Published in Michigan Environmental Law Journal, Spring–Summer 2016, Vol. 34, No. 1, Issue 101 [view full issue].
Cite: 34 Mich Env Law J 1 (2016)
By Christopher J. Dunsky, Editor
This is the one hundred first issue of the Journal, a major milestone. The oldest issue in the Environmental Law Section's incomplete collection is Volume 18, No. 1, issue 57 from 2000. That volume number and date suggests that the first Journal appeared way back in 1983. If you have any Journal issue from the 20th Century, or any of the 21st Century issues missing from the Section's website, please send a copy to one of the section officers so we can add it to the Section's collection and make it available to everyone. We are missing issues Nos. 1–56 (1983 through 1999), and many issues from 2003 through 2008 (Nos. 65–80).
For the past four years the first issue in each calendar year has included a summary of Public Acts the Michigan legislature adopted during the preceding calendar year. In contrast with several recent years, legislative activity in 2015 on environmental issues was modest. Attorneys who practice pollution control law may be most interested in the significant changes to venerable Part 121 of NREPA, formerly called the Liquid Industrial Wastes Act, now given the upscale name Liquid Industrial By-Products. This year's summary of environmental legislation will acquaint you with those changes, including enhanced enforcement options. And remember not to take your unmanned aerial or submersible vehicle (UAV) with you when hunting this year. Don't take it with you even if you oppose hunting. In either case, you may find yourself in violation of new Michigan laws that prohibit using UAVs either to assist hunters or to harass them. Live falcons and electronic fish finders are apparently still okay.
This issue also features a trio of articles by active section members that discuss recent decisions by the Michigan Court of Appeals. Can an impersonal, cold-hearted corporate entity "enjoy" the natural environment, at least for legal purposes? Council member Becky Cassell explains Tennine Corp. v. Boardwalk Commercial, LLC, in which the Court of Appeals held that a corporation is a "person" that can have legal standing to sue for injunctive relief under the citizens suit section of Part 201 when its "enjoyment" of the natural environment has been adversely affected by another party.
If the federal government wants to impose a monetary civil penalty for illegally filling a wetland, the individual has a right to a jury trial, doesn't he? That's what the United States Supreme Court held in Tull v. United States, 481 U.S. 412 (1987). But does the Michigan Constitution guarantee the same right? Sue Sadler, chair of the Natural Resources, Energy, and Sustainability Committee, reports that our court of appeals said "no" in DEQ v. Morley. Stay tuned; the losing defendant has asked the Michigan Supreme Court to review this one.
Finally, Doug McClure, chair of the Environmental Litigation and Administrative Practice Committee, considers how the modern administrative state and the doctrine of primary jurisdiction can affect the ancient common law right to sue your next door gasoline station for damages in nuisance. Gasoline vapors from leaking tanks can certainly unreasonably disrupt the operation of a health clinic. Why, then, should a court dismiss a nuisance action simply because the Department of Environmental Quality hasn't yet approved a corrective action plan for the offending gas station? Doug's discussion of Carson City Hospital v. Quick-Sav Food Stores explains why.
We would like to print several articles in each issue of the Journal and would warmly welcome an article from you. Your article doesn't have to be long; our readers prefer articles that are concise and of practical value. If you have an idea you'd like to write about, contact me at firstname.lastname@example.org or (313) 418-0913.
Christopher J. Dunsky
Editor, Michigan Environmental Law Journal