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March 2022

Kuhn Rogers Files Amicus Curiae Brief (on behalf of MWA) with the Michigan Supreme Court in Critical Environmental Law Case

The Michigan Supreme Court recently granted leave to allow the Michigan Waterfront Alliance (“MWA”) to file an amicus curiae brief in the momentous environmental law case titled, Lakeshore Group v Department of Environmental Quality. The brief was prepared by Kuhn Rogers attorney Dane Carey, who serves as co-counsel for the MWA with his father, William Carey, of Carey & Jaskowski, PLLC.

What is an amicus curiae? The term, which literally translates to “friend of the court,” refers to a non-party individual or organization that has a vested interest in the subject matter of the case and volunteers to offer insight on a specific point of law or policy to assist the court in reaching a decision. An amicus curiae brief asks the court to adopt a particular position or legal theory.

The core issue in the Lakeshore Group case is whether private individuals and organizations can bring an action under MCL 324.1701(1) of the Michigan Environmental Protection Act (“MEPA”) against state agencies who make permitting decisions that may have an adverse environmental impact. In its amicus curiae brief, MWA made two arguments for the Supreme Court’s consideration. First, MWA argued that administrative review and approval of a permit can form the basis of a cause under MCL 324.1701(1) in accordance with the Supreme Court’s controversial decision in Preserve the Dunes, Inc v Department of Environmental Quality, 471 Mich 508; 684 NW2d 847 (2004). In the alternative, MWA has urged the Supreme Court to overturn its position in that case if it decides that Preserve the Dunes does bar such actions under MEPA.

As the Michigan Supreme Court explained in Ray v Mason County Drain Commissioner, 393 Mich 294, 305-06; 224 NW2d 883 (1975):

Michigan’s EPA was the first legislation of its kind and has attracted worldwide attention. The act also has served as a model for other states in formulating environmental legislation. The enactment of the EPA signals a dramatic change from the practice where the important task of environmental law enforcement was left to administrative agencies without the opportunity for participation by individuals or groups of citizens. Not every public agency proved to be diligent and dedicated defenders of the environment. The EPA has provided a sizable share of the initiative for environmental law enforcement for that segment of society most directly affected—the public.

Although the Court’s decision in Preserve the Dunes has been interpreted by the lower courts in this case to bar the plaintiff, Lakeshore Group, from bringing an action against the DEQ, a close examination of the Court’s opinion and the statute involved in Preserve the Dunes suggests a different result. MWA goes further in its amicus curiae brief, however. Although not argued by the plaintiff or other amici curiae who filed earlier briefs, MWA took the bold position that Preserve the Dunes should be overturned and MEPA restored to its former glory as the legislation that changed the environmental law landscape throughout the world.

This case will have statewide impact and significance on the ability of individuals and organizations to protect “the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction” from administrative agency permitting decisions that allow environmentally harmful activity to occur.

Oral arguments in this case are scheduled for March 30, 2022 at 10:00 a.m. MWA and its attorneys look forward to the Michigan Supreme Court restoring MEPA jurisprudence and breathing new life into the groundbreaking environmental statute.