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Third Party Challenges to DEQ Permits -- An Update on Anglers of the AuSable, Inc. v DEQ

April 28, 2011

In an important decision affecting the rights of third parties to challenge Michigan environmental permitting decisions, the Michigan Supreme Court issued an Order in April vacating its December 29, 2010 Order in Anglers of the AuSable, Inc. v DEQ. The December ruling had raised concerns that it would allow collateral challenges to the granting of DEQ permits outside of, and perhaps even long after the time for, the administrative contested case process. The December Order had overturned the court's earlier decision in Preserve the Dunes, Inc. v. DEQ, 471 Mich 508 (2004). That case had held that such collateral challenges to issued permits could not be brought under the Michigan Environmental Protection Act, or MEPA.

The AuSable case involved a proposed discharge by the defendant to the headwaters of the AuSable River that required an easement over state land. The permit was challenged by third-party plaintiffs, but the defendant had already quitclaimed the easement back to the state and abandoned its planned discharge by the time the case reached the Supreme Court. So in April, on rehearing, the court vacated the December Order on the grounds that the issues raised in the case were moot. While this suggests rather narrow, technical grounds for the reversal, the concurring opinions made it clear that they continue to support the decision in Preserve the Dunes and a limited role for MEPA. The various concurring and dissenting opinions from both wings of the court make clear that the fundamental philosophical split on the court over the role of MEPA continues unabated, and it appears that the stability of these cases may be determined by judicial elections rather than judicial precedent.

For additional information on this or other water law topics, please contact a member of Varnum's Water Law Group and visit our Water Marks blog site at: http://tinyurl.com/WaterMarksBlog

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