Feature Story

Michigan Supreme Court Ends Energy Company’s Bid to Pollute Au Sable River

By FLOW for Water

The Michigan Supreme Court finally ended an energy company's bid to discharge millions of gallons of treated oil field wastewater into the pristine headwaters of the AuSable River.  In a 4:3 decision, the majority of the Court reversed a Court of Appeals decision that left open the potential for Merit Energy to return to the state for easements and a permit to discharge wastewater into the river.

The Michigan Supreme Court finally ended an energy company's bid to discharge millions of gallons of treated oil field wastewater into the pristine headwaters of the AuS able River.  In a 4:3 decision, the majority of the Court, lead by the opinion of Justice Tom Davis, reversed a Court of Appeals decision that left open the potential for Merit Energy to return to the state for easements and a permit to discharge wastewater into the river.   
“We will not give up,” the late Rusty Gates, former President of the Anglers group and recognized state conservation leader, said, when the Anglers pursued the appeal in the Supreme Court after the court of appeals nixed the right of citizens to bring suits against the state for permitting discharges harmful to the environment.

“Not give up, indeed. The decision is a great victory for citizens and riparian landowners,” said Brice Pregler, President of the Anglers of the AuSable., “We will continue vigilantly enforce our water and environmental water laws to prevent any harm or abuse of the AuSable and the state's trout streams and waters.”

In 2005, the Michigan Department of Environmental Quality issued Merit a permit to discharge 1.15million gallons of wastewater into Kolke Creek, the headwaters of the Au Sable River. Anglers of the Au Sable and local property owners brought a lawsuit to stop Merit's discharge in 2005.  In 2007 Gaylord circuit court judge Dennis Murphy ruled the proposed discharge was unreasonable under Michigan water law and would pollute or impair the creek, a lake, and headwaters of the AuSable in violation of Michigan's Environmental Protection Act.  In 2009, the Court of appeals ruled that citizens could not bring citizen suits against the DEQ for issuing permits authorizing harm to the air, water and natural resources, following a hotly contested case involving a suit against the state for authorizing sand dune mining several years ago. 

“The Au Sable River and Michigan's lakes and stream are better protected from future attempts to degrade or impair our treasured water resources,” said Jim Olson, HYPER FLOW who along with Jeff Jocks at Olson, Bzdok  & Howard, Traverse City, represented the Anglers and individual plaintiffs before the Court. “This sends a signal that our lakes, streams, and the Great Lakes will not be plundered by relaxed legal principles that condone harmful diversions and exploitation. And it fully restores the rights of citizens to sue the state for permitting projects that are likely to degrade the environment and our states' waters.”

“This is a great day for the Au Sable River. Yesterday our laws worked,” Susan Hlywa Topp, attorney for the individual landowners, said.  “My clients are very pleased that Merit, its future assigns, and the DEQ can not come back and try to discharge water and destroy my clients' riparian property and the creek and lake.”

“Let this be the end of this litigious run,” attorney Jeff Jocks said.  “The Court has spoken and our trout streams remain protected.” 

“It is our hope that the long-standing reasonable use and water law principles will now stand against attempts by special interests to strangle them,” said Mike Dettmer, attorney for amicus Michigan Citizens for Water Conservation, the organization that won an injunction limiting Nestlé's water extractions that harmed a river in Mecosta County.

The case puts a period on a long struggle that made its way up and down the appellate ladder.  Merit Energy was supported by industry amicus groups wanting Michigan's water laws relaxed for their private needs.  Anglers was supported by amicus Michigan Citizens for Water Conservation, Michigan Environmental Council, National Wildlife Federation, and Trout Unlimited, all of whom stressed the importance of maintaining strong water and environmental protection laws for landowners, business, citizens, and quality of life alike.

Outside Author
Outside Author: 
FLOW for Water