Opinion
SC 159033 COA 341310
07-28-2022
LAKESHORE GROUP, CHARLES ZOLPER, JANE UNDERWOOD, LUCIE HOYT, WILLIAM REININGA, KENNETH ALTMAN, DAWN SCHUMANN, GEORGE SCHUMANN, MARJORIE SCHUMANN, and LAKESHORE CAMPING, Plaintiffs-Appellants, v. STATE OF MICHIGAN, Defendant, and DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant-Appellee.
Court of Claims: 17-000140-MZ
Bridget M. McCormack, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch, Justices
ORDER
On April 6, 2022, the Court heard oral argument on the application for leave to appeal the December 18, 2018 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
BERNSTEIN, J. (concurring).
Michigan has an expansive statutory scheme to protect the state's environment and natural resources, which is known as the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq. The NREPA contains several subsections that are intended to regulate different aspects of the environment. Two NREPA subsections are at issue here: the Michigan environmental protection act (MEPA), MCL 324.1701 et seq., and the sand dunes protection and mining act (SDPMA), MCL 324.35301 et seq.
As the dissent notes, MEPA is of vital importance to Michigan, particularly given the constitutional directive to "provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction." Const 1963, art 4, § 52. Like Justice WELCH, I am troubled by some of the uncertainty and inconsistency in the interpretation of MEPA. However, there are a few reasons why this case does not present the proper vehicle for resolving those issues.
At issue in this case is plaintiffs' MEPA challenge to permits authorized by the Department of Environmental Quality (DEQ) for a plan to convert part of a critical dune area into a residential development. But these permits were issued under the SDPMA, not MEPA. Although the SDPMA does not outright say that it provides the exclusive pathway to challenging permits granted under its provisions, MEPA does not appear to offer an alternate route to challenging SDPMA permits.
The DEQ is now known as the Department of Environment, Great Lakes, and Energy. Executive Order No. 2019-02.
First, the SDPMA places restrictions on who may challenge a permit. Contrast language in MEPA, which allows broad challenges by asserting that "any person may maintain an action," MCL 324.1701(1), against language in the SDPMA, which explains that "an applicant for a permit or . . . the owner of the property immediately adjacent to the proposed use [who] is aggrieved by a decision of the department in regard to the issuance or denial of a permit" may request a hearing, MCL 324.35305(1). The SDPMA thus limits those who may challenge a permit granted by the DEQ solely to property owners who are both immediately adjacent to the proposed use and who are aggrieved by the DEQ's decision. This is far more restrictive than the "any person" language used in MEPA.
Second, the SDPMA and MEPA also differ in noting what body first reviews challenges to permits. MEPA states that circuit courts have original jurisdiction. MCL 324.1701(1). But when SDPMA permits are challenged, a "hearing shall be conducted by the [DEQ] as a contested case hearing in the manner provided for in the [Administrative Procedures Act, MCL 24.201 et seq.]" MCL 324.35305(1).
Third, the standards of review in both subsections differ. The standard of review described in MEPA appears to favor permit challengers, and it explains that review is "for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction." MCL 324.1701(1) (emphasis added). But the standard of review under the SDPMA appears to favor development, and it states that all permits "shall be approved unless . . . the [DEQ] determines that the use will significantly damage the public interest on the privately owned land ...." MCL 324.35304(1)(g) (emphasis added).
