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Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act

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Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act Ecology Law Quarterly VOL. 4 WINTER 1974 No. 1 Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act Joseph L. Sax* and Joseph F. DiMento** The Michigan Environmental Protection Act was the first stat- ute to provide for citizen suits to protect the environment from de- gradation by either public or private entities and to provide a broad scope for court adjudication. The federal Clean Air Act and Water Pollution Control Amendments, as well as several state statutes, have followed the Michigan Act's lead. The Act's success or failure is an important harbinger of the fate of the environmental movement, be- cause the breadth of its mandate tests the utility of the judicial proc- ess as an instrument for environmental protection. In this Article the draftsman of the Michigan Act reviews the first three years of its implementation. The authors find that the Act has received rela- tively little substantive interpretation, but that a considerable volume of litigation has occurred without the dire consequences which some had predicted. Encouraging developments discussed include the un- expected frequency with which public agencies have invoked the Act and the able and concerned efforts of many judges to protect the public interest in the environment. * Professor of Law, University of Michigan. A.B. 1957, Harvard College; J.D. 1959, University of Chicago. ** Assistant Professor of Social Ecology, University of California, Irvine. A.B. 1969, Harvard College; Ph.D., Urban and Regional Planning 1974, University of Michigan; Class of 1974, University of Michigan Law School. The authors wish to acknowledge the assistance with computer analysis provided by Louis J. DiMento, University of Michigan. ECOLOGY LAW QUARTERLY [Vol. 4:1 I AN INTRODUCTORY NOTE FROM PROFESSOR SAX Since late 1968, when I wrote the first draft of the bill which ulti- mately became the Michigan Environmental Protection Act,' I have spent a good deal of my time urging other states and the Congress to follow Michigan's leadership by enacting laws that would broadly allow members of the public to go into court for injunctive relief against environmentally harmful activities. My interest in 'having such laws enacted grew out of a conviction that citizen initiative in the courtroom was an essential supplement to regulation and enforcement by public agencies. 2 To determine the effectiveness of procedures under the Michigan Environmental Pro- tection Act, I began monitoring all cases initiated under the Act once it became effective on October 1, 1970.3 Our purposes in publishing the results of our efforts are threefold. First, lawyers in Michigan and in six other states that now have similar laws 4 may obtain informa- tion about developments under the law, most of which do not appear in reported cases.5 Second, we hope our report will provide a base 1. MICH. CoMP. LAWS ANN. §§ 691.1201-.1207 (Supp. 1973), MICH. STAT. ANN. §§ 14.528 (201)-(207) (Supp. 1973). The Act, hereinafter referred to as the EPA, will be cited hereinafter solely to MICH. CoMP. LAWS ANN. The full text of the EPA is reprinted as Appendix A infra. 2. See J. SAx, DEFENDING THE ENVIRONMENT (1971). 3. In this undertaking, I was fortunate to have the help of two unusually com- petent and diligent law students, Roger L. Conner and Joseph F. DiMento. In May 1972, Conner and I published an article describing in detail the experience during the Act's first year-and-a-half. Sax & Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 MIcH. L. Ruv. 1003 (1972) [hereinafter cited as Sax & Conner]. The present article attempts to bring that report up to date for the first three years under the EPA, with data available through October 1, 1973. 4. MINN. STAT. ANN. §§ 116B.01-.13 (Supp. 1973); MASS. ANN. LAws, ch. 214, § 10A (Supp. 1972); CONN. GEN. STAT. ANN. §§ 22a-14 to -20 (Supp. 1973); S.D. CoMp. LAWS ANN. §§ 21-10A-1 to -15 (Supp. 1973); FLA. STAT. ANN. § 403.412 (Supp. 1973); IND. ANN. STAT. §§ 13-6-1-1 to -6 (1973). See also CAL. GOV'T CODE, §§ 12600-12 (West Supp. 1973), which is quite similar to the Michigan law except for the standing to sue provision. For literature on the law in other states see Hatch, Massachusetts and Michigan: Two States With an Answer, 6 LINooLN L. REv. 119 (1971); Johnson, The Environmental Protection Act of 1971, 46 CONN. BAR J. 376 (1972); McGregor, Private Enforcement of Environmental Law: An Analysis of the Massachusetts Citizen Suit Statute, 1 ENVIRONMENTAL AFFAIRS 606 (1971); Note, The Minnesota Environmental Rights Act, 56 MINN. L. REv. 565 (1972); Consumer Interest Foundation, Do Citizen Suits Overburden Our Courts?: A Case Study of the Judicial Impact of State Environmental Legislation (1973) [hereinafter cited as Do Citizen Suits Overburden Our Courts?]