Petition for Writ of Certiorari — Pure Waters, Inc. v. Michigan Department of Natural Resources

Supreme Court brief1996

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Text

Supreme Court, U.S.

FIL&D

UY) 96 56 JUL 1 119%

QFEICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PURE WATERS, INC.

Petitioner,

MICHIGAN DEPARTMENT OF

NATURAL RESOURCES,

et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

M. JEAN LIGON* DAVID S. BAILEY*

Ligon & Naber 16397 Triple Creek Lane

822 E. Grand River Beaverdam, Virginia 23015

Brighton, Michigan 48116 (804) 227-3122

(810) 229-7237

*Counsel of Record

Attorneys for Petitioner

ee eet at

QUESTIONS PRESENTED

For over two decades, this Court has held that the

National Environmental Policy Act (“NEPA”) requires that

every “significant impact” and “environmental consequence”

of a federally funded project be given a “hard look” before a

final decision is made. In this case, a three judge panel of

the Sixth Circuit held that if a project’s significant impacts

are deemed “beneficial”, ie., the project improves an existing

environmental problem, an environmental impact statement

(“EIS”) is per se unnecessary. In like fashion, the Panel

applied the same test to the Michigan Environmental

Protection Act (“MEPA”), holding that the Michigan

prohibition against continued pollution from any project when

a feasible, non-polluting alternative existed, was also not

applicable where an existing environmental situation will be

improved by the proposed project. The questions presented

are:

1. Whether a court may rule, as a matter of law,

that a project’s significant impacts are all beneficial and

therefore, no further NEPA evaluation is required, an issue

in which the courts of appeals are in conflict?

2. Whether delaying evaluation of the costs and

ability of a project to meet federal statutory requirements

until after project completion is an improper segmentation

of the NEPA analysis mandate?

3. Whether a Federal Court that has exercised

sole jurisdiction over all area combined sewer overflow

projects erroneously interprets state law, and thereby usurps

state authority, by ruling that any new project which improves

existing environmental conditi ions, even though such project

continues to pollute, is exempt from the Michigan

Environmental Protection Act, which absolutely bars any

project that pollutes the environment when a feasible

nonpolluting alternative exists?

Actual parties to the proceedings in the Court of

Appeals were:

Pure Waters, Inc. (an association of residents and property

owners with no other corporate or parent company

affiliations),

Michigan Department of Natural Resources, Roland Harms,

Director;

Oakland County Drain Commission, George W. Kuhn,

Comunissioner;

Chapter 20 Birmingham Sewer Overflow Drain Board,

George W. Kuhn, Chairman;

City of Birmingham, Thomas M. Markus, City Manager,

Respondents herein.

TABLE OF CONTENTS

THE SIXTH CIRCUIT’S RULING ALTERS

THIS COURT’S LONG ESTABLISHED

PRECEDENTS IN APPLYING NEPA BY

HOLDING THAT NO SIGNIFICANT

IMPACT ANALYSIS IS REQUIRED

WHERE THE ONLY PROPOSED PROJECT

IMPACTS ARE DEEMED TO BE

BENEFICIAL, BECAUSE THE PROJECT

IS INTENDED TO IMPROVE EXISTING

CONDITIONS, EVEN WHERE ADVERSE

IMPACTS WILL REMAIN, A HOLDING IN

CONFLICT WITH OTHER

CIRCUITS .. isictectisdepaniehaicansnieahibebehuanecsnbecdipined

SPOS S ESS SEES ESSE EEE ESE SEEEEOSOSESESSEEOSESESEEEESESEEEEESES

SOO SESSE SES ESES ESSE SSESSESESSEEESEOS

SS SSSOS SSE ES EEE SESEEESESESSEEE SE SESESEEESESESSESEESSEES

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| cine

CONCLUSION

APPENDICES

THE LOWER COURT IMPROPERLY

ALLOWED DEFENDANTS TO SEGMENT

THEIR NEPA ANALYSIS BY DEFERRING

EVALUATION OF THE PROJECT’S

ABILITY TO MEET FEDERAL

STATUTORY WATER QUALITY

REQUIREMENTS, AN IMPORTANT

QUESTION OF FEDERAL LAW NOT

PREVIOUSLY DECIDED BY THIS

SIAR sahcetenitensieisaceinsalcacidislastaabsibldldassstecicestoans

THE SIXTH CIRCUIT DECISION USURPS

STATE LAW AUTHORITY BY

EXEMPTING PROJECTS FROM MEPA

REVIEW WHICH MERELY IMPROVE

EXISTING CONDITIONS IN DIRECT

CONTRAVENTION OF MICHIGAN LAW

AND MICHIGAN SUPREME COURT

DECISIONS THAT PROHIBIT

CONTINUED POLLUTION WHEN A

FEASIBLE NONPOLLUTING

ALTERNATIVE EXISTS. ................2..0000

Pure Waters, Inc. v. Michigan Department of

Natural Resources, et al., No. 95-1498 (6th

Cir., April 15, 1996) per curiam opin.

(unpublished) pocbentibiiinbedeketininbces

Seeeeeeseeee

B. Pure Waters, Inc. v. Michigan Department of

Natural Resources, et ai., 883 F.Supp. 199

CEbaAs UNE RPO iskicemnicicinntndsccetasteliebtbineiisenbianses All

et Michigan Complied Laws, §§ 691-1201

I ee hasinccncinchaleichentscncchesinbecinnccninins A30

Table of Authorities

Page

Cases

Aberdeen & Rockfish Railroad Co. v. Students

Challenging Regulatory Agency Procedures,

422 U.S. 289 (1975).... spectalesadiaainhieabikaccntinese 8

Attorney General v. Thomas Solvent Co., 146 Mich.

App. 55, 380 N.W.2d. 53 (1985) iialeivelibdeneats 25

Baltimore Gas & Electric Company v. NRDC, 462

US. 87 (1983) i cictaiisidpieciannaenibeiione 8

Catron County Board of Commissioners v. U.S. Fish

and Wildlife Service, 75 F.3d 1429 _ Cir.

1996) : ieauaiaiaiionies 9, 13

City of Portage v. Kalamazoo County Road

Commission, 136 Mich. App. 276, 355 N.W.2d

913 (Mich. App. 1984) ............-cccseeressserseeeeees 24, 25

City of Rochester v. U.S. Postal Service, 541 F.2d 967

CE AE BOI citercsincicnssscistntcinnentciimeancimnnmntnie 18, 19

Charter Township of Huron, Mich. v. Richards, 997

F.2d 1168 (6th Cir. 1993)... ssiaeidilaaibissistiibiciiasio 8

Crounse Corp. v. I.C.C., 781 F.2d 1176 (6th Cir. 1986) ....8

Dickman v. Santa Fe, 724 F.Supp. 1341 (D.N.M.

1989) 18, 19

Environmental Defense Fund v. Marsh, 651 F.2d 983

(Sth 1981) 9,12

Eyde v. State of Michigan, 393 Mich. 453,225 N.W2d

1 (1975) 23, 26

Friends of Fiery Gizzard v. Farmers Home

Administration, 61 F.3d 501 (6th Cir. 1995) .......... 6

Michigan State Highway Commission v. Vanderkloot

(also cited as In Re Highway US24, in

Bloomfield Township, Oakland City), 392

Mich. 159, 220 N.W.2d 416 (1974).......... 23, 27, 28

Kleppe v. Sierra Club, 427 U.S. 390 (1976) . —

Pure Waters, Inc. v. Michigan Dept. of Natural

Resources, et. al., 883 F.Supp 199 (E.D.

a gg nt ANE hl ot 2

Ray v. Mason City Drain Commissioner, 393 Mich.

294, 224 N.W.2d 883 (1975) .00...2.0.0.0-. 1, 23, 24, 25

Robertson v. Methow Valley Citizens Council, 490

U.S. 332 (1989) 8, 19, 20

Sierra Club v. Lujan, 716 F.Supp. 1289, (D.Ariz.

1989) . ... 18, 19

Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 (1980), cert

denied, 449 U.S. 1096 (1981) 18

U.S. v. South Florida Water Management District, 847

F.Supp 1567 (S.D. Fla 1992), Aff’d in part,

rev'd in part and remanded on other grounds,

28 F.3d 1563 (11th Cir. 1994), cert. denied,

__ US. __., 115 S.Ct. 1956, 131 L.Ed.2d

848. 9, 13, 14

U.S. v. State of Michigan, 777 F.Supp. 1365 (E.D.

Mich. 1991) 3, 22

Statutes and Regulations

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1331 3

BB U BAS § BIOIAII OS seccicsisiccsecccscesesseersverssccesee 3

33 U.S.C. § 1311061 K(C) 17

33 U.S.C. § 1342(b) 22

42 U.S.C. § 4331 a

MCL § 324.1701 2

MCL § 691.1201 2

MCL § 691.1202 .. —-

MCL § 691.1203 ............... 3,23

an tg oh CENT OT . 28

MCL § 691.1205(2). me . 23, 28

FO Care MMOD sietitniniscicnicnieeghininsocdig co 13

40 CER. § 1502.2(d)............. soncsonnee .16

tn ih oo, TORE A . 10

40 CER. § 1502.14(a) ............ ob pnctnnescautanetnbstestaens 10

FOCI. © ESET) sein csscinctssececeseses secccsese 14

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner is an incorporated organization of residents

of the City of Birmingham, Michigan, including property

owners adjacent to the Linden Park Sewage Retention Basin,

a storm/sewer water collection basin being constructed in a

City Park (Linden Park) and residential area. Petitioner seeks

a Writ of Certiorari from the United States Court of Appeals

for the Sixth Circuit to review that Court’s three judge panel

decision (1) allowing defendants to segment evaluation of

federal statutory requirements for attainment of water quality

standards, and assessment of water quality impacts, until after

project completion; (2) ruling that the project’s only

significant impacts are beneficial, and therefore, as a matter

of law, required no further NEPA evaluation: and (3) the

Panel’s holding that the Michigan Environmental Protection

Act, the state’s primary environmental oversight statute!, is

inapplicable to projects which improve existing

environmental conditions, even where the project will

continue to pollute state waters compared to nonpolluting

alternatives, in contradiction to language of the act which

specifically prohibits such conduct.

1 The Michigan Supreme Court described the Michigan

Environmental Protection Act as “world famous”, noting that the

Federal Clean Water Act as well as several other states have followed

its example. Ray v. Mason, 393 Mich 294, 298, 224 N.W.2d 883,

887 (1975).

OPINIONS BELOW >

The April 15, 1996 per curiam opinion of the three

Judge Panel of the Sixth Circuit was not recommended for

publication. It is reproduced in Appendix A to this petition.

The April 21, 1995 opinion of the United States District Court

for the Eastern District of Michigan is reported at 883 F.Supp.