MEPA and the SDPMA both outline procedures dictating how DEQ-granted permits may be challenged. However, the procedures outlined under each subsection are significantly different from one another. When read together, it appears that MEPA provides general authorization for challenging a permitting decision, while the SDPMA provides specific authorization to challenge permitting decisions made under the SDPMA. Accordingly, we apply the well-established canon of statutory interpretation that holds that, in the event of a conflict, the more specific provision controls over the more general one. RadLAX Gateway Hotel, LLC v Amalgamated Bank, 566 U.S. 639, 645 (2012) (explaining that the canon has full application to statutes "in which a general authorization and a more limited, specific authorization exist side by side"); TOMRA v Dep't of Treasury, 505 Mich. 333, 350 (2020). Because the SDPMA presents the more specific pathway to challenging permits authorized under the SDPMA and MEPA does not expressly state that an individual may use MEPA provisions to challenge SDPMA permits, plaintiffs' MEPA action must fail. Otherwise, MEPA would seemingly create a workaround through which: (1) the statutory restrictions on who may challenge SDPMA permits would be rendered meaningless; (2) no permit challengers would be motivated to file their challenges within the DEQ as the SDPMA requires, if they could get a more favorable standard of review by raising a MEPA challenge; and (3) the DEQ's expertise, which the SDPMA appears to rely on by requiring SDPMA permit challenges to originate within the DEQ, would be absent from the circuit court's primary review of the record.
Although MEPA contains a provision that says, "This part is supplementary to existing administrative and regulatory procedures provided by law," MCL 324.1706, this is hardly evidence that MEPA could provide an entirely different route for challenging SDPMA permits. MEPA does not define "supplementary," so we look to a dictionary to help us define it. South Dearborn Environmental Improvement Ass'n, Inc v Dep't of Environmental Quality, 502 Mich. 349, 361 (2018). "Supplementary" is defined, in part, as "[a]dded or serving as a supplement: ADDITIONAL." Merriam-Webster's Collegiate Dictionary (11th ed). "Supplement" is also defined, in part, as "[s]omething that completes or makes an addition." Id. This suggests that MEPA could complete any gaps in the SDPMA. As stated, there are no gaps to complete here, as the SDPMA provides its own process for challenging permitting decisions. To the extent that these definitions suggest that MEPA could allow for an additional process, it is unclear that the mere use of the word "supplementary" in MCL 324.1706 would allow individuals to ignore the specific process outlined in the SDMPA for challenging a SDPMA-granted permit. Our role in interpreting statutes is to give effect to every written word to effectuate the intent of the Legislature. Apsey v Mem Hosp, 477 Mich. 120, 127 (2007) (citation omitted). The mere presence of the word "supplementary" in MEPA cannot lead to the conclusion that the more restrictive SDPMA process may be rendered meaningless. To find otherwise would violate the rule of statutory interpretation that no word of a statute should be made nugatory. Id.
Plaintiffs present no caselaw showing that SDPMA permits may be challenged through the mechanisms outlined under MEPA. Even assuming that SDPMA permits could be so challenged, this case would not be an appropriate vehicle for interpreting MEPA provisions for two additional reasons. First, plaintiffs already raised a challenge to these permits under the SDPMA and this Court remanded to the administrative tribunal to conduct a hearing. Lakeshore Group v Dep't of Environmental Quality, 507 Mich. 52, 57 (2021). Second, defendant argues, and plaintiffs do not contest, that the permits at issue may have already expired.
The dissent, while noting that these issues were not addressed by the lower courts, would welcome plaintiffs' invitation to revisit Preserve the Dunes, Inc v Dep't of Environmental Quality, 471 Mich. 508 (2004). However, I do not read Preserve the Dunes as "depriv[ing] courts of the ability to debate the legal implications [of] the SDPMA's administrative-hearing and judicial-review provision . . .; the competing jurisdictional statements . . .; and the competing standards of review," as the dissent argues. (Second alteration in original.) Rather, Preserve the Dunes involved the interpretation of the MEPA alongside a different subsection of NREPA-the sand dune mining act (SDMA), MCL 324.63701 et seq.-and should thus not be binding on decisions related to the SDPMA. Id. at 511. Moreover, both the majority and dissent in Preserve the Dunes seemed to agree that the specific statutory language of the SDMA should control the analysis in that case. Compare id. at 519-520 (explaining that the three pathways to judicial review of an administrative decision include "the review process prescribed in the statute," which was unavailable in that case because the SDMA did not expressly establish such a process), with id. at 532-535 (KELLY, J., dissenting) (using the particular statutory requirements outlined in the SDMA to explain why there should be a cause of action under the MEPA). In short, I am not convinced that Preserve the Dunes prevents us from taking up a future case in which the parties have developed a lower-court record that tees up the proper interpretation of the MEPA as compared to the SDPMA. Nor am I convinced that we should overlook the specific procedural pathways articulated in the SDPMA in order to allow this MEPA challenge to move forward.
