Fall 2018

Vol. 36, No. 2, Issue 105

Chair’s Report From Kelly Martorano

Kelly MartoranoI am honored and excited to begin my term as the newest chair of the Environmental Law Section and look forward to a productive and fun year. The Section leadership has some exciting ideas for the coming year that we hope will intrigue and engage the current Section membership and also attract new members.

However, first I want to thank Scott Steiner for turning over the Section on a high note. His leadership and commitment to promoting the Section over the last year and driving forward improvements has put us in the position of being one of the top Sections in the Michigan Bar. I recently attended the Section Chair Orientation in Lansing and was so proud to see our Section's web page and the Environmental Law Journal being used as an example of what other Sections can achieve.

Please check out the web page and set up your profile on SBM Connect while you are there. SBM Connect will be one of the ways we will be working to keep our members informed and distribute news about events and current environmental issues. There is a nice tutorial on using SBM Connect that the Section posted in 2017 that should help you get started, if needed.

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Editor Highlight: Lydia Barbash-Riley & Joni Roach

Joni RoachThe MELJ’s spring issue featured an introduction to two of its new editors—Nicholas Leonard and Allison Collins, but also hard at work on its Editorial Committee are Joni Roach and Lydia Barbash-Riley.

Joni is a research attorney with the Michigan Court of Appeals in Grand Rapids, MI. She attended law school at Michigan State University School of Law, where she was a published member of the law review, a professor’s teaching assistant, and a research assistant. Joni completed multiple externships in law school, working for the Chapter 13 bankruptcy trustee and a judge in the Western District of Michigan among others. Before law school, Joni studied professional writing and computer science at Grand Valley State University. She worked in the field of e-commerce for approximately five years before making the decision to attend law school. Joni’s interest in the environment stems from her wonderful memories of camping, swimming, biking, and hiking as a child with her family in northern Michigan. In her free time, Joni volunteers at a local cat shelter, and enjoys mountain biking, hiking, reading, and writing.

Lydia Barbash-RileyLydia Barbash-Riley is an associate attorney with Olson, Bzdok & Howard, P.C. specializing in environmental, energy, and Indian law. She represents public interest clients in proceedings before the Michigan Public Service Commission and in other environmental and land use litigation matters. Lydia also has experience counseling municipal and private clients regarding environmental due diligence and brownfield redevelopment.

Lydia received her J.D. cum laude from the Indiana University Maurer School of Law in Bloomington, where she was the Editor-In-Chief of the Indiana Journal of Global Legal Studies. During law school, she gained experience working to protect natural and cultural resources in the public and non-profit sectors as a legal intern with the National Oceanic and Atmospheric Administration and the Conservation Law Center. Lydia also earned a Master of Public Affairs in Environmental Policy and Natural Resource Management from Indiana University’s School of Public and Environmental Affairs and a B.A. in political science with honors in the liberal arts from the University of Wisconsin-Madison. Prior to law school, Lydia was a Community Environmental Development Promoter in the Dominican Republic with the U.S. Peace Corps. Lydia currently serves on the Board of Directors of the Land Conservancy of West Michigan. Outside of the office, she enjoys hiking and SCUBA diving in the Great Lakes.

The Michigan Supreme Court Affirms 90-Day Appeal Period

Tracy J. AndrewsChristopher M. Bzdokby Christopher M. Bzdok & Tracy J. Andrews, Principal and Of Counsel, respectively, to Olson, Bzdok & Howard P.C.

In July, the Michigan Supreme Court held in South Dearborn Environmental Improvement Association v. Michigan Department of Environmental Quality that challenges to a Permit to Install for an existing source of air pollution are subject to a 90-day appeal period under Part 55 of the Natural Resources and Environmental Protection Act. While historically the consensus view was that all air permit challenges under Part 55 were subject to a 90-day appeal period, this proposition had never been tested prior to the South Dearborn case. These authors believe that the Supreme Court’s opinion settles this question in a way that promotes uniformity and makes the process for seeking judicial review of air pollution permits logical and comprehensible.

