PLF's Sackett and Hawkes victories come to Michigan

August 13, 2016 | By KATIE DUKE

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”) said “no way” to the plans. The EPA vetoed the County’s permit application and 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 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.

Under the Clean Water Act, the federal government requires individuals, businesses, and municipalities to obtain CWA permits in order to fill land deemed to be a wetland. But all too often, the EPA abuses its power, forgetting about the practical effects of its decisions. In this case, 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 decision with legal consequences. The Commission submitted—correctly, in PLF’s estimation—that it could challenge this decision pursuant to the holding of Sackett v. EPA.

On May 18, 2016, a federal trial court in Michigan dismissed Marquette County Road Commission’s case, finding that Sackett did not apply to the facts of the case 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. Marquette County immediately asked the district court to reconsider its decision based on Hawkes, and its motion remains pending as of today’s date.

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.