199 (E.D. Mich 1995) and reproduced in Appendix B.

STATEMENT OF JURISDICTION

The judgement of the three Judge Panel of the Sixth

Circuit was entered on April 15, 1996. No petition for

rehearing en banc was requested because the 6th Circuit had

unanimously rejected rehearing in an earlier case involving

the same legal issue. Jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

This case involves the application of the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331, and

the Michigan Environmental Protection Act (“MEPA”),

Michigan Compiled Laws (MCL) § 691.1201. MEPA was

recodified in 1995 and moved to MCL § 324.1701, et seq.

No changes were made to the law that affect this case.

Applicable MEPA statutes are cited herein under the former

codification, the relevant references for this case. MEPA is

reproduced in Appendix C.

STATEMENT OF THE CASE

This case involves the correction and treatment of

“combined sewer overflows” (“CSO”), a pollution condition

that exists when rainwater enters the same collection system

used to convey human sewage and industrial wastes to a

central treatment facility. Wher rainfall overloads these

and sewage “overflows” at designated points to avoid sewage

backup into homes and streets. CSOs are a national problem

of major proportions; the Environmental Protection Agency

(“EPA”) has estimated that more than forty billion dollars

may be needed to correct older system CSO problems.2

The jurisdiction of the district court concerning NEPA

was invoked under 28 U.S.C. §1331, an action under federal

law, 42 U.S.C. §4331, and the Declaratory Judgement Act,

28 U.S.C. § 2201-2202. Jurisdiction for MEPA claims results

from the Court’s pendent jurisdiction over state law issues

concerning a common nucleus of operative fact. State

jurisdiction exists under MCL § 691.1202 & 1203, which

permits any person or corporation to sue the state and any

political subdivision for the protection of air, water and other

natural resources. In addition, the District Court for the

Eastern District of Michigan has previously asserted

continuing jurisdiction over all CSO programs in the Detroit

area, on the basis that such programs were related to previous

proceedings of the court. U.S. v. State of Michigan, 777

F.Supp. 1365 (E.D. Mich. 1991).

2 EPA 1992 Needs Survey and Report to Congress (September,

1993), estimates the national CSO correction cost at $41.2 billion.

The Rouge River System drains 467 square miles in

Oakland, Wayne and Washtenaw Counties in southeastern

Michigan. It is polluted by CSO discharges. Indeed, the entire

Metropolitan Detroit area, to which the City of Birmingham’s

system is connected, has large areas of its waters closed or

restricted to human contact as a result of CSO pollution.

Billions of federal and state dollars have been spent in the

Detroit area for sewer and CSO treatment, often with limited

success, and doubtless billions more will be spent in the

future.

The City of Birmingham proposed to correct its

contribution to the area CSO problem by collecting and

rerouting its sewer overflow points to a single sewer

“retention” or holding basin, to be located in a public park

and residential area, which would hold the combined

wastewater until it could be accepted into the collection

system for transport to central treatment facilities in Detroit.

Federal grant funds would pay for the majority of the

construction cost, estimated along with other system changes,

to be about $35 million.

From the very beginning, the proposed project was

conceded as inadequate to meet state or federal water quality

requirements. This was because the retention basin size was

too small to hold the combined volume of collected storm

and sewer water, and thus it disgorges its sewage and

industrial waste contents at least 6-9 times annually into the

River. The resultant discharges of at least 43 million gallons

of combined wastewater, with chlorine added as a

disinfectant, would pour into the Rouge River, a stream about

5-6 feet wide and knee deep at the discharge point, as it winds

through the back yards of residential homes.

The evidence that this partially treated discharge of

sewage and industrial wastes will fail to meet water quality

standards and will continue to pollute the Rouge River was

overwhelming. The Environmental Assessment (“EA”)

prepared by the Michigan Dept. of Natural Resources

or partial sewer separation might be required to meet water

quality standards. (R.86; EA P.21) Unrefuted expert testimony

at trial indicated that this partially treated wastewater will

contain a host of disease organisms from human waste,

industrial toxins and added chlorine, a well known toxicant

to aquatic life. (Jude TR I-127, 128, 132). The City’s own

engineer admitted that the partial treatment provided by the

basin would remove only 30 to 60 percent of water pollutants.

(Alix TR HI-197).

Faced with such massive evidence of pollution

potential, the trial court itself was forced to concede that

pollution of the Rouge would continue and that water quality

standards would be violated: “the necessity ...to discharge a

limited amount of combined sewer overflow...will be

polluting. I recognize that.” (Court TR I-130) In response

to counsel’s argument that there will be water quality

violations as a result, the Trial Court responded “Sure there

is.” (Court TR I-124, 125).

The proposed plan and EA, however, postponed all

water quality impact evaluation until “Phase IIT” of the

project, to be implemented after the project was built and in

operation. By so doing, alternatives that would totally remove

sewage and industrial waste that cause such water quality

violations, i.e., sewer separation, were compared to a retention

basin which contained no provision for meeting water quality

mandates, causing the other alternatives to appear either

ridiculously expensive or too burdensome.*

As a consequence, when respondents issued their

FONSL, it was based upon a project that the State knew was

unlikely to meet water quality standards, contained no

evaluation of water quality impacts (deferred until Phase II),

and which would continue to pollute. Both the Trial Court

and the: Court of Appeals held, however, that the project’s

adverse water quality impacts were not significant per se

under NEPA where the project impacts were “beneficial”,

ie., they were designed to improve existing conditions.

The Sixth Circuit panel did not address the lack of

water quality evaluation, nor the deferral or segmentation of

consideration of water quality impacts until after project

completion, or the failure to assess the costs and additional

structures necessary to meet state water quality standards.

Rather, the 6th Circuit never even considered water quality

impacts, focusing instead on another recent Sixth Circuit

Panel decision holding that an environmental impact

statement is not required where the project is deemed to be

beneficial and therefore, all significant impacts are deemed

to be beneficial. Friends of Fiery Gizzard v. Farmers Home

Administration, 61 F.3d 501 (6th Cir. 1995). “When viewed

3 Both the Trial Court and the Court of Appeals focused on the most

expensive of three separation options, pointing to the great disruptros

of streets and high costs. The record reveals, however, that far less

disruptive and less costly separation alternatives were available that

would have eliminated discharges of combined wastes to the Rouge

River.

under that standard...” the Sixth Circuit Panel upheld the

FONSL App. A.

In so doing, the court constrains all NEPA analysis to

a preliminary finding of project purpose, regardless of the

range of consequences for any given action, effectively

negating meaningful analysis of any project perceived to

“improve environmental conditions.”

REASONS FOR GRANTING THE WRIT

L THE SIXTH CIRCUIT’S RULING ALTERS

THIS COURT’S LONG ESTABLISHED

PRECEDENTS IN APPLYING NEPA BY

HOLDING THAT NO SIGNIFICANT IMPACT

ANALYSIS IS REQUIRED WHERE THE ONLY

PROPOSED PROJECT IMPACTS ARE

DEEMED TO BE BENEFICIAL, BECAUSE

THE PROJECT IS INTENDED TO IMPROVE

EXISTING CONDITIONS, EVEN THOUGH

ADVERSE IMPACTS WILL REMAIN, A

HOLDING IN CONFLICT WITH OTHER

CIRCUITS.

For over two decades this Court has repeatedly held

that NEPA imposes a mandatory duty to evaluate “every

significant impact” of a proposed action, Baltimore Gas &

Electric Company v. NRDC, 462 U.S. 87, 97 (1983), while

providing data and information that serves as a “spring board

for public comment”, Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 349 (1989). The “sweeping policy

goals” of section 101 of NEPA are “realized through a set of

‘action-forcing’ procedures that require that agencies take a

‘hard look’ at environmental consequences.” Charter

Township of Huron, Mich. v. Richards, 997 F.2d 1168, 1173

(6th Cir. 1993), citing Kleppe v. Sierra Club, 427 U.S. 390,

410, n.21 (1976). Indeed, the cases from this Court and the

general federal judiciary on this point are well recognized.

See also, Aberdeen & Rockfish Railroad Co. v. Students

Challenging Regulatory Agency Procedures, 422 U.S. 289

(1975); and in the Sixth Circuit, Crounse Corp. v. I.C.C.,

781 F.2d 1176 (6th Cir 1986).

te ee a as BENT

Sem ee iit ponrE a .

Now two recent cases from the Sixth Circuit seek to

eliminate NEPA scrutiny of projects where the court perceives

that the “only significant impacts are beneficial” and even

further extends such logic to those projects where the

“principal impact” is beneficial as well. These holdings

undermine the very purpose of NEPA analysis, and are

contrary to NEPA regulations and the rulings of at least three

other circuits. Environmental Defense Fund v. Marsh, 651

F.2d 983 (Sth Cir 1981); Catron County Board of

Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d

1429, 1437 (10th Cir 1996); U.S. v. South Florida Water

Management District, 847 F. Supp 1567 (S.D. Fla 1992),

Aff’d in part, rev'd in part and remanded on other grounds,

28 F.3d 1563 (11th Cir. 1994), cert. denied__ US__, 115

S. Ct. 1956, 131 L. Ed. 2d 848.

In rejecting NEPA’s “hard look” mandate for projects

where significant impacts are perceived to be beneficial, the

Court improperly, and prematurely, relieves the decision-

maker of a meaningful analysis of environmental impacts or

alternatives. In the case at bar, where the City of Birmingham

is proposing to address its CSO problem and eliminate

multiple untreated overflow points by combining them all

into one partially treated overflow, the Court excuses the need

for meaningful evaluation of discharge impacts, or the

analysis of equivalent alternatives, simply because the

project’s overall impact is deemed “beneficial.” In so holding,

the Court declares that the remaining water quality violations

and pollution are per se not significant environmental impacts

and therefore not subject to NEPA evaluation.

The Sixth Circuit’s cursory conclusion that the FONSI

decision was reasonable in light of additional problems

associated with sewer separation alternatives underscores the

point: sewer separation alternatives which eliminated sewage

and industrial wastes altogether were compared to the costs

and problems associated with a retention basin which would

not meet such requirements and would continue to violate

water quality standards. Based upon such a biased

comparison, of course the retention basin proposal looks

good. This stilted comparison, however, violates the “heart

of the EIS” evaluation, which “should present the

environmental impacts of the proposal and the alternatives

in comparative form.” 40 CER. § 1502.14. CEQ regulations

require agencies to “rigorously explore and objectively

evaluate all reasonable alternatives....” 40 CFR § 1502.14(a).

Petitioner and the final decision maker were denied the basic

NEPA analysis the law requires.

This case has tremendous implications for the

expenditure of scarce federal and state water pollution funds.

