. 22948 (Ct. App., Nov. 21, 1974).

239. Three Lakes Ass'n v. Whiting, No. 74-1398-NO, Decision of Jan. 15, 1975 (Cir. Ct., W. Brown, J.), appeal docketed, No. 23615 (Ct. App. Mar. 25, 1975).

240. Blunt v. Apfel (Cir. Ct. 1971), discussed in Sax & DiMento, supra note 3, at 9 n. 33, Sax & Conner, supra note 2, at 1049-50.

241. Three Lakes Ass'n v. Whiting, No. 74-1398-NO, Decision of Jan. 15, 1975 (Cir. Ct., W. Brown, J.), appeal docketed, No. 23615 (Ct. App., Mar. 25, 1975). Judge Brown gave three reasons for his decision: (1) the newly-filed, amended complaint differed only slightly from the original complaint and the plaintiffs were merely seeking to relitigate the Wayne County decision; (2) following Tanner v. Armco Steel Corp., 340 F. Supp. 532, 2 ELR 20246 (S.D. Tex. 1972), "neither the first, fifth or fourteenth amendments to the United States Constitution nor the statutes cited purports [sic] to confer individual rights against acts by other individuals;" and (3) again citing Tanner, the plaintiffs could not rely on Michigan constitutional provisions which had not been implemented by appropriate legislation.

242. See text accompanying notes 39-40 and 113-19 supra.

243. Taxpayers & Citizens in the Public Interest v. State, No. 3137, Decision of Nov. 29, 1973 (Cir. Ct., W. Brown, J.) had potential for an advancement of the public trust doctrine, but held that the disputed acre-sized parcel of shoreland was not sufficiently impressed with a public trust. See Sax & DiMento, supra note 3, at 32-34. For Michigan public trust cases, see People ex rel. Director of Conservation v. Broedell, 365 Mich. 201, 112 N.W.2d 517 (1961); Obrecht v. National Gypsum Co., 361 Mich. 399, 105 N.W.2d 143 (1960); People ex rel. Director of Conservation v. Babcock, 38 Mich. App. 336, 196 N.W.2d 489 (1972); Township of Grosse Ile v. Dunbar & Sullivan Dredging Co., 15 Mich. App. 556, 167 N.W.2d 311 (1969).

See generally Cohen, The Constitution, the Public Trust Doctrine and the Environment, 1970 Utah L. Rev. 388; Jaffee, The Public Trust Doctrine is Alive and Kicking in New Jersey Tidalwaters: Neptune City v. Avon-By-The-Sea, A Case of Happy Atavism? 14 Nat. Res. 309 (1974); Nanda & Ris, The Public Trust Doctrine: A Viable Approach to International Environmental Protection, 5 Ecology L.Q. 291 (1976); Olson, The Public Trust Doctrine: Procedural and Substantive Limitations on the Government Reallocation of National Resources in Michigan, 1975 Det. C. L. Rev. 161; Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970); Comment, California's Tidelands Trust for Modifiable Public Purposes, 6 Loy.-L.A. Rev. 485 (1973); Comment, The Mississippi Public Trust Doctrine: Public and Private Rights in the Coastal Zone, 46 Miss. L.J. 84 (1975); Note, Expanding the Definition of Public Trust Uses, 51 N.C.L. Rev. 316 (1972); Note, The public Trust in Tidal Areas: A Sometimes Submerged Traditional Doctrine, 79 Yale L.J. 762 (1970).

244. No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.), 6 ELR 20435.

245. As currently formulated, public trust theory requires only that private acquisition of protected lands must be subject to substantial procedural restrictions. See Sax, supra note 243, at 561-63.

246. 361 Mich. 399, 105 N.W.2d 143 (1960).

247. Superior Public Rights, Inc. v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.) at 27, 6 ELR 20435, 20437.

248. Id. at 31. The court went to great lengths to justify this pollution-with-the-left-hand to stop pollution-with-the-right-hand argument by emphasizing the balancing process that must occur if environmental restrictions are not to immobilize industrial society. Id. at 28.

249. Id. at 31. See Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892).

250. Superior Public Rights, Inc. v. DNR, No. 73-15852-CE, Opinion of Mar. 2, 1976 (Cir. Ct., Reisig, J.) at 50-51.

251. Applic. No. 74-12-5, Findings of Fact, Interpretation of Law, Conclusions (Mich. Dep't of Natural Resources, Apr. 14, 1975). The case is described at text accompanying notes 142-44 supra.

252. Mich. Comp. Laws Ann. §§ 281.951 et seq. (Supp. 1976).

253. Id.

254. Id. § 691.1205(2).

255. Lake Doster Dev. Co., Applic. No. 74-12-5, Findings of Fact, Interpretations of Law, Conclusions (Mich. Dep't of Natural Resources, Apr. 14, 1975) at 6.

256. The DNR's decision in Lake Doster contrasts sharply with its attitude in Tanton v. DNR, No. 90-3, Decision of Jan. 18, 1973 (Cir. Ct., C. Brown, J.), in which the DNR Director considered the fact that the stream at issue in the case was not in the public trust and that he consequently was prevented from acting to protect it. Sax & Conner, supra note 2, at 1039 n. 136.