Although I share many of the dissent's concerns that this Court should ensure that MEPA is consistently and faithfully interpreted, I do not believe this case presents the proper opportunity to review the language of MEPA, as it more properly concerns the application of the SDPMA. Accordingly, I vote to deny leave.
WELCH, J. (dissenting).
I respectfully dissent from this Court's denial order. In Michigan, "[t]he conservation and development of the natural resources of the state are . . . of paramount public concern in the interest of the health, safety and general welfare of the people." Const 1963, art 4, § 52. The Legislature was specifically directed in the Michigan Constitution to "provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction." Id. In 1970, following its constitutional mandate, the Legislature led the national conservation and environmental protection movement by enacting the Michigan Environmental Protection Act (MEPA), 1970 PA 127. MEPA authorized "[t]he attorney general or any person" to file an "action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction." MCL 324.1701(1). This was the first environmental citizen-suit statute in the world, and it later served as inspiration for the citizen-suit provisions of the federal Clean Air Act and Clean Water Act. See Sax &DiMento, Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act, 4 Ecology LQ 1 (1974). The author of the document that became MEPA was renowned environmental law scholar Joseph Sax. Professor Sax made clear in a 1972 article that MEPA was intended to be supplementary to all other environmental laws and regulations that were in existence or that might one day be enacted unless its applicability was suspended by the Legislature:
Naturally, it is always open to the legislature to enact an explicit exception to [MEPA]. Just as they have enacted the law, so is it within their authority to modify it; but one ought to be cautious in reading implied modifications into statutes of general application such as [MEPA]. Moreover, when attempting to determine legislative policy, it is important to compare the present status of a 1970 law, like [MEPA], with that of some much older statute that is asserted to undercut [MEPA's] environmental mandate. [Sax &Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich. L Rev 1003, 10631064 (1972).]
A few years later, this Court seemed to echo Professor Sax's understanding when it upheld MEPA's constitutionality and made clear that it "does more than give standing to the public and grant equitable powers to the Circuit Courts, it also imposes a duty on individuals and organizations both in the public and private sectors to prevent or minimize degradation of the environment which is caused or is likely to be caused by their activities." Ray v Mason Co Drain Comm'r, 393 Mich. 294, 306; 224 N.W.2d 883 (1975). "[T]he Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality." Id.
MEPA's applicability to a governmental body's final administrative approval of projects that will or are likely to harm the environment was unquestioned for decades. In 1972, Ralph MacMullen, then director of the Michigan Department of Natural Resources, was quoted as saying:
"It is true that the Natural Resources Commission, upon my recommendation, approved construction.... It is likewise true that suit has been brought under [MEPA] by persons who disagree with that decision. The Act-one of the landmark pieces of environmental legislation in the
nation-was passed for precisely that reason; to allow dissenting citizens an opportunity to register their dissents in court. Even though we have been made the defendants in this suit, we welcome it as an expression of public interest in the environment, and another step toward redefining the law so that we can better interpret the wishes of the people." [Michigan's EPA: A Progress Report, 70 Mich. L Rev at 1004, quoting MacMullen, Letter to the Editor, Lansing State Journal (January 28, 1972), p A6 (italics omitted).]