Although improvement of existing pollution conditions is

always a worthy objective, federal law and common sense

demand that such funds be spent not only in the most effective

manner, but also in a manner that will also meet the minimum

requirements of federal law -here, achievement of state and

federal water quality standards. Without this underpinning,

public funds simply promote more local “pork” projects that

provide only temporary solutions, eventually result in greater

EUAN AA (2 lies Dead wah WALLA eee a

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costs overall, and, even worse, little improvement in

conditions.4

The NEPA interpretation offered by the Sixth Circuit

fosters and promotes this very evil, by denying the application

of NEPA’s strict requirement that every decision be “an

informed” decision. At a time when billions of federal dollars

are at stake, the Sixth Circuit would virtually rule every

combined sewer overflow correction project exempt from

NEPA analysis because its primary impact is deemed

beneficial. In Michigan alone, dozens of such projects are in

various stages of proposal or construction, and not one has

* This is exactly what is happening with CSO projects in the Detroit

metropolitan area. Almost on the day that the Sixth Circuit issued its

opinion in this case, the Detroit papers ran a lead story describing the

incredible cost overruns, construction problems and water quality

impacts of the retention basin construction throughout the area.

“Sewage project a drain downriver”, David Sheparson, The Detroit

News, Section C, pg.1. The lead sentence reads: “A court-ordered

plan to prevent the discharge of raw sewage into the Detroit River

has skyrocketed in cost and might have to be scrapped.” Increased

costs were attributed to tunnel construction, soil conditions, tunnel

volume increase and added capacity to basins. The Twelve Towns

retention basin, the largest CSO facility in the area, has caused such

severe water quality problems that its receiving waters, Lake St. Clair,

a large lake that forms an international border between the U.S. and

Canada, has been closed to human contact recreation. NEPA issues

for every one of these area wide CSO projects was decided by FONSL

The Sixth Circuit view is in direct conflict with courts

in at least three other Circuits. The seminal case on this issue

was decided by the Fifth Circuit in 1981. In Environmental

Defense Fund v. Marsh, 651 F.2d 983, 993 (Sth 1981), the

Court stated:

The proper question is not the intent behind

the actions, but the significance of new

use will be beneficial in impact, a beneficial

impact must nevertheless be discussed in an

EIS, so long as it is significant. NEPA is

concerned with all significant environmental

effects, not merely adverse ones. (Citations

omitted).

5 Full and proper consideration of water quality impacts would have

included (1) the continuing costs and impacts of processing rain water

at the central wastewater treatment facility; (2) cost and impacts of

feeder pipe construction from the project site to Detroit; (3) the costs

and impacts of additional basin capacity to eventually eliminate

overflows and meet state water quality standards; (4) costs of cleanup

and impacts of continued water pollution until such time as water

quality standards are achieved; and (5) costs of eventual separation

of sewers from continued tree root damage, deterioration and age of

existing lines. None of these impacts were evaluated for this project;

and only some water quality impacts will be evaluated after the project

is finished.

iii

The Tenth Circuit recently issued an especially strong

opinion on this subject:

To interpret NEPA as merely requiring an

assessment of detrimental impacts upon the

environment would significantly diminish the

act’s fundamental purpose—to “help public

Officials make decisions that are based on

understanding of environmental

consequences, and take actions that protect,

restore and enhance the environment.” Citing

to 40 C.F.R. 1500.1(c), Council on

Environmental Quality (“CEQ”) Regulations.

: Catron County Board of Commissioners v. U.S. Fish and

Wildlife Service, 75 F.3d 1429,1437 (10th Cir. 1996).

The Tenth Circuit then stated, as if anticipating this

Appellant’s theory [beneficial impacts not

subject to EIS] would cast the judiciary as final

arbiter of what federal actions protect or

enhance the environment, a role for which the

| courts are not suited.

Catron County, 75 F.3d at 1437.

Finally, the District Court of the Southern District of

Florida in the Eleventh Circuit reached the same conclusion,

noting that measures intended to benefit the environment “do

not necessarily render them beyond the scope of NEPA’s

requirements.” U.S. v. South Florida Water Management

District, 847 ESupp. 1567, 1578 (S.D. Fla 1992), Aff’d in

part, rev’d in part and remanded on other grounds, 28 F.3d

1563 (11th Cir. 1994), cert. denied, __ U.S. ___, 115 S.Ct.

1956, 131 L.Ed.2d 848.

Further, the CEQ Regulations regarding NEPA do not

support the Sixth Circuit. CEQ regulations for significant

impacts include those impacts which are both beneficial and

adverse:

Significantly as used in NEPA requires

consideration of context and intensity: (b)

Intensity...The following should be considered

in evaluating intensity: (1) Impacts that may

be both beneficial and adverse. A significant

effect may exist even if the Federal agency

believes that on balance the effect will be

beneficial. 40 CER. § 1508.27(b)(1).

As noted in South Florida Water Management District

at 1578, “even the most well-intentioned environmental

project can have unintended negative effects.”

The Circuits are now divided on a fundamental

interpretive issue of NEPA: whether NEPA analysis can be

avoided for projects whose principal impact is beneficial or

otherwise designed to improve existing environmental

conditions, or whether such projects, even if beneficial in

purpose, must still be evaluated where significant impacts

are shown. On the facts of this case, where the beneficial

imopacts of a partial sewer overflow correction were deemed

sufficient to negate analysis of the adverse remaining water

quality impacts, including continuing pollution and further

®@

Ange ga A

violations of water quality standards and, further, sufficient

to negate NEPA analysis of alternatives that would eliminate

such impacts, this Court is squarely presented with the

necessary factual setting to resolve the existing conflict

among the circuits.

If THE LOWER COURT IMPROPERLY

ALLOWED DEFENDANTS TO SEGMENT

THEIR NEPA ANALYSIS BY DEFERRING

EVALUATION OF THE PROJECT’S ABILITY

TO MEET FEDERAL STATUTORY WATER

QUALITY REQUIREMENTS, AN

IMPORTANT QUESTION OF FEDERAL LAW

NOT PREVIOUSLY DECIDED BY THIS

COURT.

CEQ Regulations speak directly to the issue of

compliance with other environmental laws:

Environmental impact statements shall state

how alternatives considered in it and decisions

based on it will or will not achieve the

requirements of sections 101 and 102(1) of the

Act and other environmental laws and policies

(emphasis added).

40 CER. §1502.2(d).

In a project whose sole purpose was to enable the

Rouge River to meet Federal water quality requirements, the

Court allowed the deferment of any evaluation of whether,

or how, the project could meet those requirements until after

the project was constructed. Although the NEPA holding of

the 6th Circuit was based upon the conclusion that the “only

significant impacts of the project were beneficial” (App. A),

both courts below recognized that the resultant sewage

retention basin discharges would clearly include the discharge

of human sewage, industrial waste, toxic levels of chlorine

and other contaminants which would continue to cause water

quality violations and pollution because the basin provided

only partial treatment for wastewater discharges.®

Nevertheless, both Courts refused to require defendants to

evaluate either the project’s ability or its cost to meet water

quality standards.

From the beginning, Petitioner asserted that any fair

comparison of alternatives must include the costs of water

quality compliance, particularly when other alternatives

would eliminate sewage and industrial waste discharges,

while the retention basin involved continued discharge of

such wastes and a need for further treatment. Petitioner also

reminded the Court that compliance with water quality

Standards was an absolute mandate of federal law, thus a

binding condition on any adopted alternative. See, Clean

Water Act, 33 U.S.C. § 1311(6\(1)(C).

Yet defendants performed no such analysis, refusing

to assess (1) the existing water quality of the Rouge River at

the proposed discharge point; (2) the ability of the stream to

accept the anticipated wastewater discharges; or (3) the final

treatment requirements necessary to meet water quality

standards. This despite unrefuted expert testimony that the

retention basin could not, as designed, meet water quality

standards.

Rather, defendants asserted that water quality

compliance would be part of “Phase IIT” of the project, an

Sixth Circuit opinion acknowledges later, third stage construction of

additional controls, if necessary, to comply with water quality

standards. App. A.

evaluation of retention basin performance after it was

constructed and placed into operation. While any project’s

success or failure can be evaluated after it is placed into

operation, as it should be, the deferred evaluation of any major

project component during the decision process eliminates a

critical part of the alternatives analysis required by NEPA.

Sewer separation alternatives might have different costs, or

present different problems in their implementation compared

to a retention basin, but separation eliminates the discharge

of such wastes. Such an option is not fairly compared to an

alternative that continues such discharges without analysis

of the costs and facilities necessary to meet federal

requirements for water quality.

Furthermore, the very concept that this project has

“only” beneficial impacts derives from the failure of the court

to consider the adverse impacts of 43 million gallons of

partially treated sewage dumped into a stream only a few

feet wide and inches deep.

The lower Federal courts have addressed the concept

of “segmentation” of NEPA analysis, Dickman v. Santa Fe,

724 F. Supp 1341 (D.N.M. 1989); Sierra Club v. Lujan, 716

F. Supp 1289 (D. Ariz. 1989); City of Rochester v. U.S. Postal

Service, 541 F.2d 967 (2nd Cir., 1976); Susquehanna Valley

Alliance v. Three Mile Island Nuclear Reactor, 619 F. 2d

231 (3rd Cir., 1980), cert. denied, 449 U.S. 1096 (1981). In

the previous cases, however, such segmentation has involved

sith Ain Wl aed Slade iaiole De whl 8s

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the separation of a large scale project into several parts, such

as dividing a highway project into several “segments.”7

Although never decided by this court, such segmentation has

been consistently struck down:

The rule against segmentation was developed

to insure that interrelated projects, the overall

effect of which may be environmentally

significant, not be artificially divided into

smaller, less significant actions. Cites omitted.

Dickman at 1345.

One of the principal concerns for such segmentation

was the potential to “foreclose the opportumity to consider

alternatives.” Id. After-the-fact analysis does not substitute

for timely NEPA evaluation. “[PJost hoc compliance with

NEPA is unlawful.” Sierra Club v. Lujan, 716 F.Supp. at 1293,

citing Robertson v. Methow Valley Citizens Council. “To

permit noncomprehensive consideration of a project...would

provide a clear loophole to NEPA.” City of Rochester, 541

F.2d at 972.

Here, defendants have segmented compliance with

the project’s very purpose, i.e., the attainment of water quality

Standards, into an after-the-fact project “phase”, a blatant

] Until this case, no court has allowed segmentation of parts of a

single project as discrete and self-contained as the iocation and

construction of a single, individual sewage retention basin. In the

one case addressing segmentation, this court ruled that there was no

obligation to prepare as impact statement as to regional effects where

no regional action was proposed. Kleppe v. Sierra Club, 427 US.

390, 399-402 (1976).

attempt to avoid accountability for a federal requirement

defendants simply chose to ignore. The result is a project

decision utilizing federal money that makes no attempt to

comply with or consider federal law.

