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Is the Court playing politics with wastewater?

On April 25, 2011, in a case illustrating the partisan politics played in the Michigan Supreme Court, the Court issued a 4 to 3 decision to dismiss an environmental protection act case and vacate that Court’s December 2010 decision in […]


On April 25, 2011, in a case illustrating the partisan politics played in the Michigan Supreme Court, the Court issued a 4 to 3 decision to dismiss an environmental protection act case and vacate that Court’s December 2010 decision in the same matter on the ground that the case was “moot.”

In AuSauble Angelers v. Michigan Department of Environmental Quality, Docket Numbers 1388663-66, 4 members of the Court voted to reverse and vacate its prior decision on the ground that the MDEQ’s grant of a permit to company responsible to clean up of a plume of contamination to discharge the wastewater from the clean up project into a creek which feeds the AuSauble River was moot where the company changed its clean up plan, gave up its right of access to the creek and began to handle the contaminated water in another way during the time that the case was on appeal from a trial court decision against the MDEQ and the company responsible to clean up the pollution.

In its first decision in December of 2010, the then 4 member Democratic majority of the Court had overruled a 2004 Michigan Supreme Court ruling which had found that a court lacked jurisdiction under Michigan’s Environmental Protection Act to rule upon the validity of a permit issued by the MDEQ [in that case, for a sand mining operation]. This is the case known as “Preserve the Dunes.” The 4 member majority’s opinion also included a 2 sentence footnote which observed that the company’s change in its clean up plan to no longer discharge the wastewater into the creek did not make the case moot because the trial court had “left the door open” to allow the company to again discharge to the creek, albeit at a lower or reduced level. The then 3 member minority of the Court dissented and said that the majority’s decision was “lawless” and that the case was moot because of the change in the clean up plan.

In January of 2011, the composition of the Court changed: the former 3 Justice Republican minority became a 4 Justice majority as a result of the November 2010 election of Justice Mary Beth Kelly and the January 2011 appointment of Justice Zahra to replace Justice Corrigan who resigned to take another position in state government. The company involved in the clean up project then filed a motion for reconsideration of the December 2010 ruling.

New Chief Justice Young and Justice Zahra wrote statements in support of the Court’s order to vacate its prior decision on the ground that the case was moot. Two other justices [Mary Beth Kelly and Markman] voted with them. Three members of the former majority disagreed. Justice Zahra’s separate statement included a lengthy discussion about a court’s power to grant a rehearing. It is anticipated that parties in other cases dissatisfied with a court’s ruling will rely upon Justice Zahra’s analysis when they ask a court to reconsider and change a prior opinion. This decision also illustrates the impact of a judicial election and the judicial appointment process upon decisions of the Michigan Supreme Court.

For more information, please contact Michael Perry at mperry@fraserlawfirm.com.