August 24, 2016

PLF files amicus brief on behalf of Marquette (MI) County Road Commission

By Mark Miller Senior Attorney

This past week, Pacific Legal Foundation filed an amicus brief in federal district court supporting the Marquette County Road Commission as it seeks to build a needed road across the Upper Peninsula of Michigan despite the EPA’s arbitrary and capricious objections.

Our Atlantic Center summer law clerk summarized the case in a blogpost recently*:

Marquette County, perched on the edge of Lake Superior, is one of the most populated counties in Michigan’s upper peninsula. In order to decrease traffic and to increase safety through the small towns in this area, the Marquette County Road Commission planned to build a road, County Road 595, through some undeveloped land. The County hoped to create a short-cut for heavy-duty trucks, most of which are used to transport ore from the local mine to its processing facility. Despite winning approval from the Michigan Department of Environmental Quality (“MDEQ”), the U.S. Environmental Protection Agency (“EPA”) repeatedly rejected the plans. By repeatedly rejecting the Road Commission’s plans despite the State’s approval, the EPA effectively vetoed the County’s Clean Water Act (“CWA”) permit application, despite the fact that Congress designed the CWA to allow the states to approve CWA permits.

In light of that EPA veto, pursuant to the Clean Water Act (“CWA”) authority to approve the Commission’s road plans transferred from the MDEQ to the U.S. Army Corps of Engineers. Although the EPA refused to ever provide a clear explanation for its decision-making in the case, at bottom it rejected the County’s plan purportedly for environmental reasons despite the County’s intent to protect more than 26 acres of wetlands for every one acre of wetland filled by the planned road project. For its part, the Corps refused to review the County’s permit application pending before the MDEQ. It demanded that the County file a new permit application and spend the hundreds of thousands of dollars, and years, that a new permit Corps’ application process would entail (on top of the year and tens of thousands of dollars already spent).

Under some interpretations of the Clean Water Act, the County had no choice but to dance to the music the EPA and Corps were playing. The CWA requires individuals, businesses, and municipalities to obtain CWA permits in order to fill land deemed to be a wetland. The MDEQ was willing to give them that CWA permit but the EPA blocked that move. The EPA effectively said to the County: “dance to our music, or you’ll never see a road permit.”

Rather than dance, Marquette County decided to fight back.

In early 2015, The Marquette County Road Commission sued the EPA and asserted that the EPA’s veto of the MDEQ permit amounted to an arbitrary and capricious final agency action with legal consequences that was remediable in court. The Commission submitted—correctly, in PLF’s estimation—that it could challenge this EPA decision in federal court pursuant to the holding of Sackett v. EPA.

Unfortunately, the district court disagreed. On May 18, 2016, a federal trial court in Michigan dismissed Marquette County Road Commission’s case, finding that Sackett did not apply and rejecting the Commission’s contention that the EPA veto amounted to a final decision. The Court also addressed the Eighth Circuit’s Hawkes v. U.S. Army Corps of Engineers decision regarding the finality of a jurisdictional determination, an obviously analogous final decision not unlike the final decision in the Marquette County case, but the Court found the reasoning of the Eighth Circuit unpersuasive.

Thirteen days later, of course, the Supreme Court of the United States saw the Eighth Circuit’s Hawkes decision a little differently than the Michigan district judge did. After the Supreme Court of the United States unanimously affirmed the Eighth Circuit’s decision in Hawkes, Marquette County immediately asked the district court to reconsider its decision based on Hawkes, and its motion remains pending as of today’s date. PLF just filed an amicus brief supporting Marquette County and its motion for reconsideration, explaining that Hawkes will become known as a watershed administrative law case that opens the door to challenges of agency action that previously the courts refused to let in the courthouse doors. The people must push back against an overreaching federal government; Hawkes, which extends the rule of Sackett, helps the people push back by allowing them to seek redress in court when federal government agencies arbitrarily and capriciously abuse their power. This Marquette County case ultimately will demonstrate the importance of PLF’s wins in Sackett and Hawkes.

Win or lose, PLF will take over the case on appeal and represent the Marquette County Road Commission before the Sixth Circuit Court of Appeals and, if necessary, the Supreme Court of the United States. PLF believes in the case so much that it has agreed to take on the case for that local government pro bono. The County does not wish to expend taxpayer funds to fight the EPA, even though it knows the EPA has overreached. It knows the EPA will seek to outspend it at every turn, as the federal government also does to individual property owners, no different from how it treats litigation with local governments. For this reason, PLF will step into the case and seek to right this wrong at no charge to the people of Marquette County.

Michigan citizens correctly believe enough is enough when it comes to EPA overreach. Everyone cares about the environment. But this road project will protect the environment, and will protect the safety of the people of Michigan, too. PLF looks forward to the trial court’s decision on the motion for reconsideration and taking on representation in the case at the court of appeals.

*This blogpost incorporates much of that earlier blogpost by law clerk Katie Duke.

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Marquette County Road Commission v. U.S. Environmental Protection Agency

The Marquette County Road Commission in Michigan’s upper peninsula, wants to build a road through some undeveloped land to create a short-cut for heavy-duty trucks transporting ore from a local mine to its processing facility. The state environmental quality agency agreed, but the federal EPA vetoed the county’s permit application for vaguely stated “environmental reasons” even though the county planned to protect 26 acres of wetlands for every one acre of wetland filled by the project.

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