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State Shuts Out Public on Environment

Barriers high to citizens involvement, low to industrial access

August 1, 1999 | By Keith Schneider
Great Lakes Bulletin News Service

The Michigan Environmental Protection Act of 1970 was the first law in the nation to broaden the scope of interests allowed into agency or civil courtrooms.

"The intent of MEPA," says Traverse City environmental attorney and Institute General Counsel Jim Olson, "was to grant a sizable share of the responsibility of protecting the environment to citizens, and to resolve most cases before they had to go to court."

The U.S. Congress soon followed Michigan's lead in the mid-1970s by providing for both citizen administrative appeals and lawsuits in the Clean Water Act and other important laws.

Michigan is one of two states in the country that administers the wetland portion of the Clean Water Act on their own. Mr. Johnson's challenge to DEQ's wetland decision falls under this law, as well as Michigan's own environmental laws. Yet the DEQ has decided not to uphold thecitiz en appea ls part of itsfeder al responsibility.

Ken Silfven, DEQ press secretary, says he believes the administrative law judge, appointed by the Governor, knows what he's doing. "We're willing to let Mr. Patterson's opinion speakforitself," hesaid.

But that opinion runs counter to the intention of the U.S. Congress when it passed the Clean Water Act and of the Environmental Protection Agency, which trusted Michigan to follow that law.

"Michigan has assumed the federal standard, but we don't get the federal standard," says Ellen Kohler, Mr. Johnson's attorney.

Data on how often concerned citizens use the administrative appeals route to environmental justice is unclear. But Mr. Johnson's case and others in recent years make it obvious that the DEQ has no intention of granting them standing.

A group of citizens from the protected Jordan River Valley tried in 1996, for example, to present arguments against a natural gas drilling proposal on state forest land there. As in Mr. Johnson's case, a DEQ administrative law judge ruled that their interest in the Jordan Valley did not provide them with standing to speak.

The Jordan Valley group ultimately prevailed. They persisted until they no longer could be ignored, by organizing hundreds of residents statewide to call and write public officials in Lansing.

Command and Control
A few years ago, Mr. Johnson or the Jordan Valley group might have taken their concerns to the Natural Resources Commission, a once-independent citizen advisory board. But Gov. Engler changed all that in 1991, when he transferred most of the Commission's authority to the director of the DNR, who answers to the Governor.

The same year he disabled the NRC, Gov. Engler eliminated another 19 citizen advisory boards across state government.

The last gasp of citizen oversight came in 1995, when Gov. Engler split off the environmental enforcement wing of the DNR to create the DEQ, which also answers to the Governor. The result is that Michigan is the only Great Lakes state without an independent oversight board to review decisions on environmental policy-making or permitting.

"The DEQ will deny six different ways that they've cut off citizen access," says Detroit environmental attorney Jeff Haynes. "But the fact of the matter is, you can't go in front of a board like the Air Pollution Control Commission anymore and have them make a decision."

Invitation to Lawsuits
Lawsuits are the remaining option for citizens shut out of both the state's policymaking and procedural review processes. The courts still are open to citizen suits, and people are winning cases calling for the DEQ to do its job, says Mr. Olson. "But it's counterproductive to the DEQ's own interests, as well as the citizens of Michigan, to foster lawsuits and controversy by closing off administrative appeals," he said.

"There is no cost-effective way to challenge DEQ, period," says Ellen Kohler. "All Mr. Johnson wants is his day in court, but he doesn't have $30,000 to do it."

That's a tough sum for most people to muster — to pay for attorneys, expert witnesses, and court fees — even if they have the time and talent to galvanize statewide political support and donations for their legal cause.

Investors in environmentally damagingdevelopment projects, however, do not have this problem. DEQ's decision to keep Mr. Johnson and other concerned citizens out of environmental permit cases clearly states that theagency's administrative appeals system is open to private interests only.

CONTACTS:Ellen Kohler, Kohler & Black, 104 S. Union St., Traverse City, MI 49684, 231-929-9471; Jim Olson, Olson & Noonan, 420 East Front St., Traverse City, MI 49686, 231-946-0044.

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