This Court at one point similarly understood MEPA's clear language and intent, as demonstrated by its decision in West Mich. Environmental Action Council, Inc v Natural Resources Comm, 405 Mich. 741 (1979) (WMEAC). The plaintiffs in WMEAC brought a direct MEPA lawsuit against permitting decisions by a state entity that authorized third-party conduct that would cause harm or impairment to the environment and natural resources-specifically, oil and gas drilling in the Pigeon River Country State Forest. The Court first recognized that, pursuant to MEPA, the "issuance of the permits to drill ten exploratory wells was properly before the circuit court as conduct alleged to be likely to pollute, impair and destroy" natural resources. Id. at 751 (emphasis added). This Court not only held that the trial court erred by deferring to the agency's conclusions during environmental review, but it also held that issuance of the permits was likely to result in the impairment or destruction of the local elk population in violation of MEPA. Id. at 755-760. The Court therefore reversed and remanded the case to the trial court for entry of a "permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to" the permits. Id. at 760. Importantly, like the facts alleged in this case, it was the Natural Resource Commission's administrative permitting decisions and its conclusions reached during an environmental review of the proposed project that were challenged in WMEAC, not the subsequent drilling conduct of the permit holder.
As recognized in Haynes, Michigan Environmental Law Deskbook (2d ed), § 14.12, p 7, following WMEAC, the Court of Appeals has held that MEPA allows for direct lawsuits challenging the issuance of building permits, see Comm for Sensible Land Use v Garfield Twp, 124 Mich.App. 559, 564-565 (1983), and "[i]t is apparent that although administrative conduct is sufficient to invoke the MEPA, the determinative point is whether that administrative action is the last hurdle in moving from the paperwork to the outdoors," Wortelboer v Benzie Co, 212 Mich.App. 208, 221 (1995).
In 2004, this Court held in Preserve the Dunes, Inc v Dep't of Environmental Quality, 471 Mich. 508 (2004), without mentioning WMEAC or any conflicting Court of Appeals precedent, that MEPA does not authorize an indirect challenge to the issuance of a mining permit on the basis that an agency erred by determining that a company was eligible to apply for a permit under MCL 624.63702(1) and MCL 624.63704(2). Id. at 519. In reaching this conclusion, the Court stated that "[a]n improper administrative decision, standing alone, does not harm the environment. Only wrongful conduct offends MEPA." Id. Read one way, this statement could be understood to be inconsistent with WMEAC and with the rule that MEPA is "supplementary to existing administrative and regulatory procedures provided by law," MCL 324.1706, as the dissenting justices aptly recognized, Preserve the Dunes, 471 Mich. at 525-526, 534-538 (KELLY, J., dissenting).
This Court overruled Preserve the Dunes in 2010. Anglers of the AuSable, Inc v Dep't of Environmental Quality, 488 Mich. 69, 77 (2010) ("The permit from the DEQ serves as the trigger for the environmental harm to occur. The permit process is entirely related to the environmental harm that flows from an improvidently granted, or unlawful, permit."). But after the 2010 election and a change in the Court's composition, a majority of this Court granted a motion for reconsideration and vacated its prior decision as moot. Anglers of the AuSable, Inc v Dep't of Environmental Quality, 489 Mich. 884 (2011).
In this case, the plaintiffs alleged, in part, that the issuance of the contested permits under the sand dune protection and management act (SDPMA), MCL 324.35301 et seq., as well as the manner in which the Department of Environmental Quality reviewed and processed sand dune permit applications, threatened the environment and natural resources, and thus violated MEPA. At this point, no one disputes that plaintiffs have a right to sue the permittee under MEPA or to participate in the administrative review process. Legal proceedings are ongoing using those processes. Instead, in this action, the Court is asked to decide whether MEPA provides the plaintiffs a separate cause of action to sue the state agency directly under MCL 324.1701 to challenge the agency's review and issuance of the requested permits.
The SDPMA-originally enacted by 1976 PA 222-and MEPA are both subparts of the Natural Resources and Environmental Protection Act, MCL 324.101 et seq., following the enactment of legislation that consolidated several laws concerning Michigan's environment and natural resources. See 1994 PA 451.