The segmentation of existing federal or state

requirements which are applicable to the given project defeats

NEPA’s alternative analysis purpose, if not the entire NEPA

mandate. It is not the “hard look” required by NEPA, nor

does it disclose the relevant information required for the

public role in the decision process. Robertson, 490 U.S. at

349. Moreover, the failure to account for existing

requirements of law exposes the project to future unexpected

high costs or even failure of original purpose. The analysis

required by NEPA, both in cost and technical assessment, is

designed to force acceptance of the consequences of meeting

legal requirements as well as the particular purposes of the

project. The failure to consider meeting water quality

requirements as a significant impact requiring review is a

repudiation of the requirement to define the issues and provide

a clear basis for choice among options by the decisionmaker

and the public. This is particularly agregious where the very

purpose is to eliminate water quality violations.

Therefore, Petitioner asks this court to make clear that

the requirements of law, just as project construction

components, cannot be segmented and thus avoid NEPA

analysis.

sh Se onda nr CA gata

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Ii THE SIXTH CIRCUIT DECISION USURPS

STATE LAW AUTHORITY BY EXEMPTING

PROJECTS FROM MEPA REVIEW WHICH

MERELY IMPROVE EXISTING CONDITIONS

IN DIRECT CONTRAVENTION OF

MICHIGAN LAW AND MICHIGAN SUPREME

COURT DECISIONS THAT PROHIBIT

CONTINUED POLLUTION WHEN A

FEASIBLE NONPOLLUTING ALTERNATIVE

EXISTS.

Petitioner recognizes that this Court infrequently

grants review of federal court interpretations of state law since

such decisions are not binding upon state courts and often do

not decide issues of national importance. The decision of

the Sixth Circuit in this case, however, should be reviewed

because (1) the federal district court has taken jurisdiction

over all cases affecting the Detroit area CSO program, thereby

denying any state court review of any aspect of the CSO

program under any condition; and (2) the Sixth Circuit has

applied its beneficial impact test for NEPA to a state law

which contains no such provision, and which, in fact,

specifically prohibits any project which will continue to

pollute the state’s natural resources when another alternative

is feasible. In short, the Sixth Circuit has imposed its federal

view of environmental regulation to weaken established

Michigan law, creating disparity and injustice between state

and federally regulated projects and denying the state its

proper role in pollution abatement.

The Federal District Court has been an active player

in the effort to control Detroit area CSOs, and has indicated

that it will continue to exercise jurisdiction over any issues

arising under or impacting the CSO correction program,

notwithstanding any other state authority. U.S. v. State of

Michigan, 777 F.Supp. 1365. Thus, all CSO questions

regarding NEPA, either permits, enforcement and related

issues must be filed in federal court, or they will be removed

to federal court by defendants to avoid the application of

more stringent state law.®

The practical effect of this decision has been to deny

any review of state law by the state court and to place the

entire area CSO abatement program under sole federal

supervision and control, without any finding that state law is

inadequate or unqualified to address these issues, and despite

the fact that Michigan has been “delegated” permitting and

water quality program implementation under the Clean Water

Act by the Environmental Protection Agency. See, e.g, 33

U.S.C. § 1342(b).

Another effect of the court’s ruling is to eliminate

application of MEPA’s stringent pollution prohibition and

its provision for agency accountability with respect to

selection or authorization of alternatives. Under these

conditions, sweeping determinations with respect to state law,

as here, have great practical reach. They fundamentally alter

the state’s CSO abatement program without the state ever

being able to interpret and apply its own laws, while stripping

8 The first action by Petitioners in this case was to seek a temporary

restraining order under state law (MEPA) in Michigan state court.

That action was promptly removed to the federal district court by

defendant City of Birmingham. Petitioners later non-suited its TRO

request and filed the present action under NEPA and MEPA in the

federal court.

ee ee

the State’s citizens of their statutory right to seek review of

agency actions under the strict MEPA standard.

In addition to exercising its own federal control over

CSO projects, the District Court decision, with concurrence

by the Sixth Circuit, has now eliminated the application of

MEPA altogether to CSO programs by declaring that MEPA

does not apply to projects which improve the environment, a

holding for which there is no precedent and in direct conflict

with the application of MEPA by the Michigan Supreme

Court in other cases in which the disputed project would have

improved existing conditions. Ray v. Mason City Drain

Commissioner, 393 Mich 294, 224 N.W. 2d 883 (1975); Eyde

v. State of Michigan, 393 Mich 453, 225 N.W. 2d 1 (1975);

Michigan State Highway Commission v. Vanderkloot, 392

Mich 159, 220 N.W. 2d 416 (1974).

MEPA is a very direct state law. It states in clear

terms that whenever a plaintiff makes a prima facie showing

of pollution, impairment or destruction of the state’s natural

resources, plaintiff is entitled, as a matter of law and without

court discretion, to injunctive relief prohibiting such project.

Moreover, the statute specifically precludes an agency from

approving any action that pollutes, impairs or destroys the

State’s natural resources unless no feasible and prudent

alternative exists. MCL § 691.1203, 1205(2). Ray v. Mason,

393 Mich. at 306, 224 N.W.2d at 889.

The Court’s ruling that no impairment can exist, and

therefore, no prima facie case can be made, if the project

improves existing conditions effectively nullifies this

fundamental provision of Michigan law. Under MEPA,

plaintiffs need only show probable pollution to make a prima

facie case; the burden then shifts to defendants to show that

no alternative exists. Ray v. Mason at 393 Mich. at 309, 224

N.W.2d at 889. In the case now before the court, the District

Court conceded that pollution would occur and that water

quality standards would be violated. The state admitted in

the EA that the discharges of chlorine alone could cause toxic

effects and that predicted levels of discharge could kill aquatic

life. Adverse testimony by the state manager in charge of

the project testified at trial that the sewer separation options

offered by Petitioner were feasible alternatives and, in fact,

have been approved in other communities (Kamppinen, TR

I-64).

Thus, without question, Petitioner met its burden of

showing that pollution would result from the proposed project

and that feasible alternatives existed. The District Court

avoided the otherwise mandated finding for Petitioners by

asserting that MEPA did not apply. Ignoring the Statute’s

prohibition of “pollution” of natural resources, and focusing

only on the term “impairment” (a term most commonly

applied in MEPA cases when a “renewable” resource, i.e.,

trees, is involved), the District Court ruled that “impairment”

meant to “weaken or make worse”, and since the project

purpose was to improve existing conditions, MEPA did not

apply, as there was no “impairment” to warrant state court

jurisdiction, citing City of Portage v. Kalamazoo County Road

Commission, 136 Mich. App. 276, 355 N.W.2d 913 (Mich.

App. 1984).

Both the District Court and the Sixth Circuit focused

on one statement in City of Portage that, as an initial

“threshold” of jurisdiction, “the court should evaluate the

situation prior to the proposed action and compare it with

the probable condition afterwards.” Id. at 915. However, as

the Michigan Court made clear one page later in the opinion,

that evaluation was only for the purpose of making an initial

determination of pollution, impairment or destruction; and

even that evaluation must use the unpolluted condition as

the “situation prior.” Attorney General v. Thomas Solvent

Co., 146 Mich. App. 55, 64, 380 N.W.2d. 53, 58 (1985).

Where the project would cause pollution, as was shown

repeatedly at trial, MEPA “does not contemplate or permit a

determination that a prima facie case has been made by the

balancing of disadvantages against advantages of the

defendant’s proposed action.” City of Portage, 355 N.W.2d

at 916. Yet, that is exactly what both courts did.

The Michigan Supreme Court has made clear that

beneficial purpose and impact does not negate MEPA’s

pollution impairment prohibition or the requirement that such

impacts be evaluated. In Ray v. Mason, supra, where the

State high court enjoined a “beneficial” drainage project,

plaintiff’s allegation was that the lowering of the water table

might be harmful to aquatic plants dependent on established

water levels. Ray v Mason, 224 N.W.2d at 890, n.11.

Defendants asserted that the wetlands would not dry up, and

that the completed project might enhance wildlife, benefit

agricultural output and lessen rather increase the degrading

effects of flows on lower river waters. Id., 224 N.W2d at

891, n.12. The Court explained that the evidence required

for defendants to show that there is no pollution or impairment

will vary with the type of pollution. In some cases it may be

sufficient to use expert testimony, while in others field studies,

actual tests and analysis may be required. Id., 224 N.W.2d at

890-891. If defendants attempt to rebut a prima facie case

by showing that no feasible alternative exists, the Judge must

set out those facts that lead to such a conclusion. Jd., 891.

The Michigan Supreme Court never stated, implied or

accepted in any way that defendant’s claim that the project

would improve environmental conditions precluded a prima

facie case and rendered MEPA inapplicable.

In another situation very similar to the case at bar, the

State high court enjoined a sewer line construction project (a

“beneficial project”) until pollution, impairment and

destruction of plaintiff’s property could be avoided by

development of an alternative route. Eyde v. State of

Michigan, 393 Mich. 453, 225 N.W.2d 1 (1975). Rejecting

the lower court’s finding that the plaintiff’s claim was nothing

more than a dilatory delaying tactic, the State Supreme Court

found that the right of citizens to prevent pollution and insist

on viable alternatives was fundamental to MEPA. Again,

the beneficial impact of constructing public sewer lines, just

like this retention basin, is obvious. But that did not preclude

making a prima facie case or alter the fact that significant

adverse impacts may also occur, and under Michigan law,

that feasible nonpolluting alternatives must be elected.

In one of the earliest decisions on MEPA, the

Michigan Supreme Court described MEPA as:

[A] comprehensive effort...[by] the legislature

to preserve, protect and enhance the natural

resources so vital to the well being of this

state... This language does not confine itself to

any One narrow area, but applies to any action

on the part of any public agency... which has

harmed the environment or is likely to do

so...including planning and construction of the

State’s highway system and a myriad of other

Michigan State Highway Commission v. Vanderkloot, 392

Mich 159, 186, 220 N.W.2d 416, 427 (1974).

With respect to projects involving an “improvement”

of conditions, the court was very specific:

Referring...to our prior observations relative

to the exercise of a proper discretion in the

choice of alternatives in accomplishing the

“improvement” purpose...it is clear that, since

[MIJEPA, there are new considerations in the

proper exercise of Commission discretion in

the choice of alternatives? Id, 220 N.W2d

at 428.

The court then held that even in the taking of a piece

of property for a highway easement, the agency must take

into consideration that “there is no feasible and prudent

alternative” if the taking involves pollution, impairment or

destruction. Id. It is ironic indeed to note that the court

9 The Michigan Supreme Court has held that the State Constitution

mandates legislation to protect Michigan natural resources, which

are of “paramount public concern” (emphasis courts’). Vanderkloot,

220 N.W.2d at 426. MEPA is just such a legislative enactment in

response to that mandate, and “must be read in concert” with other

states statutes. Id. at 427. By executive order, all agencies are bound

to observe MEPA provisions. Id. at 429; Michigan Executive Directive

1971-10.

