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Michigan Supreme Court Re-Opens Door to Collateral Permit Challenges on Environmental Concerns

February 15, 2011

In a ruling that could lead to new challenges to the issuance of discharge and other permits, Michigan's Supreme Court recently upheld a challenge to a planned discharge of partially treated water from an environmental cleanup in the Manistee River watershed to the headwaters of the AuSable River. See Anglers of the AuSable, Inc. v. Department of Environmental Quality, ___ NW2d ___ (Mich), December 29, 2010. The ruling addresses two issues of interest to holders of discharge permits, and affirmed that courts should take a liberal view of the broad right to bring suit (i.e. standing) granted under MEPA.

First, it appears to create what the dissenting justices called a "categorical rule" that any amount of contaminants discharged from one watershed into a different, uncontaminated watershed is per se unreasonable (and therefore unable to be permitted). Such a rule could have a widespread impact on many large-scale operations and remediation efforts, where water is withdrawn from one watershed and discharged to another.

The second issue the court addressed was whether DEQ's issuance of a permit could be challenged outside the administrative review process based on allegations that the permit authorized environmentally harmful activities. Reversing existing precedent, the court held that DEQ could be a defendant in a MEPA action that challenged a permitting decision based on impacts to the environment from the permitted activity. This portion of the ruling potentially opens the door to challenges to permitting decisions outside of the usual administrative process, and even long after the permit has been in place.

The Michigan Attorney General has announced that his office will file a motion for rehearing on the basis that the case is moot and that the existing permit appeal process is the proper forum for addressing citizen concerns.

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