. 5. Many of the cases under the EPA are still in progress; most of those which have been completed were resolved at the trial court level. Because of the irregular nature of most source material and the narrative perspective of this article, full citation data, including the court of decision, on unreported cases concerning the EPA is set 19741 MICHIGAN ENVIRONMENTAL PROTECTION ACT 3 of information to help interested citizens assess the desirability of such legislation in the numerous states which have similar bills before their legislatures.6 Third, our efforts represent an experiment in effi- cacy research, a subject in which the legal literature is quite sparse.I Our principal sources of information were daily newspapers," an excellent weekly environmental newspaper published in Michigan, 9 and the periodic newsletters of environmental and business groups throughout the state. In addition, a network of people throughout the state periodically wrote or called in information about new cases. Most of these persons were lawyers or plaintiffs, many seeking either advice on their own cases or information from our files on other unre- forth in Appendix B, infra. Such data sometimes is omitted in the article itself where irrelevant to the discussion. 6. ALASrK S.B. 55 (Sen. Josephson 1971); ARiz. S.B. 1202 (Sen. Guteirrez et al. 1973); COLo. H.B. 1113 (Rep. R. Lamm 1970); HAWAII H.B. 1783 (Rep. King 1973); Ky. H.B. 319 (Rep. Lindsay et al. 1972), also S.B. 187, (1972); ME. LEG. Doc. No. 1923 (Comm. on Nat. Resources 1973); MD. S.B. 487 (Sen. James 1973); MONT. H.B. 88 (Rep. Towe et al. 1973); N.H. S.B. 227 (Sen. Koromilas 1971); N.J.A.B. 569 (Rep. Kean et al. 1973) and A. 1245 (Rep. Hynes, 1974); N.Y.A.B. 33-B, 172, 9162-A, 10448 (Rep. Harris 1972), also A.B. 33-B, 172, and 10448 (1972); N.C.H.B. 1209 (Rep. Bryan et al. 1971); N.D.S.B. 2239 (Sen. Fritzell 1973); PA. H.B. 528 (Rep. Scirica et al. 1973); R.I.S.B. 3038 (Sen. Arcaro 1972), also H.R. 5045 (Rep. J.G. Miller 1972); TENN. H.B. 434, (1971), also S.B. 288 (1971); TEx. S.B. 70 (Sen. Wallace 1973), also H.B. 205 (Sen. Menefee et al. 1973); VT. S.B. 48 (Sen. Gibb 1971); Wis. S.B. 123 (Sen. Lorge et al. 1971). We would be grateful for information from readers on other bills modeled after the EPA and for any updated information on the bills listed. Various federal bills have been presented to Congress since 1970; hearings regard- ing them contain a wealth of useful information. See Hearings on S. 3575 Before the Subcomm. on Energy, Natural Resources and the Environment of the Senate Comm. on Commerce, 91st Cong., 2d. Sess., ser. 80 (1970); Hearings on S. 1032 Be- fore the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong., 1st Sess., ser. 17 (1971); Hearings on H.R. 49, 290, 4517, 8050, 5074-76, 5819, 6862, 8331, 9564, 9583 Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess., ser. 23 (1972); Hearings on S. 1104 Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 93d Cong., 1st Sess. ser. 19 (1973). Certain of these federal proposals are discussed in Cramton & Boyer, Citizen Suits in the Environmental Field: Peril or Promise?, 2 EcoLoGY L.Q. 407 (1972). 7. The difficulty of gathering information about suits filed under a single law m a single state has been truly astonishing. Michigan would seem to be no more back- ward in its legal recordkeeping than most states; yet there is no way to discover all cases filed under a given law other than to go periodically to the clerk's office in each of the state's 45 trial-level circuit courts and read through all complaints filed there. Indeed, for total coverage, one must also check the probate courts, where eminent do- main cases (in which environmental defenses are sometimes asserted) arise, and the federal courts. Presumably this situation will improve under the "Case Information Control System" adopted by the Michigan Supreme Court, effective January 1, 1974, which will require attorneys to designate their complaints by case type. 8. Principally the State Journal (Lansing), the Free Press (Detroit), and the News (Ann Arbor). 9. The North Woods Call. ECOLOGY LAW QUARTERLY [Vol. 4:1 ported cases.' Our information sources provided sufficient duplica- tion that we are confident we have learned of almost all EPA cases filed."1 After discovering a case and opening a file, we contacted the attorneys and encouraged them to supply us with pleadings, with in- formation about forthcoming hearings or trials, with copies of judicial orders and decisions, and with information about settlement of cases.
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