Stated in dicta that the burden for pollution analysis for the

highway department should not be overbearing, as the NEPA

required a rigorous environmental analysis of federally

funded projects. Id., 220 N.W.2d at 429. Here, Petitioner got

neither.

MEPA is an extremely important State environmental

Statute, enacted under a State constitutional mandate, which

has provided a level of environmental protection to Michigan

citizens since 1970 that plainly exceeds that provided by

applicable federal law. In an appalling over overreaching

decision by a court which has assumed sole jurisdiction over

all area CSO projects, and relying upon out-of-context

language from a state appellate court opinion, in an issue of

first impression, the Federal Court has rendered MEPA

inapplicable to the very injuries the law was created to

address. Substituting its own “incremental” approach to

pollution abatement, the Federal Court has placed its view

of environmental protection above that of more stringent state

law. The Court showed no deference to state law, and ignored

the constitutional separation of powers between federal and

State laws.

MEPA differs fundamentally from federal law in

mandating that no project shall be undertaken that is “likely

to” pollute, impair or destroy state natural resources. MCL §

691.1203(1). In protecting its natural resources, state law

demands that any project alternative which does not pollute

State natural resources must be chosen. MCL § 691.1205(2).

a polluting project under theories soundly rejected by previous

State law, the Federal courts have usurped state authority,

and imposed their view of environmental control over the

entire regional CSO program. At a Particularly crucial

juncture in the history of this nation, where deference to state

laws and state’s rights are being intensely reviewed, and the

cost of environmental programs equally scrutinized, the

actions of the Federal court with respect to state law are not

only legally wrong, but fundamentally flawed and should be

reversed.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

M. JEAN LIGON* DAVID S. BAILEY*

Ligon & Naber 16397 Triple Creek Lane

. 822 E. Grand River Beaverdam, Virginia 23015

Brighton, Michigan 48116 (804) 227-3122

(810) 229-7237

*Counsel of Record

Attomeys for Petitioner

No.

SUPREME COURT ne UNITED STATES

October Term, 1995

PURE WATERS, INC.

Petitioner,

MICHIGAN DEPARTMENT OF

NATURAL RESOURCES,

et al.,

Respondents.

APPENDICES

M. JEAN LIGON* DAVID S. BAILEY*

Ligon & Naber 16397 Triple Creek Lane

822 E. Grand River Beaverdam, Virginia 23015

Brighton, Michigan 48116 (804) 227-3122

(810) 229-7237

*Counsel of Record

Attorneys for Petitioner

a ee ee

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

No. 95-1498

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PURE WATERS, INC.

Plaintiff-Appellant

Vv.

MICHIGAN DEPARTMENT OF

NATURAL RESOURCES et. al.

Defendants-Appellees

BEFORE: BOGGS and DAUGHTREY, Circuit

Judges, and MATIA, District Judge.!

PER CURIAM. The plaintiff, Pure Waters, Inc. is a

citizen's group comprised largely of people residing near

Linden Park in Birmingham, Michigan. Pure Waters appeals

the district court's refusal to enjoin construction of an

underground sewage retention treatment basin in the park. It

' The Honorable Panl. R. Matia, United States District Judge for the

Northern District of Ohio, sitting by designation.

claims that the defendants, the Michigan Department of

Natural Resources, the Oakland County Drain Commission,

The City of Birmingham, and various other officials, violated

the National Environmental Policy Act (NEPA), 42 U.S.C.

§§ 4332 et seq., by failing to evaluate adequately the basin's

ultimate effect on the water quality of the Rouge River, into

which it is designed to drain and, further, that the defendants

violated the Michigan Environmental Protection Act (MEPA),

M.C.L. §§ 691.1201 et seq., by instituting a project that will

“pollute, impair or destroy” the environment. The district

court held that the Michigan Department of Natural Resources

had complied with the procedural mandates of NEPA and

that the plaintiff had failed to establish a prima facie case of

“impairment” under MEPA. The court therefore declined to

issue an injunction. We find no error and affirm.

FACTUAL BACKGROUND

This case had its origins in an action filed by the

Environmental Protection Agency in 1977 under the Clean

Water Act, 33 U.S.C. §§ 1251 et seq., against the city of

Detroit and some 40-odd other communities in the Rouge

River watershed in Eastern Michigan. At that time (and

possibly to date), the Rouge River was one of the most

polluted rivers in America, and the project at issue here,

among others, was designed to clean up the Rouge. In the

case of defendant City of Birmingham, the challenge was to

ameliorate the discharge of untreated sewage and storm water

into the river at 33 outflow points on “wet days,” when the

city's combined sewage and storm system could not handle

the volume produced by heavy rains.

In 1989, the Michigan Water Resources Commission

issued a “national pollution discharge elimination system

permit” to the City of Birmingham that required the control

of its combined sewer overflows by 1997. The permit

established three phases for the eradication of the damage to

the Rouge River caused by untreated sewage. In the first stage,

the city would operate, repair, and maintain existing facilities

to minimize the discharge. In the second stage, the city would

control sewer overflows to eliminate discharge of raw sewage

and protect the public health by 2005. Finally, in a third stage,

the city would add additional controls, if necessary, to comply

with water quality standards at times of discharge into the

Tiver.

The Linden Park underground basin was designed to

hold excess sewage during heavy rains until the sewer system

again has the capacity to carry it to the Detroit sewage plant,

as occurs on normal or “dry days.” However, during

extremely heavy rains, estimated to occur six to nine a year,

even the new retention basin would not be able to hold all

the sewage. Therefore, after “primary” treatment, which

includes skimming, settling, and disinfection with sodium

hypochlorite (a five percent chlorine solution), the excess

Sewage would be released into the river at Linden Park, rather

than at the 33 outflow points presently used. The project

would reduce overall discharge into the Rouge River from

222 million gallons annually to 43 million gallons, and that

overflow would be treated before it was discharged.

When challenges to the remedial plan developed,

Judge Feikens took jurisdiction over all permit questions at

the request of three of the Rouge River watershed

communities, including Birmingham. He appointed Jonathan

Buckley, a University of Michigan professor, as court monitor

to negotiate a settlement as the administrative hearings

progressed before the Michigan Water Resources

Commission. In June 1991, a settlement agreement included

revision of the original 1989 permit.

In 1992, the defendants sought federal and state loans

for the basin project and received engineering proposals. The

Birmingham City Commission appointed a citizens’

committee to hold public hearings on the proposed basin.

After considering the project’s impact, as well as the impact

and cost of alternatives, the citizen’s committee recommended

construction of the basin. After the Michigan Department of

Natural Resources notified the city in 1993 that the basin

met the permit’s requirements, the City Commission

approved the plan. In 1994, the Department completed an

environmental assessment, concluding that the basin would

have no significant long-term impact on water quality, and

that the environmental benefits of the basin outweighed the

short-term adverse effects. Bonds were issued by the city to

finance the project and construction began in December 1994.

At about the same time, Pure Waters filed an amended

complaint in district court, seeking to block construction of

the Linden Park retention basin. The district court denied

requests by Pure Waters for both a temporary restraining order

and a preliminary injunction, which the district judge treated

as a motion for a permanent injunction.* On appeal, Pure

2 The district court also denied the plaintiff‘s motion for a stay

pending this appeal of the denial of an injunction. As a result, we are

informed that construction of the basin is now substantially more

than 50 percent complete.

Waters complains that the defendant’s environmental

assessment and “finding of no Significant impact,” the so-

called FONSI, fail to meet the requirements of both NEPA

and MEPA, as well as the water quality standards of the Clean

Water Act.

Initially, the plaintiff challenges the defendant’s failure

to file an environmental impact statement evaluating the

quality of the water that would result from the six-to-nine

discharges of treated Sewage into the Rouge River each year,

which would occur despite the construction of the basin.

Experts for Pure Waters testified. for example, that the

chlorine from the disinfection treatment given the overflow

would adversely affect water quality. The plaintiff further

insists that the defendants’ plan to install the equipment

necessary to deal with such problems during the monitoring

period required in Phase III of the project is inadequate, citing

district court decisions from New Mexico, New Hampshire,

and New York.

But, as the district judge noted in his opinion, the

plaintiff's real complaint seems to be that the city commission

failed to adopt what Pure Waters sees as the better alternative

to the Linden Park basin project—one which, the plaintiff

insists, would have no adverse effects on water quality

because it would eliminate entirely the discharge of sewage,

treated and untreated, into the Rouge River. Under this plan,

the city would be required to abandon its combined sewer-

storm water system and to build a new, separated system,

based on one of three designs: (1) construction of storm

sewers with utilization of existing sanitary sewers, (2)

construction of new sanitary sewers with footing drain

removal, or (3) construction of Sanitary sewers without the

footings. The cost of these alternative systems was estimated

at amounts up to the twice the cost of the basin project, which

was pegged at approximately $30 million. Although Pure

Waters’ actual preference, the third option, would cost only

50 percent more than the basin project (some $45 million), it

would require two to three years of construction during which

80 percent of the city’s streets would be torn up, the securing

of a great many easements to permit the necessary

encroachment of construction on private property, the loss

of hundreds of trees along the right-of-way, and the

construction of a basin almost as large as the one currently

under construction.* Because of the additional cost and other

negative effects that constructing a new sewer system would

entail, this alternative was rejected by city officials in favor

of the retention basin plan.

In a thorough and well-reasoned opinion, the district

judge refused to enjoin construction of the basin on the basis

of federal law. The court found the public interest in the basin

to be substantial, given the public health risk caused by the

level of raw sewage pollution then being discharged into the

Rouge River; the possible waste of the $1.5 million already

spent on basin construction at the time of the hearing on the

motion to enjoin; the extensive citizen participation in the

basin decision; and the considerable research and planning

3 The plaintiff’s alternative of choice would require a basin capacity

of 4.5 million gallons, as compared to the 5.5 million gallon basin

currently under construction. The plaintiff does point out on appeal

that a tunnel already constructed would hold the necessary 4.5 million

gallon overflow that its alternative would require. Even so, the cost

of the proposed alternative would not be reduced because of the

tunnel’s existence.

eee ee és

a eee ee eee Se a m

effort undertaken in designing the project, the strength of the

environmental assessment, and the existence of the FONSI—

the “finding of no significant impact.” The court concluded

that the defendants had not violated NEPA because their

environmental assessment met the requirements of 42 U.S.C.