The Court of Appeals majority applied Preserve the Dunes as a blanket rule that denies the ability of persons to sue a state agency when the person claims that the issuance of a permit or license violates MEPA. The majority held that, "[s]imply put, the issuance of a permit is too far removed from the environmental harm to be actionable as 'conduct' under MEPA." Lakeshore Group v Michigan, unpublished per curiam opinion of the Court of Appeals, issued December 18, 2018 (Docket No. 341310), p 4. The majority further held that the plaintiffs' only options were to utilize the administrative appeal process under the Administrative Procedures Act, MCL 24.201 et seq., or to sue the permit holder directly under MEPA, MCL 324.1701, but they could not challenge a permitting decision in a lawsuit without first going through the administrative review process.
This statement appears inconsistent with the recognition in Preserve the Dunes that MEPA "does not require that a plaintiff exhaust administrative remedies." Preserve the Dunes, 471 Mich. at 538.
The dissenting judge read Preserve the Dunes as foreclosing direct MEPA challenges against purely procedural administrative decisions that have "no relevance to or impact on the environment ...." Lakeshore Group (RONAYNE KRAUSE, J., dissenting), unpub op at 3. However, she did not believe Preserve the Dunes "insulate[d] all administrative determinations from MEPA challenges per se," and she would have remanded the case and instructed the trial court to "evaluate[] each of the DEQ's alleged errors to determine whether they had a proximate causal connection to the alleged environmental harm." Id.
The Court of Appeals' decision in this case demonstrates that Preserve the Dunes has been read to foreclose all direct MEPA challenges against government agencies that are based on the issuance of a permit or license authorizing third-party conduct that will or is likely to harm the state's natural resources. I believe this presents a matter of practical and jurisprudential importance, and I would have granted the application for leave to appeal. If the Court of Appeals majority's reading of Preserve the Dunes is correct, then Preserve the Dunes is in conflict with WMEAC. There would have been no basis for this Court, under Preserve the Dunes, to conclude that the "issuance of the permits . . . was properly before the circuit court," WMEAC, 405 Mich. at 751, or to grant permanent injunctive relief to the plaintiffs.
But Judge RONAYNE KRAUSE and the plaintiffs in this case raised compelling arguments that would allow the Court to harmonize the Preserve the Dunes decision with WMEAC by limiting the former to procedural or intermediate administrative decisions that are disconnected from the final approval authorizing harmful conduct. This would leave both decisions in place while still allowing a person to pursue a MEPA action challenging an agency's final permitting decision that required the agency to determine whether the proposed conduct would cause unlawful harm to the environment or natural resources.
Additionally, it is critical to remember that the SDPMA and most other modern environmental regulatory and permitting laws did not exist in Michigan when MEPA was enacted in 1970. Even the Administrative Procedures Act of 1969 was in its infancy when MEPA was passed. Recognizing that more laws and regulations would be enacted, the Legislature declared that MEPA is "supplementary to existing administrative and regulatory procedures provided by law." MCL 324.1706. MEPA also granted circuit courts authority to permit third parties to intervene in administrative proceedings, MCL 324.1705(1), or, in original MEPA actions, to direct parties to seek relief in administrative, licensing, or other proceedings as is necessary and available, MCL 324.1704(2). In the latter situation, the court is to retain jurisdiction, MCL 324.1704(4), and after the administrative proceedings have concluded, the "court shall adjudicate the impact of the defendant's conduct on the" natural resources at issue or the public trust in those resources, MCL 324.1704(3).
To alleviate the risk of endless litigation, "collateral estoppel and res judicata may be applied by the court to prevent multiplicity of suits." MCL 324.1705(3). If the Legislature intended to insulate state permitting decisions from lawsuits brought under MEPA, then surely it would have said so expressly rather than having set forth a pathway for how litigation should proceed. For example, the Legislature could have declared that a contested case hearing and subsequent appeal are the exclusive means of challenging such decisions under the relevant permitting statute or that MEPA does not apply. I also find compelling this Court's prior statement that the final issuance of a permit "serves as the trigger for the environmental harm to occur" and that "[t]he permit process is entirely related to the environmental harm that flows from an improvidently granted, or unlawful, permit," Anglers of the AuSable, 488 Mich. at 77, vacated 489 Mich. 884. At a minimum, permitting decisions that require an agency to evaluate the environmental impacts of the proposed conduct are directly connected to the actual conduct that final approval process authorizes.