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Viewpoint: Assessing Michigan’s Response to the Flint Water Crisis

Nick Leonardby Nick Leonard, Executive Director, The Great Lakes Environmental Law Center

The Flint Water Crisis represents one of the most serious failings of environmental law and the administrative state in American history. The Lead and Copper rule, the primary regulation in existence to ensure that the drinking water delivered to people’s homes is safe, did not serve its primary function. Why that is the case is partially due to loopholes and gaps in the lead and copper rule, on which the Flint Water Crisis shone a bright light. However, the problem was not purely a matter of the language of the lead and copper rule failing to adequately protect the public health. The Crisis was also created by a failure of action on the part of the Michigan Department of Environmental Quality (MDEQ), the U.S. Environmental Protection Agency (EPA), and many non-governmental environmental watchdogs to listen to residents. After all, Flint residents started to raise the alarm bell about their drinking water immediately after the water system switched its water source by contacting experts to have the lead levels in the drinking water from their taps tested. For over one and a half years, residents of Flint and other advocates were derided as being misinformed and much worse. In the end, it was the people in charge of protecting Flint’s drinking water that admitted to being misinformed, with residents being left to live with the consequences.

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Downstream Litigation: Henry v. Dow Chemical Co. and Claim Accrual in Toxic Tort Cases

Allison M. CollinsBrandon M. H. Schumacherby Brandon M. H. Schumacher & Allison M. Collins, Associates, Foster Swift Collins & Smith, PC

On January 24, 2018, the Michigan Supreme Court overturned the Court of Appeals majority opinion in Henry v. Dow Chemical Co (Henry III), and adopted the lone dissenting judge’s rationale in remanding the case to the Saginaw County Circuit Court for further proceedings. The issue for the circuit court to resolve was when did the plaintiffs’ toxic tort claim accrue: 1984 or 2002? Filed in 2003, the Henry case’s complex, prolonged litigation history has addressed novel issues of Michigan law, ranging from the viability of medical monitoring claims to the standard for class certification in a class action.[3] While the Henry III order is only one page and unsigned, the order adopting the Court of Appeals’ dissent is significant because it reinforces when a toxic tort claim accrues, and therefore when the statute of limitations begins to run on such claims. Moreover, Henry III also makes clear why early recognition of an accrued claim is essential to circumvent Michigan’s statutory barriers in place to avoid a wait-and-see approach to toxic tort litigation. However, the case also leaves several concerns for the Michigan Legislature to consider.

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Leaky Tanks and Oily Water

Joni Roachby Joni Roach, Research Attorney, Michigan Court of Appeals

In September 2015, the Michigan Department of Environmental Quality (DEQ) filed a lawsuit against BP, PLC, BP Holdings North America Limited, and BP America, Inc., (collectively BP), arguing that BP used false or misleading statements when it applied for financial reimbursement from the Michigan Underground Storage Tank Financial Assurance Fund (the Fund). Specifically, the DEQ alleged that BP failed to disclose insurance coverage for the cleanup of leaking petroleum storage tanks; therefore, the DEQ claimed that BP was doubly reimbursed.

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What You Might Have Missed

GBlue Water Bashreat Lakes Environmental Law Center’s Annual Blue Water Bash
November 15, 2018, Detroit

The Great Lakes Environmental Law Center hosted its fifth annual blue water bash at Tony V’s to celebrate a year of successful work and to honor a distinguished actor in the environmental field. This year’s honoree is Detroit City Council Member Raquel Castañeda-López. The GLELC dubbed her the “Legislator of the Year” for her work spearheading the passage of the Detroit Fugitive Dust Ordinance last fall and her perseverance as a steadfast advocate in addressing air quality issues in Southwest Detroit.

Webinar: Ontario Bar Association ELS and SBM ELS: Examining Shared Environmental Interests
Nov. 12, 2018

Members of the Environmental Law Section and the Ontario Bar Association discussed environmental law topics relevant to lawyers on both sides of the border. The speakers included Jaffrey K. Haynes of Beier Howlett, Mark Mattson of Swim, Drink, Fish, Theresa McClenaghan of the Canadian Environmental Law Association, and Professor Nicholas Schroek of the University of Detroit Mercy Law School. They discussed the impact of the deep geological (nuclear waste) repository, development patterns, storm, sewage, and chemical run-off on the Great Lakes. Their presentations addressed the similarities and differences of legislative frameworks in Michigan and Ontario.

Joint Environmental Law Conference
Nov. 8, 2018, Lansing

The Joint Environmental Law Conference, co-sponsored with the West Michigan and East Michigan Chapters of the Air & Waste Management Association, was held in early November at the Lansing Community College West Campus. The Conference featured key note addresses from EPA Region 5 Administrator Cathy Stepp and MDEQ Director Heidi Grether.