§ 4332(c), they had held public hearings, and they had issued

a FONSL

NEPA requires every federal agency to “include in

every recommendation or report on proposals for legislation

quality of the human environment, a detailed statement by

the responsible official on ...the environmental impact of the

proposed action.” 42 U.S.C. § 4332(2)(c)(1). Agencies first

prepare an “environmental assessment” in order to determine

whether the project’s effect on the environment will be

significant enough to warrant a more detailed “environmental

impact statement.” 40 CFR. § 1501.4(b)-(c)(1995). If the

agency decides that an environmental impact statement is

necessary, then it must prepare a “finding if no significant

impact.” 40 CER. § 1501.4(e). Courts will overturn an

agency decision not to issue an environmental impact

statement only if it is found to be arbitrary, capricious, or an

abuse of discretion. Crounse Corp. v. I.C.C., 781 F.2d 1176,

1193 (6th Cir.), cert. denied, 479 U.S. 890 (1986). Hence,

NEPA is simply an “action-forcing” provision designed to

ensure that agencies consider the environmental impact of

their decisions. Kleppe v. Sierra Club, 427 U.S. 390, 409

(1976). It requires a court to ensure than an agency has taken

a “hard look” at the environmental affects of a planned

project, but does not permit it to substitute its own judgment

about the consequences of the agency’s plan. Id. at 409-10

n.21.

We have recently decided a case similarly involving

a challenge to an agency’s decision not to issue an

environmental impact statement. See Friends of Fiery Gizzard

v. Farmers Home Admin., 61 F.3d 501 (6th Cir. 1995). In

that case, we held that if a project’s only significant impacts

are beneficial, then an environmental impact statement is

unnecessary. Id. at 505. When reviewed under this standard,

the district court’s opinion here makes out a compelling case

supporting the decision not to require the filing of an

environmental impact statement prior to the issuance of a

permit for the Linden Park basin project. Certainly, we cannot

say that the finding of no significant impact was arbitrary or

capricious, or that it represents an abuse of discretion.

THE MEPA DECISION

Under Michigan’s environmental protection act,

M.CLL. §§ 691.1201 et seq., a court may grant relief “[wJhen

the plaintiff in the action has made a prima facie showing

that the conduct of the defendant has, or is likely to pollute,

impair or destroy the air, water, or other natural resources...”

M.CLL. § 691.1203(1). The first determination that must be

made in a MEPA case, therefore, is whether the plaintiff has

presented a prima facie case. In City of Portage v. Kalamazoo

County Road Comm’n, 355 N.W. 2d 913 (Mich. App. 1984),

the Michigan Court of Appeals explained that this inquiry is

twofold. First, the court must determine whether a natural

resource is involved, a simple inquiry. Second,

acknowledging that almost all activity adversely affects

natural resources to some degree, the court must ask “whether

the impact of the activity on the environment rises to the

level of impairment to justify the trial court’s injunction.”

Id. at 915. To make this second determination, “the court

‘Mags veatiialaidites

should evaluate the environmental situation prior to the

proposed action and compare it with the probable condition

of the particular environment afterwards.” Id. at 915-6.

Given this standard, the district court was eminently

correct in ruling that the Michigan statute would not be

violated in this case. Even though there may be some adverse

impact on the Rouge River after the retention basin is put

into operation, clearly the pollution situation will be better

than it was prior to the construction of the basin. Hence, the

district court’s decision that the plaintiff had failed to make

out a prima facie case and its subsequent denial of an

injunction under MEPA was fully justified by the record.

We adopt the findings and the rationale of the district

court’s opinion and AFFIRM the judgment entered by the

district court in the defendant’s favor.

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APPENDIX B

Civil Action No. 94-74869

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION

April 21, 1995, Decided

April 21, 1995, FILED

PURE WATERS INC., a not-for-profit corporation,

Plaintiff,

Vv.

MICHIGAN DEPARTMENT OF NATURAL

RESOURCES, Roland Harms, Director; Oakland County

Drain Commission, George W. Kuhn, Commissioner;

Chapter 20 Birmingham Combined Sewer Overflow Drain

Board, George W. Kuhn, Chairman; City of Birmingham,

Thomas M. Markus, City Manager,

Defendants.

OPINION AND ORDER DENYING PLAINTIFF’S

REQUEST FOR AN INJUNCTION

Feikens, District Judge.

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pry

L BACKGROUND

The City of Birmingham, Michigan (Birmingham),

the Oakland County Drain Commission and the Chapter 20

Birmingham Combined Sewer Overflow Drain Board are in

the process of constructing a large retention basin (RTB) in

Linden Park, a public park in Birmingham! It is the approval

of the Linden Park RTB by the regulatory agencies and

Birmingham that led to the filing of the complaint in this

action. Defendants argue that the RTB is necessary because

Birmingham has combined sewers that carry both storm water

and waste water. On “dry weather days”, when there is little

Or No precipitation or snow melt, sewage from Birmingham’s

combined sewers is transported to the Detroit Waste Water

Treatment Plant via the Evergreen-Farmington Sewage

Disposal Interceptor (Evergreen-Farmington Interceptor) and

treated at that site.* On “wet weather days”, days in which

the amount of water exceeds the Capacity of the

Evergreen-Farmington Interceptor, due to precipitation or

runoff, thirty-three overflow outfalls dump excess combined

sewer waste water into the Rouge River (River or Rouge).

Discharging this CSO into the Rouge without treatment

l 10% of the RTB is constructed. March 22, 1995, Injunction Hearing

Tr. at II-150. At final argument defendant Birmingham said that it

had already spent one million five hundred thousand dollars on the

project.

2 Birmingham’s combined sewers are tributaries to four individual

collection areas: the Birmingham CSO area; the Bloomfield CSO

area; the Acacia Park CSO area; and the Twelve Towns CSO District.

This Linden Park RTB only addresses CSO control for the

Birmingham CSO area.

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jeopardizes the health and welfare of the people in the

communities on the Rouge, because the CSO contains

elevated levels of disease causing organisms, human waste

material, solid waste particles, fertilizer and toxic industrial

waste. Simply preventing all discharge of CSO into the Rouge

on wet weather days is no solution, since that would force

the Evergreen-Farmington Interceptor to become congested

and basement flooding, toilet- s and other similar

problems would occur. Instead, it is necessary to limit the

amount of discharge of untreated CSO into the River as much

as possible, without allowing the Evergreen-Farmington

Interceptor to backup. The RTB will accomplish this task by

impounding the majority of the CSO and bleeding it back

into the Evergreen-Farmington Interceptor on dry weather

days. The remainder of the CSO will be treated and released

into the Rouge. The parameters of the RTB are discussed

further herein.

Defendant Michigan Department of Natural

Resources (MDNR) is involved in this case for two reasons.

First, under the mandate of the Clean Water Act (Act), 33

U.S.C. § 1251 et seq., and as the agent of the Environmental

Protection Agency (EPA), MDNR regulates the discharge of

CSO. In fulfilling this duty MDNR issues National Pollution

Discharge Elimination System (NPDES) permits. These

permits require communities to follow the strictures of the

Act as closely as possible, but recognize that complete and

instantaneous elimination of pollution is impossible and,

therefore, allow communities to discharge CSO into bodies

of water when necessary. Second, MDNR is responsible for

insuring that public and private entities follow federal and

State environmental guidelines. This responsibility includes

preparing Environmental Assessments (EA) and Findings of

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ae ateale: ss

No Significant Impact (FONSD after appraising proposed

construction that may affect the environment.

Plaintiff is a not-for-profit membership organization

composed primarily of citizens living in and around

Birmingham. Members of Pure Waters, Inc. include citizens

who live adjacent to Linden Park. Plaintiff’s complaint states

that the process leading to approval of the Linden Park RTB

and defendant MDNR’s EA and FONSI fail to meet the

requirements of the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4331 et seq., the Michigan

Environmental Protection Act (MEPA), Michigan Compiled

Laws §§ 691.1201 et seq., applicable state and federal water

quality standards under the Act, 33 U.S.C. § 1251 et seq..,

and defendants’ NPDES permit. In support of its request for

an injunction, plaintiff alleges that it will suffer irreparable

harm because defendants refused to evaluate water quality

compliance for discharge of partially treated CSO under the

Act and the NPDES permit, failed to observe chlorine

standards under NEPA and MEPA, and violated NEPA and

MEPA in refusing to assess groundwater problems at the

Linden Park site and the feasibility of sewer separation.

Defendants proffer the following counter-arguments:

(1) plaintiff cannot meet the preliminary injunction Standard;

(2) plaintiff cannot show a significant environmental impact

under NEPA; (3) plaintiff cannot establish a prima facie case

under MEPA; and (4) plaintiff’s action is barred by the

doctrine of laches.

On December 14, 1994, plaintiff moved for a

temporary restraining order (TRO) to halt the construction

of the RTB. At the hearing it became evident to me that

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plaintiff’s objections were not substantial. It appeared that

plaintiff’s aim was to prevent the building of the RTB and to

substitute therefor a system of separated sewers throughout

Birmingham. Plaintiff also argued that construction of the

RTB would increase pollution in the Rouge.

In an opinion dated December 23, 1994, I ruled that

defendants considered the sewer separation alternative and

rejected it for appropriate reasons and that plaintiff’s concerns

as to the discharge of water quality into the Rouge River

were without foundation. I offered plaintiff an opportunity

for a further hearing on its conjoined motion for a preliminary

injunction. Plaintiff declined this offer. Plaintiff then appealed

to the United States Court of Appeals for the Sixth Circuit

and requested that that court stay the denial of the TRO, enjoin

all activities pending appeal, and grant a TRO until I

conducted a hearing on a preliminary injunction. Plaintiff’s

appeal was denied on January 19, 1995.

Subsequent to this denial, plaintiff filed a motion for

a preliminary injunction.* On March 22, 1995, I heard

plaintiff’s motion. At a full evidentiary hearing plaintiff

advanced essentially the same arguments to support an

injunction that it offered to support a temporary restraining

order.

Prior to examining the issues now raised, it is

important that I again fully explain the process leading to

approval of the Linden Park RTB. On October 19, 1989, the

3 Although plaintiff’s motion is for a preliminary injunctiun, I will

treat it as a motion for a permanent injunction.

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Michigan Water Resources Commission issued NPDES

permits to the communities in the Rouge Watershed. The

permits applied to combined sewer overflow discharges. All

Rouge combined sewer overflow program requirements were

developed to reflect the goals of the Rouge River Remedial

Action Plan (Rouge R.A-P.), that goal being the elimination

of raw sewage discharges and protection of the public health

by the year 2005.4

The Rouge R.A-P. established three phases for CSO

control. The first phase was to operate, repair and maintain

the existing facilities to minimize the discharge or raw sewage

while planning was concluded for adequate control. Phase

two required that CSO’s be controlled to eliminate the

discharge of raw sewage, and protect the public health by

the year 2005.° Phase three requires that additional controls

be applied, if necessary, to comply with water quality

standards at times of discharge.