The administrative-hearing provision of the SDPMA, MCL 324.35305(1), states that a permit applicant or the "owner of the property immediately adjacent to the proposed use" who are "aggrieved" by the permitting decision have a statutory right to request a formal contested case hearing under MCL 24.201 to 24.328. No provision of the SDPMA refers to MEPA. But the scope of individuals who have a right to a contested case hearing under MCL 324.35305, which is a distinct administrative proceeding, is obviously narrower than those to whom MEPA granted the right to file an original action or request intervention. See MCL 324.1701; MCL 324.1704; MCL 324.1705. I disagree with the concurrence's suggestion that the clear mandate that MEPA be "supplementary to existing administrative and regulatory procedures provided by law," MCL 324.1706, renders it a gap-filler that only applies when the Legislature has not provided another path for administrative or judicial review. I agree that to be "supplementary" is best understood as being an addition to something. But this suggests that MCL 324.1706 should be harmonized with other environmental statutes in the absence of an irreconcilable conflict. See, e.g., Hannay v Dep't of Transp, 497 Mich. 45, 57 (2014) (" '[W]ords and phrases used in an act should be read in context with the entire act and assigned such meanings as to harmonize with the act as a whole,'" and" 'a word or phrase should be given meaning by its context or setting.' ") (citation omitted); Nowell v Titan Ins Co, 466 Mich. 478, 482 (2002) (providing that "provisions of a statute that could be in conflict must, if possible, be read harmoniously"). Reading the SDMPA as restricting a direct action under MEPA by implication and without attempting to harmonize these neighboring environmental statutes effectively negates MCL 324.1706. Such a reading also arguably conflicts with the express language in MCL 324.1706 and MCL 324.1704(3) and (4)-all of which contemplate the existence of additional statutes or procedural mechanisms-and MCL 324.1701(1), which grants the "attorney general or any person" a direct cause of action that is not limited by proximity to the location of the proposed use. This Court has not grappled with these issues.
The concurrence opines that this case does not present the "proper opportunity to review the language of MEPA, as it more properly concerns the application of the SDPMA." But the potential for conflict between provisions of MEPA and the SDPMA was not addressed by the courts below. Nor could those courts have reached that issue, because Preserve the Dunes has been interpreted as a blanket prohibition against filing a MEPA action to challenge an agency's permitting decision that authorizes third-party conduct. The current reading of Preserve the Dunes would seem to deprive courts of the ability to debate the legal implications of the SDPMA's administrative-hearing and judicial-review provision, MCL 324.35305; the competing jurisdictional statements under MCL 324.1701(1) and MCL 324.35305(1); and the competing standards of review under MCL 324.1701 and MCL 325.35304(1)(g). In other words, so long as all agency permitting decisions that authorize third-party conduct are insulated from third-party MEPA challenges, there will be little opportunity to analyze the intricacies of how MEPA interacts with an agency's duties under specific permitting statutes. The Court's decision to deny leave in this case effectively ensures that these issues will remain unresolved.
I am troubled by the inconsistencies between the Court of Appeals' interpretation and application of Preserve the Dunes in this case and this Court's decision in WMEAC and the "common law of environmental quality," Ray, 393 Mich. at 306, that developed in the time between the two decisions. Accordingly, I question the correctness of the Court of Appeals majority's decision in this case. The Court has missed an opportunity to clarify its precedent and the applicability of MEPA to final administrative decisions authorizing conduct that will or is likely to harm our state's natural resources or the public trust in those resources. I would have granted leave to appeal or resolved this case on the merits. I respectfully dissent from the Court's decision to do neither