Michigan Environmental Protection Act

MLUI

Citizens relied on MEPA to produce such stirring public interest victories as halting Shell Oil’s plan to indiscriminately drill for oil and natural gas in the Pigeon River Country State Forest in the late 1970s.

Two years after the Michigan Supreme Court ruled on two cases involving industrial development, a review of new environmental cases by the Great Lakes Bulletin News Service reveals that the Court's decisions are forcing lawyers to change how they use a seminal, 36-year-old state law designed to protect the environment.

In the 1970s and 1980s, environmental advocates and their lawyers looked to that statute, the Michigan Environmental Protection Act, as the central legal tool for protecting the state's air, water, land, and natural resources. MEPA allows any person to bring a lawsuit to protect natural resources, and requires state and local governments to consider the effects of their actions on the environment and promote less damaging alternatives.

Citizens used MEPA to produce such public interest victories as halting Shell Oil’s plan to indiscriminately drill for oil and natural gas in the Pigeon River Country State Forest in the late 1970s. Other MEPA-based victories include blocking Mason County from dredging damaging new channels in a river in 1975, and forcing developers to comply with environmental standards in building condominiums along Lake Michigan in Manistee in the late 1990s.

Those courtroom victories, and others, established MEPA as a guide for the Legislature as it designed, approved, and enforced new statutes that established Michigan’s environmental protection program. Environmental advocates tested the new laws, which were meant to clean the air, clear the waters, safeguard habitat, and protect public health, in court. But they also relied heavily on MEPA to strengthen their arguments. Its proven safeguards served as an important backstop for many cases, say environmental attorneys.

But two years ago, in separate cases involving hard-rock mining in the Upper Peninsula and sand mining near Lake Michigan, the state Supreme Court’s decisions significantly limited MEPA's scope. In the first ruling, the court strongly indicated it was ready to severely diminish the public’s use of MEPA as a legal tool. In the second, the court explicitly ruled out the use of MEPA to challenge many decisions by state regulatory agencies, a decision that seriously hinders citizens from confronting polluters and those state agencies.

Environmental attorneys, including MEPA’s author, say the court’s rulings seemed to deliberately thwart the law’s intent and essentially marginalized it.

“The 2004 decisions are not at all consistent with what the Legislature had in mind, and the court just ignored that. It was just wrong, ” said Joseph Sax, a law professor at the University of California in Berkeley who, as a professor at the University of Michigan Law School, drafted the language of the environmental protection statute in 1969 and worked for its passage.

A Pioneering Legal Step
MEPA, approved in 1970, was a pioneering law designed to provide citizens with broad power to bring court actions to prevent “pollution, impairment, or destruction” of natural resources. The law was the first in the nation to lay out the legal basis for protecting natural resources and turned ordinary citizens into environmental prosecutors.

The 128-word statute was based on the plainly evident ideas that natural resources mattered, the Legislature needed to fashion new laws to safeguard those resources, and the courts must enforce those laws.

Citizens and their lawyers immediately began to use MEPA to halt serious harm to natural resources. In 1976, Bloomfield Hills-based environmental lawyer Jeffrey Haynes found that public officials, environmental groups, and citizen groups filed 119 cases under MEPA between 1970 and 1976, winning 47 of the 81 cases completed by that time.

Citizen groups continued to use the statute as the foundation of their courtroom efforts after its initial successes, filing hundreds more lawsuits by 1985, according to an article by Traverse City attorney Jim Olson. By this time the Legislature had passed new statutes, such as the 1976 Sand Dune Protection and Management Act and the Wetland Protection Act of 1979, to protect the state’s natural resources.