Thereafter, Detroit, Wayne and Oakland Counties filed

a petition before me, requesting that I take jurisdiction over

these permit questions. I ruled that I had pendent jurisdiction

over the “time and manner in which the parties deal with wet

weather flows governed by permit standards.” I appointed

Dr. Jonathan W. Bulkley of the University of Michigan as

Court Monitor, to attempt to negotiate a settlement of these

4 The Rouge R.A-P. was published by the Southeast Michigan

Council of Governments (SEMCOG) in 1988.

5 The Linden Park RTB will allow Birmingham to satisfy phase

two of the Rouge R.AP.

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issues. While administrative hearings proceeded before the

Water Resources Commission, Dr. Bulkley involved the

contesting parties and the regulatory agencies in negotiations,

which resulted in a settlement agreement dated June 28, 1991.

The document was informally called the “Bulkley

Settlement.” In accordance with this settlement, the permits

issued on October 19, 1989 were revised, and on August 20,

1992, these revised permits were reissued. If Birmingham

does not comply with the terms of the NPDES permits, it

will violate state and federal law and be subject to significant

penalties.

In 1992 defendants began to pursue federal grants

through the Rouge River National Wet Weather

Demonstration project, apply for State Revolving Loan Fund

low interest loans and gather proposals to build a system to

control CSO. On March 1, 1993, Hubbell, Roth & Clark,

Inc. Consulting Engineers (HR&C) submitted a draft proposal

recommending the Linden Park RTB.

In May of 1993 an Ad Hoc Citizens Committee

(Committee) appointed by the Birmingham City Commission

began hearings on the Linden Park RTB.° It is not disputed

that the Committee met over twenty times in the summer of

1993 to hear comments concerning the Linden Park proposal

and other suggestions for rectifying the CSO problem. On

July 22, 1993 the Committee heard testimony from

individuals who supported the proposal plaintiff now

supports. After reviewing the testimony, the Committee

° The committee consisted of seven citizens of Birmingham. Four of these

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considered the environmental and economic impact of all

the alternatives. The Committee then recommended the

Linden Park RTB plan submitted by HR&C to the

Birmingham City Commission. This public participation was

a major factor in approving the Linden Park RTB. Evidence

of this is the FONSI which states the following:

VIL PUBLIC PARTICIPATION

Public participation was the key issue in the

evaluation of alternatives and was a critical

element in the selection of the proposed

project. Numerous newspaper articles have

featured the project, along with the other CSO

control projects in this area. Newsletters were

mailed out and public meetings were held to

discuss and inform residents of the project. The

public hearing was held on March 29, 1993,

at the Birmingham City Commission Room.

A presentation was made of the project plan,

including the alternatives considered, the

environmental impacts anticipated, and the

estimated costs. Significant cpposition was

voiced at this hearing, including concerns over

the disruption of Linden Park, loss of property

values, destruction of trees along the routes of

the collecting sewers, and future requirements

for CSO controL In an effort to optimize social

acceytability and project implementability, the

Citizen’s (sic) Advisory Committee,

referenced earlier, was established. Following

the additional evaluation, described

previously, and solicitation of public input,

using the committee as a forum to resolve

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concerns, a resolution was passed by the city

commission approving and agreeing to

implement the modified Linden Park

alternative.

Michigan Department of Natural Resources, June 1, 1994,

Finding of No Significant Impact at p. 23.

On October 19, 1993 MDNR notified Birmingham

that the Linden Park plan satisfied the requirements of the

NPDES permits. Based on that approval, and the

recommendation of the Committee, the Birmingham City

Commission passed a resolution approving the Linden Park

plan.

MDNR continued to appraise the project to determine

its impact on the environment. In May of 1994 MDNR

completed its EA and shortly thereafter, on June 1, issued a

FONSI which stated:

IX. REASONS FOR CONCLUDING NO

SIGNIFICANT IMPACTS

The water quality benefits anticipated from

this project are expected to outweigh the

short-term adverse construction impacts. No

long-term significant adverse impacts are

Michigan Department of Natural Resources, June 1, 1994,

Finding of No Significant Impact at p. 23. Issuance of the

FONSI initiated a public notice and comment period which

ended July 1, 1994. A week later MDNR advised defendants

that the Linden Park plan met all environmental requirements

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and was approved based on the EA, FONSI and public

comments received during the comment period.

As is evident from the intense scrutiny the Linden

Park RTB received, several alternative plans were considered.

The two principal altematives were the Linden Park RTB,

which was approved, and a plan to separate the sewers,’ the

plan supported by plaintiff, which was rejected. A brief

description of the alternatives is necessary to illuminate the

contentions of the parties.

The Linden Park RTB is connected to the combined

sewers. Under this alternative eighty to eighty-five percent

of the CSO from heavy rainfall events will be retained in the

Linden Park RTB and bled back into the

Evergreen-Farmington Interceptor on dry weather days. On

exceptionally heavy wet weather days, known as one year/

one hour storms,® CSO will be released into the Rouge. This

7 The term “separated sewers” refers to a sewage system which uses

one set of sewers to carry storm water run-off and another set to

8 This means that one inch of rain will accummlate uniformly across

the drainage area during one hour. See Birmingham CSO Area Project

Plan, p. I-4.

° A total of nine and a half-million gallons can be stored in the

system. The RTB has a capacity of five and a half-million gallons

and an eleven foot tunnel that runs from Linden Park to Booth Park

has a capacity of four million gallons. See March 22, 1995, Injunction

Hearing Tr. at II-175.

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Of ditentinn ‘atten ——— ee

Prior to discharge. When weighing the benefits of the system

mentioned above, defendants also considered several

additional factors, including, the amount of energy and

chemical consumption, manpower needs, the discharge of

which the parties agree is $29,861,000.

Under the second alternative, all combined sewers in

the Birmingham area would be separated. This would be

accomplished by constructing new storm sewers to serve all

existing storm water sources or constructing new sanitary

sewers. In either case, approximately 200,000 feet of new

sewer are required. This approach would eliminate all

discharge of human and industrial waste into the Rouge.

Untreated, contaminated storm-water runoff would flow

directly into the Rouge, however.

Several problems are present in the plan to separate

sewers. Construction would be required for two to three years

in approximately eighty percent of Birmingham’s streets.

Many streets would be closed during construction and trees

that have grown near sewage lines would be removed. In

addition, records of sewage and utility upgrades in

Birmingham are poor, and construction would have to be

delayed to determine where the sewage system runs and how

to avoid utility lines. Sewer separation also requires

excavation and construction on private property, which is

significant because of the large number of easements that

defendants would need to acquire.

The cost for this alternative varies according to the

precise dimensions of the plan. If the plan called for new

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es |

storm sewers, the cost would be $48,415,000. If new sanitary

sewers were connected to each household, with footing drain

removal, the cost reaches $ 64.5 million dollars. If new

Plaintiff requests an injunction to halt construction

of the Linden Park RTB. A federal court will issue an

injunction when a party can show irreparable harm and

inadequacy of legal remedies. Weinberger v. Romero-Barcelo,

456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982).

Prior to the grant of an injunction, “a court must balance the

interests of the parties and give particular attention to the

public consequences of a decree.” Charter TP. of Huron, Mich.

v. Richards, 997 F.2d 1168, 1175 (6th Cir. 1993). “[A]

substantial threat of impending injury is necessary to justify

the imposition of an injunction.” Chem-Trend Inc. y.

McCarthy, 780 F. Supp. 458, 460 (E.D. Mich.

1991). As these cases illustrate, before issuing an injunction

in this case I must decide that the likelihood of plaintiff

sustaining irreparable harm is so great that it outweighs the

public interest.

The public’s interest in this case is substantial. First,

due to the nature of this problem the public health is at risk if

the one million five hundred thousand dollars defendants have

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already spent on the Linden Park project. Third, the Linden

Park plan was approved by Birmingham only after citizens

participated in the process by attending City Commission

and Committee hearings on the subject. Fourth, time and

money were spent researching, litigating and documenting

the objectives and problems discussed in the EA, FONSI and

the voluminous CSO project plan. Deference to the public

interest demands that this court examine carefully any claim

that will waste the public’s time and money and that may

place the health of citizens in jeopardy.

Plaintiff argues that it is irreparably harmed by

construction of the Linden Park RTB because NEPA and

MEPA were not followed during the approval stages. If these

Statutes were violated, such harm may outweigh the public’s

interest. An examination of the facts reveals the vacuity of

plaintiff’s argument, however.

B. NEPA

| NEPA directs agencies to examine the environmental

consequences of proposed projects and to provide statements

which explain:

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the

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UAE A RaNele en the ta

AD CN A Wa creche) a oe Res

maintenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable

commitments of resources which would be

involved in the proposed action should it be

implemented.

Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 348, 104 L. Ed. 2d 351, 109 S. Ct. 1835 (1989); 42

U.S.C. @ 4332(C).

“NEPA itself does not mandate particular

results, but simply prescribes the necessary

process. If the adverse environmental effects

of the proposed action are adequately

identified and evaluated, the agency is not

constrained by NEPA from deciding that other

values outweigh the environmental costs.”

Methow Valley Citizens Council, 490 U.S. at 350 (citations

omitted). An agency must determine whether an

environmental impact statement is necessary after preparing

an EA and issue a FONSI if the agency decides not to prepare

an environmental impact statement. 40 CER § 1501.4(c),

(e).

In this case defendant MDNR prepared an EA which

met all the requirements listed in 42 U.S.C. 4332(C). After a

public comment period MDNR issued a FONSL These two

actions satisfy NEPA. 40 CER § 1501.4(c), (e). Plaintiff

wants to quarrel with the findings in the documents by

pointing to the amount of chlorine that will be released into

the Rouge, possible groundwater problems, resulting water

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quality and the feasibility of sewer separation. While

defendants’ conclusions are not to plaintiff’s liking, it is clear

from the voluminous materials filed with this Court, that

defendant MDNR, with the assistance of the other defendants

and the citizens of Birmingham, did consider potential

problems associated with the Linden Park RTB plan and

possible alternatives. See March 22, 1995, Injunction

Hearing, Tr. at Il-108; EA p. 6-9; Birmingham CSO Area

Project Plan §§ II-VI; Minutes, Ad Hoc Citizens Advisory

Committee Meetings, May 12, 1993, July 8, 1993, July 22,

1993. Defendant MDNR and the other parties simply

concluded that any possible negatives associated with the

proposal were greatly outweighed by the positive attributes

of the Linden Park RTB. This is acceptable under NEPA.

Methow Valley Citizens Council, 490 U.S. at 350. Thus,

defendants’ actions satisfy the requirements of NEPA in form

and in substance.