257. 380 F. Supp. 11, 4 ELR 20573 (D. Minn. 1974), modified sub nom. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 5 ELR 20596 (9th Cir. 1975). the court of appeals for the Eighth Circuit found that violations of state and federal pollution laws existed, but in balancing the equities the court decided that Reserve should be given a "reasonable time" to abate the hazards to human health by implementing an on-land disposal plan for its taconite tailings and installing air emission controls. 514 F.2d at 535-39, 5 ELR at 20616. See Comment, Projected Environmental Ham: Judicial Acceptance of a Concept of Uncertain Risk, 53 J. Urb. L. 497, 519 (1976); Note, Reserve Mining — The Standard of Proof Required to Enjoin an Environmental Hazard to the Public Health, 59 Minn. L. Rev. 893 (1975); Note, Reserve Mining Company v. Environmental Protection Agency: Probable Injury and Balancing Equities — What Constitutes Acceptable Proof, 1975 Det. C.L. Rev. 335; Note, 1975 Utah L. Rev. 581.

258. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d at 538, 5 ELR at 20617. The prohibition was implicit. The court asserted that Minnesota must assume the obligation of dealing with Reserve.

259. 65 Mich. App. 237, 247, 237 N.W.2d 266, 274 (1975).

260. The court held, however, that the state was not preempted from regulating, or its courts from adjudicating, nonradiological hazards emanating from radiological sources. Id. at 247-49, 237 N.W.2d at 274-75. The court read Minnesota v. Northern States Power Co., 405 U.S. 1035 (1972), aff'g 447 F.2d 1143, 1 ELR 20451 (8th Cir., 1971), noted in 13 B.C. Ind. & Com. L. Rev. 813 (1972), "as holding that state control over construction and operation is prohibited only as to radiation hazards." Id. at 252, 237 N.W.2d at 277.

The court also determined that the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1970) did not necessarily protect the entire range of state interests adequately, citing four reasons:

(1) the differing nature of state court and Federal agency deliberations; (2) the necessity for state courts to provide a forum for the adjudication of state common law rights; (3) the fact that a license granted by a Federal Agency is a permit, not a Federal order to build; (4) the authority of United States Supreme Court cases where the Court upheld state court actions which effectively blocked or penalized a party exercising a Federally granted license.

Marshall v. Consumers Power Co., 65 Mich. App. at 256, 237 N.W.2d at 279.

261. 65 Mich. App. at 247, 237 N.W.2d at 275. The principal reason stated for the court's hesitance was that the plaintiff had failed to state a cause of action under MEPA:

While the act's protections encompass many areas of common law nuisance, we find that plaintiff's complaint sounds only in nuisance. The fogging of the air and loing of roads cannot, consistent with the purposes of MEPA, be considered "pollution, impairment or destruction" of any natural resource.

Id. at 264, 237 N.W.2d at 282-83.

262. The decision on remand in Brotz v. Detroit Edison Co. held "[t]hat the towers and conductors which Edison proposes to build may offend the aesthetic sensibilities of the property owners does not alone amount to a violation of [MEPA]." In re Detroit Edison Co., No. 18146, Decision of April 9, 1975 (P. Ct., Cheever, J.) at 49. The relationship of MEPA to aesthetic regulation is discussed in Sax & DiMento, supra note 3, at 17-19. See also Bockrath, Aesthetics and Condemnation Awards: Problems in Preserving the Aesthetic Environment Through Eminent Domain, 7 Nat. Res. Law. 621 (1974); Broughton, Aesthetics and Environmental Law: Decisions and Values, 7 Land & Water L. Rev. 451 (1972); Note, Beyond the Eye of the Beholder: Aesthetics and Objectivity, 71 Mich. L. Rev. 1438 (1973).

263. In Gange of Lakes Environmental Org. v. Gee, No. 7-562, Opinion of Jan. 22, 1975 (Cir. Ct., Prettie, J.) at 9, plaintiff's waterfowl ecology expert testified that "this project would not result in a greatly significant reduction of waterfowl habitat in the state; but that the cumulative affect [sic] of this and many other similar projects would have a significant result." In ruling that plaintiff had failed to prove a prima facie case under MEPA, the court foreclosed the possibility of balancing this habitat evidence against the agricultural benefits allegedly to be conferred by the project. Testimony at trial indicated that the challenged drainage cleaning would increase the arability of much of the farmland in the 16,184 acre Gang of Lakes watershed. Id. at 12.

264. See text accompanying notes 149-50 and 156 supra.

265. The probate court in Brotz v. Detroit Edison Co. held:

Due to the terrific disparity between the cost of underground construction versus overhead construction the Court is of the opinion that both as of the time this line was planned, that is the late 1960's, and as of the present time, underground construction was and is not a feasible or prudent alternative to overhead construction.

In re Detroit Edison Co., Decision of April 19, 1975 (P. Ct., Cheever, J.) at 43. This defense was raised in Lincoln Township v. Manley Bros., discussed at text accompanying notes 56-64 supra, but not decided by the court. Economic infeasibility alone has been held not to satisfy the "no feasible and prudent alternative" provision of § 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) (Supp. 1976). Coalition for Responsible Regional Dev. v. Brinegar, 518 F.2d 522 (4th Cir. 1975).

6 ELR 50067 | Environmental Law Reporter | copyright © 1976 | All rights reserved