The MEPA Turns 50

Jim Olson is FLOW’s Founder, President, and Legal Advisor

Photo: Kolke Creek in the headwaters of the AuSable River was protected by MEPA after the Michigan Supreme Court prohibited discharge of 1 million gallons of oil-field treated wastewater.

Editor’s note: This is part 1 of a series on the history of import of the MEPA.

By Jim Olson

Serendipity can mean chance, destiny, and providence. But serendipity means nothing without the commitment of people, often ordinary people whose hearts were moved to act with complete trust that what they were doing was the right thing.

Such was the case when a group of civic-minded citizens and organizations in April 1969 took a first-of-its-kind, draft environmental law to the political leaders and powerbrokers of Michigan. Their sustained effort resulted, 50 years ago on July 27, 1970, in Governor William Milliken, surrounded by members of the legislature from both sides of the aisle, signing into law the world’s first environmental citizen suit law. The Michigan Environmental Protection Act of 1970, the MEPA, created the legal right of citizens to bring suits in court to protect the environment in which they live. But the cordial, nonpartisan ceremony doesn’t tell the real story.

The 1960s were tumultuous times. It wasn’t just the civil rights movement and the Vietnam War. The jolting assassinations of Martin Luther King Jr., President John Kennedy, and his brother Robert Kennedy shattered the illusion that citizens could simply trust the government as if it was a benevolent parent to protect them. By the late 1960s, people realized that they must care, march, speak out, and participate in government decision-making, to expect government to listen, and to do something if government didn’t.

Rachel Carson’s Silent Spring exposed the poisoning of the environment, the food we eat, and water we drink, from unbridled use of pesticides like DDT. Smog choked our cities, rivers caught on fire, an oil well ruptured off the coast of Santa Barbara. Scientists declared Lake Erie “dead.” In 1965, a federal appeals court recognized that citizens’ with “special recreational and conservational” interests had legal “standing” to petition a court to overturn a permit for a 2,200 mega-watt pump-storage power plant on the Hudson River. Then came the first Earth Day in 1970, an event that largely started on the campus of the University of Michigan and grew into a national and world-wide movement.

Birth of the MEPA in Grand Rapids and Ann Arbor

So, how did the MEPA come about? What would the proposed law created by a young law professor at the University of Michigan Law School do? How could an environmental law address the scientific complexities of pollution in just two or three pages, when the sweeping regulatory environmental permit standards in the Clean Air Act of 1970 ran 147 pages? [42 U.S.C., Sections 7401-7671]

Joan Wolfe

In 1968, a group of citizens living in Grand Rapids formed the West Michigan Environmental Council—WMEAC—the state’s first broad-based organization of citizens and civic organizations to take action to protect West Michigan’s environment. [Joan Wolfe, A “History of the Michigan Environmental Protection Act” (author’s personal account, circa 1972)] Not long after, led by its founder Joan Wolfe with the help of her husband Will and Grand Rapids lawyers Peter Steketee and Hillary Snell, the group filed a suit in federal district court to stop the use of DDT by the U.S. Department of Agriculture. The court, however, threw out the suit because the federal law did not grant them a right to sue to contest the agency’s use of pesticides. All they could do was write letters to persuade the government not to do it.

Professor Joe Sax (1936-2014)

Undeterred, Wolfe and WMEAC contacted a law professor Joe Sax, who had recently joined the faculty at the U of M Law School, to see if a law could be written to fix the lack of the legal right to sue to prevent the degradation of the state’s air, water, and natural resources. By early 1969, Sax drafted a proposed law, which five years later after Michigan’s Supreme Court upheld its constitutionality, he would call an “Environmental Bill of Rights.”[“Michigan Upholds and Ecology Law that Let’s Citizens Halt Harmful Projects,” The New York Times, Archives, Jan. 26, 1975.] The model law stated that “any person could bring an action in court to protect the air, water, and natural resources or the public trust therein” from “likely pollution, impairment, or destruction.”

The model law stated that “any person could bring an action in court to protect the air, water, and natural resources or the public trust therein” from “likely pollution, impairment, or destruction.”

WMEAC convened a vast coalition of community and business leaders, conservation leaders, law students, journalists, and many civic organizations—UAW, AFL-CIO, Michigan United Conservation Clubs, League of Women Voters, National Audubon, the Black Unity Council, the PTA—and showed the draft law to a long-time sportsman, an articulate and highly respected member of the state House of Representatives, Tom Anderson. [Dave Dempsey, Ruin and Recovery: Michigan’s Rise as a Conservation Leader, Chpt. 11, pp. 162-177 (University of Michigan Press, 2004); “Give Earth a Chance,” note 1, supra.] Known as the “gentle giant” because of his reflective manner and his 6-foot, 6-inch frame, [“Thomas Jefferson Anderson-Environmentalist,” Meandering Michigan History] Anderson and his natural resources committee met with Sax, and commenced artful discussions with representatives from both political parties. [Id., Dave Dempsey, at p. 176-177] On April 1, 1969, buoyed by the surging support of so many individuals and organizations, Anderson and sponsor Warren Goemaere introduced the “Sax” bill as House Bill 3055.

