At the very end of the 2010 term of the lame duck Democratic majority, the Michigan Supreme Court issued its 4-3 decision in Anglers of the AuSable v DEQ and provided a significant victory for Michigan environmentalists.

The decision has huge implications. Much of Michigan’s environmental law is contained in the Natural Resources and Environmental Protection Act (NREPA). Most of the statute concerns administrative regulation and permitting for protected activities (Wetlands, Inland Lakes & Streams, etc.) The meat for litigators is the Michigan Environmental Protection Act (MEPA), part 17 of NREPA. This is an overlay provision giving individuals a right to file suit to prohibit conduct which is polluting, impairing or destroying natural resources (or is likely to do so).

The Court made two holdings to significantly empower environmental enforcement litigation. First, the Court held that the DEQ may be sued directly for its actions in issuing a permit. Prior court decisions had restricted review of DEQ permitting decisions by holding that such decisions were not challengeable outside of the administrative permitting process.

Second, the Court held that the traditional tests of standing do not apply in a MEPA action. Rather, the statute is to be enforced as written and “any person” may file a MEPA action to seek a prohibition on alleged illegal conduct.

Given the very broad sweep of the holding and the Republican’s new majority, I wouldn’t bet on this decision being left intact for long.

Midland Michigan business, real estate, construction and  commercial lawyer W. Jay Brown provides experienced representation of businesses and individuals throughout Mid- Michigan