2018 ELS NEXT ConferenceSBM NEXT Conference
Sept. 26-28, 2018, Grand Rapids

The ELS provided programing during the Conference. Margrethe Kearney of the Environmental Law and Policy Center and Todd Schebor of Dykema organized a presentation by Janet McCabe, Former Acting Assistant Administrator for the Office of Air and Radiation, and Jim Roush and Matt Hall of Consumers Energy regarding the EPA’s proposed Affordable Clean Energy rule—a rule intended to replace the Clean Power Plan rule. Sean Hammond of the Michigan Environmental Council provided an update on new public acts regarding environmental, energy, and land use matters that were passed by the Michigan Legislature since last year’s annual meeting.

2018 ELS NEXT Conference--Part 2Following the Section meeting, the Council held its annual election meeting. Outgoing Chair Scott Steiner of Rhoades McKee passed the gavel on to Chair-Elect Kelly Martorano of Dickenson Wright (above left). By nomination and confirmation of Section members present, Jim Enright transitioned from Secretary-Treasurer to Chair Elect and Tammy Helminski of Barnes & Thornburg filled his position as Secretary-Treasurer. In addition, Lydia Barbash-Riley of Olson, Bzdok & Howard, and Kurt Kissling of Pepper Hamilton were selected to serve on the Council while Todd Schebor of Dykema, and Paul Collins of Miller, Canfield, Paddock & Stone were confirmed to serve a second term on the Council. Chris Dunsky was honored for his years of dedication to the Section and his commitment to leading this publication (right). Following the meeting, the Section sponsored a happy hour at Bistro Bella that was well attended. The next Council meeting will be in December TBD.

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Overlook Lake Michigan from Arcadia Dunes

Overlook from Arcadia Dunes





Overlook Lake Michigan from Arcadia Dunes this winter. Photo by Nate Richardson.

Host a Law School Intern

Could your environment, energy, or natural resources practice use an extra hand? Law students from Michigan State, Wayne State, Detroit Mercy, Michigan, and Cooley are looking to learn more about environmental law in Michigan. Think back to your early days diving into environmental law and how you could have benefited from a summer of practical experience.

Your organization can offer an externship or internship for 1Ls or 2Ls, even if you are unsure about post-graduation employment opportunities.

Even if you are unsure, but you might be interested in accepting student resumes for possible internship positions, fill out this contact form.

ELS plans to create a directory of possible internship opportunities that will be passed along to the student environmental groups at each of the Michigan law schools. Help us provide opportunities for Michigan students to learn the law here in Michigan. We want Michigan students to stay and practicing here in Michigan after graduation.

Contribute to the MELJ

The next issue is Spring 2019. Write on a difficulty you have encountered in your practice to help fellow practitioners OR write about a topical environmental event or issue that interests you.

Email submissions or inquiries to Amanda Urban at ajurban@umich.edu

  • 2-10 pages, 12pt Times New Roman, Michigan Appellate Manual footnotes

Section Information

Find Us on Twitter Join Us on LinkedIn

Chair
Kelly M. Martorano
kmartorano@dickinsonwright.com

Editor, Michigan Env. Law Journal
Amanda Urban
ajurban@umich.edu

Section Administrator
Mary Anne Parks
parks.maryanne@gmail.com

Officers & Council Members PDF

Committees

ELS Website

Join Us Now

Environmental Law Section dues are only $30 and FREE for law students and new members to the bar. To join, please complete a section membership application or attorneys can join online by logging into the Bar's member area and selecting Section Membership.

MELJ Editorial Committee

  • Amanda Urban
  • Allison Collins
  • Nicholas Leonard
  • Joni Roach
  • Lydia Barbash-Riley

Join: The MELJ is a team effort and would not be possible without the hard work of its contributing and associate editors, as well as the State Bar administrative staff. Consider joining the MELJ Editorial Committee. Contact Amanda Urban if interested.

The Michigan Environmental Law Journal is a publication of the Environmental Law Section of the State Bar of Michigan and exists to provide the Section’s membership a forum for sharing information and discussing environmental topics relevant to the legal community in the State. To that end, the MELJ encourages the open exchange of legal discourse on a variety of environmental topics, but does not endorse particular viewpoints or positions unless otherwise recognized by the Section. Any opinions espoused by the articles contained within are attributable to solely their respective authors and are not representative of the SBM, the Section, or its members generally. Publication is neither an endorsement nor a rejection of a particular position by the Environmental Law Section.