The bill’s central feature, a citizen suit to remove complex obstacles of administrative law, [James Olson, Michigan Environmental Law, Chpt. 9, p. 185 (Neahtawanta Press, 1981)] posed a dramatic change at the time. The model law aimed at the “disillusionment” that administrative agencies were “too closely associated with the interests of industry.” [The Michigan Environmental Protection Act of 1970, 4 U. Mich. J.L. Reform, 121 (1970-1971)] As later described by the state’s highest court, “Not every public agency proved to be diligent and dedicated defenders of the environment. The [MEPA] has provided a sizable share of the initiative for environmental law enforcement for that segment of society most directly affected—the public.” [Ray v Mason County Drain Comm’r, 393 Mich 294, 305 (1975)]

In Lansing, Havoc in the House Hearings

The tide of euphoria surrounding H.B. 3055 soon ebbed. Not to be overtaken by a law that would destroy decades of close ties with their regulators, industry and commercial interests mobilized. Industry claimed citizens would file lawsuits that would harass lawful enterprise and stop progress in its tracks; Ford Motor remained concerned that it would make business difficult. [Joan Wolfe, note 3, supra, p. 5] Attorney General Frank Kelley, Governor Milliken’s legal advisor, and the Department of Natural Resources, even Governor Milliken himself, were skeptical at best. At first, the Michigan Chamber of Commerce at first remained circumspect. During the winter and spring of 1970, Anderson’s committee and Senator Gordon Rockwell’s environment committee scheduled hearings. The Wolfe coalition of civic organizations and individuals from all over the state took on a life of its own. Hundreds of citizens packed the committee rooms.

The Chamber was joined by manufacturing and agricultural interests, and struck with full force. The Chamber coalition offered amendments to sink the bill—a provision that would limit suits to “unreasonable” pollution and impairment. [James Olson, note 9, supra, pp. 192-193. In drafting the original bill, Joe Sax was not doubtful of the foresight in Art. 4, Sec. 52 of the 1963 Constitution that mandated the legislature (“shall”) to protect the air, water, and natural resources of the state from pollution, impairment, or destruction, without a qualifying adjective like “unreasonable.”] Another provision would remove the word “public trust,” weakening the duty of the state to protect its lakes, streams, and valuable public lands.

Debate and citizen outcry at times rose to near maelstroms. But Governor Milliken and other leaders took charge, adamantly supporting the original bill. Frank Kelley withdrew his initial skepticism, and Director Ralph MacMullan and the DNR became strong proponents. When the committee passed and sent H.B. 3055 to the House floor for a vote, more heated debate ensued. On April 21, 1970, the House struck “unreasonable” and the other damaging amendments, and the bill passed almost in its original form. [Dempsey, note 6, supra, p. 174-175; Olson, note 9, supra] Now it was the Senate’s turn.

Emerging Ultimately Unscathed in the Senate

The plight of H.B. 3055 was no less dramatic in the Senate. Tom Washington, the powerful, brash head of Michigan United Conservation Clubs, warned the Senate could be the bill’s downfall. [Wolfe, note 3, supra] The Chamber renewed its demand to weaken the MEPA by reinserting the word “unreasonable” in front of pollution. Farm Bureau called for a penalty of twice the costs and attorney fees if citizens lost their lawsuit; the Manufacturers introduced a change that would remove the feasible and prudent alternative test. [Id.; Wolfe, note 3, supra] Senator Rockwell, the chair of the Senate Environment Committee, a critical Republican ally to the bill’s passage, called for patience. After a newspaper editorial chastised him for not scheduling a hearing, he scheduled a hearing on one week’s notice. Wolfe, WMEAC, UAW, Rep. Anderson, Sax, students from Michigan’s Environmental Law Society, and hundreds of others shifted into high gear and packed the hearing to block the renewed efforts to cripple the bill. Governor Milliken continued to speak up and urge passage of the bill. Weeks passed, and there was silence, so Wolfe once more rallied the troops of citizens, organizations, and leaders, calling on senators to take up the bill or suffer the consequences in their primary election. On the last day before recess, the Senate took up the bill, and it passed unscathed.

Key Provisions of the MEPA

The MEPA is terse compared to other laws. [Act 451, Public Acts of 1994, Part 17, Natural Resources and Environmental Protection Act, MCL 324.1701-1706] The opening section simply states that “any person may maintain an action” in court “for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” [Section 1701(1), MCL 324.1701(1)] The dramatic contrast between the MEPA and long, complex regulations that govern the approval of permits proves the difference. Unlike laws and permitting regulations managed by agencies tasked with narrow, specific technical standards to limit toxic and hazardous substances, harmful discharges, and control or manage toxic wastes, the MEPA took a different tack.

