August 01, 2024
Lansing, MI – Yesterday, Michigan’s Supreme Court handed down a decision confirming that Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) has robust authority to issue environmental permits that will protect Michigan’s waters from pollution.
In a 5-2 decision, the majority in Michigan Farm Bureau v. Department of Environment, Great Lakes and Energy (MSC Docket No. 165166) held that the conditions of the 2020 General Permit for concentrated animal feeding operations (CAFOs) were not “rules” under the Administrative Procedures Act (APA), as the plaintiffs had argued. Instead, the 2020 CAFO General Permit – which included some much-needed improvements over the prior permit – was a valid exercise of EGLE’s authority to issue permits that contain conditions necessary to protect water quality.
The Environmental Law & Policy Center (ELPC) thanks EGLE’s staff and the Michigan Attorney General’s office for their excellent work in defending the agency’s ability to protect Michigan’s waters and its citizens.
ELPC filed a “friend of the court” brief as pro bono attorneys in the case on behalf of a coalition of community and environmental groups.
In response to the Court’s decision, Rob Michaels, Managing Attorney at ELPC, said:
“The state Supreme Court got it right. EGLE will now be able to focus on drafting effective, science-based permits that protect Michigan’s waters, which are the lifeblood of the state’s identity and economy. We applaud the ruling and look forward to EGLE exercising the full extent of its authority to control the hazardous waste generated by concentrated animal feeding operations (CAFOs) and other industrial polluters.”
Yesterday’s ruling ends years of litigation which had delayed implementation of the 2020 General CAFO Permit for nearly 5 years. The plaintiffs – Michigan Farm Bureau and a collection of CAFOs – first filed an administrative “contested case” challenging the improvements in the 2020 Permit. ELPC and a coalition of community and environmental groups intervened in that case, presenting extensive evidence that not only were the 2020 Permit changes necessary, but even stronger permit improvements were also needed. The CAFOs filed a second, parallel challenge, this time in the Michigan courts, making similar arguments. That lawsuit made its way to the Michigan Supreme Court in late 2023.
In February 2024, ELPC and our coalition filed a “friend of the court” brief asking the Michigan Supreme Court to reverse a Court of Appeals ruling that would have wrongly locked into place the existing (and failing) CAFO General Permit. Yesterday’s ruling puts to bed the plaintiffs’ arguments that EGLE cannot issue protective environmental permits because of an administrative technicality.
“Any administrative law judges or courts who may hear future permit challenges will be able to focus on the only question that ever should have mattered: whether the permit’s conditions are necessary to protect Michigan’s waters,” Michaels said.
The coalition that signed on to the amicus brief includes: Alliance for the Great Lakes, Environmental Law & Policy Center, Environmentally Concerned Citizens of South Central Michigan, Food & Water Watch, Freshwater Future, For Love of Water, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Sierra Club, and University of Detroit Mercy Law School’s Environmental Law Clinic.