C. MEPA

Plaintiff’s MEPA claim is also without merit. MEPA

“imposes a duty on individuals and organizations . . . to

prevent or minimize degradation of the environment which

is caused or is likely to be caused by their activities.” Ray v.

Mason County Drain Comm’r, 393 Mich. 294, 306, 224

N.W.2d 883 (1975). Under MEPA, the trial court must

conduct a dual inquiry to determine whether plaintiff can

establish a prima facie case: (1) whether a natural resource is

involved; and (2) whether the impact of the activity on the

environment rises to the level of impairment. Kent Rd. Comm.

v. Hunting, 170 Mich. App. 222, 233, 428 N.W.2d 353 (1988).

“In answering the latter question, the trial court should

evaluate the environmental situation before the proposed

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action and compare it with the probable condition after [the

action is implemented].” Id. at 233. The word “impair”, in

this context, means “to weaken, to make worse, to lessen in

power, diminish, or relax or otherwise affect in an injurious

manner.” Michigan United Conservations Clubs v. Anthony,

90 Mich. App. 99, 105, 280 N.W.2d 883 (1979) (emphasis

omitted).

Construction of the Linden Park RTB will improve

the quality of water in the Rouge dramatically. The RTB will

reduce the number of CSO events from forty to sixty times

per year to approximately six to nine per year. Currently two

hundred twenty million gallons per year of combined sewage

are dumped into the Rouge; the RTB will reduce this figure

to about forty-three million gallons per year. Thus, when the

RTB is complete, eighty percent of overflow volumes will

be captured. The small amount of CSO that is not captured

will be treated prior to being dumped into the Rouge.

Therefore, the Rouge will be significantly cleaner after the

RTB is constructed than it is now.

Despite this fact, plaintiff contends that the RTB will

impair the environment. Therefore, an examination of those

factors which plaintiff deems adverse effects is necessary.

Kent Rd. Comm., 170 Mich. App. at 233. The primary adverse

impact, according to plaintiff, is the discharge of

approximately eight

hundred sixty gallons of sodium hypochlorite into the Rouge

per year. It is undisputed, however, that defendants considered

this factor and arranged for testing to assure that the chlorine

the RTB so that it can accommodate dechlorination

equipment. Another effect of the RTB is short-term damage

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to Linden Park. This damage is limited to the construction

period and will not be noticeable after landscaping. For

example, although two hundred trees must be removed during

construction, landscaping plans call for the planting of four

hundred trees and two hundred bushes. When comparing the

minimal “adverse” effects of the RTB to its beneficial impact,

it is obvious that plaintiff’s reasoning turns MEPA on its

head.!° In short, there is no evidence that the Linden Park

can be made that MEPA is preempted by federal laws which regulate

water pollution.

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SOIT RY eee As te Fin ts

RTB will “impair” the environment. Therefore, plaintiff

cannot establish a prima facie case under MEPA.!!

11 At the hearing Plaintiff spent a considerable amount of time

attempting to show that sewer separation was a more feasible and

prudent alternative than the Linden Park RTB because of an artesian

aquifer at the site. Due to the fact that Plaintiff cannot establish a

prima facie case under MEPA, it is unnecessary for defendants to

explain why sewer separation is not a feasible and prudent alternative.

Ray, 393 Mich. at 312. This said, I will briefly discuss plaintiff’s

claim to show that defendants did consider the effect of the artesian

aquifer on the RTB.

According to Plaintiff the small artesian aquifer might be connected

to a much larger artesian aquifer. If this is true, and the larger aquifer

is punctured by construction, the water pressure in the well may cause

the soil surrounding the basin to collapse and water would rush into

the area surrounding the RTB. This effect, called a “blow-out”

condition, would mean that the RTB would eventually “float” in water.

Plaintiff believes this is important because sech a scenario would

drastically increase the cost of the RTB and thus, make sewer

separation a more economically viable alternative than the RTB.

Uncontroverted testimony shows that plaintiff’s “doomsday”

scenario is unlikely to occur. Four test boring holes were dug at the

Linden Park site to test soil composition. One of these boring holes

is an Observation well which monitors water pressure. At this time

“de-watering” is taking place in that well at the pace of ten gallons a

munute. This fact leads defendants, and this court, to believe that

there is little chance of a blow-out occurring at the site. See March

22, 1995, Invunction Hearing Tr. at II-123. Despite this conclusion,

defendants have taken the precautionary measure of providing an

even larger on-site de-watering system which will pump up to 200

gallons per minute. See March 22, 1995, Injunction Hearing, Tr. at

I-73 and i]-119. Thus, plaintiff’s contention is without merit.

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D. Public Interest

Due to the fact that building the Linden Park RTB

does not violate NEPA or MEPA, plaintiff’s claim of

irreparable harm is without merit. Therefore, the public

interest in allowing construction of the Linden Park RTB

easily outweighs the alleged harm plaintiff will suffer if an

injunction is not issued.

For this reason I refuse to issue an injunction in this case.

E. Laches

Due to the disposition of the injunction in this manner,

discussion of defendants’ laches defense is unnecessary.

IV. CONCLUSION

Accordingly, plaintiff’s motion for an injunction is

DENIED and construction of the Linden Park Retention

Basin will proceed as scheduled. IT IS SO ORDERED.

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APPENDIX C

THE MICHIGAN ENVIRONMENTAL

PROTECTION ACT

THOMAS J. ANDERSON, GORDON ROCKWELL

ENVIRONMENTAL PROTECTION ACT OF 1970

691.1201. Short Title

Sec. 1. This act, shall be known and may be cited as

the “Thomas J. Anderson, Gordon Rockwell environmental

protection act of 1970.”

691.1202. Actions for declaratory and equitable relief;

parties; standards for pollution or anti-

pollution devices or procedure.

Sec. 2. (1) The attorney general, any political

subdivision of the state, any instrumentality or agency of the

state or of a political subdivision thereof, any person,

partnership, corporation, association, organization or other

legal entity may maintain an action in the circuit court having

jurisdiction where the alleged violation occurred or is likely

to occur for declaratory and equitable relief against the state,

any political subdivision thereof, any instrumentality or

agency of the state or of a political subdivision thereof, any

person, partnership, corporation, association, organization or

other legal entity for the protection of the air, water and other

natural resources and the public trust therein from pollution,

impairment or destruction.

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(2) In granting relief provided by subsection (1) where

is involved a standard for pollution or for an anti-pollution

device or procedure, fixed by rule or otherwise, by an

instrumentality or agency of the state or a political subdivision

thereof, the court may:

(a) Determine the validity, applicability and

reasonableness of the standard.

(b) When a court finds a standard to be deficient,

direct the adoption of a standard approved and specified by

the court.

691.1202a. Surety bonds or cash, posting to secure costs

or judgments.

Sec. 2a. If the court has reasonable ground to doubt

the solvency of the plaintiff or the plaintiff’s ability to pay

any cost or judgment which might be rendered against him

in an action brought under this act the court may order the

plaintiff to post a surety bond or cash not to exceed $500.00.

691.1203. Prima facie showing of pollution, rebuttal;

affirmative defenses; burden of proof; weight

of evidence; masters or _ referees;

apportionment of costs.

Sec. 3. (1) When the plaintiff in the action has made

a prima facie showing that the conduct of the defendant has,

or is likely to pollute, impair or destroy the air, water or other

natural resources or the public trust therein, the defendant

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may rebut the prima facie showing by the submission of

evidence to the contrary. The defendant may also show, by

way of an affirmative defense, that there is no feasible and

prudent alternative to defendant’s conduct and that such

conduct is consistent with the promotion of the public health,

safety and welfare in light of the state’s paramount concem

for the protection of its natural resources from pollution,

impairment or destruction. Except as to the affirmative

defense, the principles of burden of proof and weight of the

evidence generally applicable in civil actions in the circuit

courts shall apply to actions brought under this act.

(2) The court may appoint a master or referee, who

shall be a disinterested person and technically qualified, to

take testimony and make a record of his findings to the court

in the action.

(3) Costs may be apportioned to the parties if the

interests of justice require.

691.1204. Granting equitable relief; imposition of

conditions; remitting parties to other

proceedings; judicial review.

Sec. 4. (1) The court may grant temporary and

permanent equitable relief, or may impose conditions on the

defendant that are required to protect the air, water and other

natural resources or the public trust therein from pollution,

eS ait ;

(2) If administrative, licensing or other proceedings

are required or available to determine the legality of the

A32

defendant’s conduct, the court may remit the parties to such

proceedings, which proceedings shall be conducted in

accordance with and subject to the provisions of Act No.

306 of the Public Acts of 1969, heing sections 24.201 to

24.313 of the Complied Laws of 1948. In so remitting the

court may grant temporary equitable relief where necessary

for the protection of air, water and other natural resources or

the public trust therein from pollution, impairment or

destruction. In so remitting the court shall retain jurisdiction

of the action pending completion thereof for the purpose of

determining whether adequate protection from pollution,

impairment or destruction has been afforded.

(3) Upon completion of such proceedings, the court

shall adjudicate the impact of the defendant’s conduct on the

air, water or other natural resources and on the public trust

therein in accordance with this act. In such adjudication the

court may order that additional evidence be taken to the extent

necessary to protect the rights recognized in this act.

(4) Where, as to any administrative, licensing or other

proceeding, judicial review thereof is available,

notwithstanding the provisions to the contrary of Act No.

306 of the Public Acts of 1969, pertaining to judicial review,

the court originally taking jurisdiction shall maintain

jurisdiction for purposes of judicial review.

691.1205. Intervention; determination as to pollution;

collateral estoppel; res judicata.

Sec. 5. (1) Whenever administrative, licensing or

other proceedings, and judicial review thereof are available

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by law, the agency or the court may permit the attorney

general, any political subdivision of the state, and

instrumentality or agency of the state or of a political

subdivision thereof, any person, partnership, corporation,

association, organization or other legal entity to intervene as

a party on the filing of a pleading asserting that the proceeding

or action for judicial review involves conduct which has, or

which is likely to have, the effect of polluting, impairing or

destroying the air, water or other natural resources or the

public trust therein.

(2) In any such administrative, licensing or other

proceedings, and in any judicial review thereof, any alleged

pollution, impairment or destruction of the air, water or other

natural resources or the public trust therein, shall be

determined, and no conduct shall be authorized or approved

which does, or is likely to have such effect so long as there is

a feasible and prudent alternative consistent with the

reasonable requirements of the public health, safety and

welfare.

(3) The doctrines of collateral estoppel and res

judicata may be applied by the court to prevent multiplicity

of suits.

691.1206. Act supplementary.

Sec. 6. This act shall be supplementary to existing

administrative and regulatory procedures provided by law.

691.1207. Effective Date.

Sec. 7. This act shall take effect October 1, 1970.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.