Not only does it grant citizens the right to bring a civil lawsuit, the MEPA charges courts with the responsibility to find the facts and rule in each case whether there is likely pollution based on the underlying factual proofs and science in open court and subject to the truth-searching light of cross examination. [Section 1703(1), MCL 324.1703(1)] In short, the MEPA levels the playing field. All persons or parties to a dispute share equal access and responsibility for addressing or disputing the alleged harm. If a citizen (plaintiff) who files a suit establishes that conduct “has or is likely to pollute, impair, or destroy” the environment, the conduct is prohibited unless the defendant proves that here is “no feasible and prudent alternative” and the conduct is consistent with health, safety, and welfare and an overarching concern for the natural resources or public trust involved. In addition to citizen suits, persons may intervene in an agency permit proceeding and participate as a party to oppose or present evidence that shows the applicant’s proposed conduct or development is likely to cause harm the environment. And, if the harm is shown to likely occur, the agency cannot approve the permit unless it can determine that the applicant has no alternative consistent with the state’s paramount concern for its natural resources. [Section 1705, MCL 324.1705]

In short, the MEPA levels the playing field. All persons or parties to a dispute share equal access and responsibility for addressing or disputing the alleged harm.

But the MEPA does more. It authorized the courts in day-to-day decisions in the cases before them to develop, collectively, what has been called “the common law of the environment.” Each case becomes another benchmark to guide persons, industry, developers, businesses, and governments in deciding what is and what is not permissible conduct affecting the environment. While the MEPA does not cover every minor human action, those actions that exceed the threshold of “likely pollution, impairment, or destruction” do violate the law. This standard has become the lifeblood of Michigan’s environmental principles and ethos. If a court finds the threshold has been violated, the conduct is prohibited unless a defendant proves there is no feasible and prudent alternative that is consistent with the state’s paramount concern to protect its natural resources.

A Message from Joan Wolfe on the MEPA’s Key Lesson

The MEPA was born out of a deep mutual desire by often competing stakeholders to do the right thing. Today, all of us in Michigan should take time to reflect on the lessons learned, the injustices prevented or eliminated, and the principles that have evolved into our common law and ethos to protect the environment. As Joan Wolfe, the mother of MEPA, has wisely passed on to all of us, present and future generations:

“Two ingredients may not be obvious. One is the importance of a coalition agreeing on one priority at a time, and the other is to persist — persist until the ink is dry.

But the lesson I want most to emphasize is the need for the leader/coordinator to reach out and actively encourage a diverse spectrum of individuals and groups to adopt the issue as their own and take some initiative, so that information and work are shared and grow at an exponential pace, and imaginative ideas and help that can make a pivotal difference are more likely to happen.

Think of the woman who went to Lansing just to help swell the crowd, and ended up persuading Peter Kok to vote for a crucial amendment that passed by ONE vote. Think of the creative idea and initiative by two Earth Day leaders that, when publicized at a pivotal point, defused a powerful report from the Attorney General’s office. Think of the parts so many individuals played.

In summary, I go back to the quotes that preceded this account: To me the greatest lesson is: “None of us is as smart as all of us,” and “Nothing we do can be accomplished alone.”[Joan Wolfe, note 3, supra]

This lesson is as true today as it was in 1970. In 2020, we are empowered, and we hold the present right and responsibility to solve the continuing systemic, devastating effects to our air, water, and natural resources in the 21st century. At any time, we have the choice to rise above our political or ideological differences and unite through relentless, tireless, day-to-day work and forward-looking vision to face the complexities and uncertainties in our lives and those of our children and grandchildren.

“But the lesson I want most to emphasize is the need for the leader/coordinator to reach out and actively encourage a diverse spectrum of individuals and groups to adopt the issue as their own and take some initiative, so that information and work are shared and grow at an exponential pace, and imaginative ideas and help that can make a pivotal difference are more likely to happen.” — Joan Wolfe

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Editor’s note: Still to come is Part 2 of the series – The MEPA’s Growing Pains

To celebrate the 50th anniversary of the MEPA, the next installment of this series will look at the challenges and growing pains of a new law that has matured into a pillar of Michigan’s and the nation’s environmental laws. Five more states passed their own citizen suit laws patterned after the MEPA, and Congress incorporated citizen suit provisions in the Clean Air Act and the Clean Water Act.

Within three years after MEPA took effect, as many as 50 citizen suits had been filed across the country, 33 of them in Michigan, and 26 succeeded [Joseph Sax and Roger Connor, Michigan’s Environmental Protection Act: Progress Report, 70 Mich L. Rev 1003 (1972); Joseph Sax and Joseph DiMento, Environmental Citizen Suits: Three Years’ Experience under the Michigan Environmental Protection Act, (Env. L. Quarterly, 1974)] in the six states that had enacted citizen suit laws. Since then, citizen suit provisions have been included in numerous federal laws, and formed the legal framework for state consumer protection laws.

The broad-based provision that authorized courts to prohibit conduct that would pollute the air, water, and natural resources, and the incorporation of the public trust doctrine to protect those resources, would come to influence environmental law and policy around the world. It is not without significance that, in 2007, the MEPA and its author Professor Joe Sax won the Blue Planet Prize, the Nobel prize for the environment.