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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 864

## 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,
v.
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

1

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.

I.

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

POSSESS SSSESSSSEEOES ESS ESSE ESOSESEEEESSEEESESOS

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CONCLUSION

APPENDICES

A.

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

rs

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

3
g
3

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

&
2
|

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.

3

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.

4

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

5

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).

8

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

9

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

10

EUAN AA (2 lies Dead wah WALLA eee a

Sey iorg,

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

11

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.

12

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

13

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

14
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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.

15

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

16

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

© The statements of the trial court, supra, are self-evident. The
Sixth Circuit opinion acknowledges later, third stage construction of
additional controls, if necessary, to comply with water quality
standards. App. A.

17

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

18

sith Ain Wl aed Slade iaiole De whl 8s

a ARRAY weir ee aire pec

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).

19

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

eat ee ae Ree Eee

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

21

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.

22

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

23

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

24

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

25

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
26

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.

27

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

28

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

29

No.

SUPREME COURT ne UNITED STATES
October Term, 1995
PURE WATERS, INC.
Petitioner,
v.
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

Al

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.

A2

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
Ad

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.

A5

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

A6

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.

A7

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.

Ag

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

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‘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.

All

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

A22

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

A24

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

A25

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

A26

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

© In view of this finding the court notes nonetheless that a contention
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

A31

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
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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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An

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1126%3A1. Public record. Not legal advice.