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E-M:/ Another Supreme Court victory

Enviro-Mich message from juliemec@voyager.net (Julie Stoneman)

Unbelievable!  After the K&K and Crystal River
decisions, did we dare hope for more good news
from the Michigan Supreme Court?  Well we got
more yesterday when the court handed down
its decision in Nemeth v. Abonmarche Development,
Inc.   In a nutshell, the Supremes restored the
heart of the Michigan Environmental Protection
Act (MEPA) and the ability for citizens to take court
action to protect natural resources even if the resources
are not unique or of state significance.

In the Nemeth case, residents in Manistee sought a
 MEPA injunction against a development company,
claiming that the developer's  violation of the
Soil Erosion and Sedimentation Control Act was
sufficient evidence to prove that their activities were
likely to cause pollution, impairment or destruction
of a natural resource.  Although the trial court
agreed, the Court of Appeals reversed using
what's been known as the "Portage test."
Based on an appellate court case decided in
1984 (City of Portage v. Kalamazoo Co. Rd. Comm),
Portage set a high threshold--natural resources and
the threats to them have to  rise to a significant level
 of harm to warrant a MEPA injunction.

The Portage test has been the bane of activists
for over a decade.   The original intent of MEPA
was to give  citizens a legal tool to enforce
environmental and natural resource protection
even if the resources in question were not of state
significance.  The threshold needed to be met, in
other words, was meant to be much lower than
the Portage tests.   In yesterday's decision, the
Supreme Court agreed.

Although the entire decision was not available
at this writing, a summary issued by the Court
addressed the following points:

1.  Violations of the soil erosion and sedimentation
control act can form the basis of a prima facie
case (meets the threshold for MEPA action).
2.  MEPA does not require air, water or other
natural resources to be scarce or unique to
be protected from actual or likely pollution,
impairment, or destruction.

There was one disappointment  in the decision.
The Supreme Court upheld a lower
court finding that plaintiffs that prevail in
MEPA cases cannot be awarded attorney
fees.  The Michigan Environmental Council
filed an amicus brief in support of  allowing
attorney fees because without the potential
to recoup those fees  if they win, citizens
are less likely to take action under MEPA
given the enormous costs of litigation.
At this point, the only remedy for attorney
fees is to amend MEPA by legislation.

Justice Brickley wrote the decision and was
joined y Chief Justice Mallet, Boyle and Taylor.
Justice Weaver concurred only with the result
and Justices Cavanagh and Kelly concurred
in part but dissented with the others on
the issue of attorney fees.  According to
the summary, Cavanagh and Kelly argued
that "attorney fees are apportionable in MEPA
actions as the interests of justice require.
The majority's conclusion to the contrary
in effect will serve to constrain the application
of the act and thereby frustrate its purpose."

Despite the partial loss on attorney fees,
yesterday's ruling is one of the most substantive
environmental decisions the Michigan Supreme
Court has made in years--a major
victory for the people of Michigan and
their ability to participate in the protection
of  natural resources and the environment.

Many thanks to the plaintiffs (Theodore W. Nemeth,
et. al)  and their attorneys for taking
the case to the Supreme Court.   We
especially thank Phil Rosi (Rosi, Harrison &
Bergstron, P.C.), Jim Olson (Olson, Noonan,
& Ursu, P.C.) and Jeff Haynes (Rentrop,
Vanderkloot, Haynes & Morrison, P.C.--Jeff
prepared the amicus brief for MEC) for
their enormous contributions to this case.

Julie Stoneman
Director of Land Programs
Michigan Environmental Council
119 Pere Marquette Dr., Suite 2A
Lansing, MI  48912
ph:     517-487-9539
fax:    517-487-9541
email:  juliemec@voyager.net

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