This week, the Michigan Supreme Court issued a key ruling in an air permitting case involving AK Steel in South Dearborn. The Great Lakes Environmental Law Center and Olson, Bzdok & Howard P.C. served as plaintiff counsel in the case. Chris Bzdok from Olson, Bzdok & Howard P.C. argued the case in the Michigan Supreme Court. In South Dearborn Environmental Improvement Association, Inc. v. Department of Environmental Quality, by a 4-3 decision, the court held that a petition for judicial review of the issuance or denial of a permit to install for an existing source must be filed within 90 days of the Michigan Department of Environmental Quality’s final permit action. In ruling that the petition for review must be filed within 90 days, the Michigan Supreme Court overruled the decision of the Michigan Court of Appeals, which found a petition for review must be filed within 60 days, and rejected the position of AK Steel and the Michigan Department of Environmental Quality, both of which argued that a petition for review must be filed within 21 days.
The ruling of the Michigan Supreme Court is significant for two primary reasons. First and foremost, since the plaintiff’s permit challenge was filed within 59 days, which is well within the 90-day filing period the court found to be applicable, the challenge can now move forward to the substantive issue. Second, this ruling is significant because it is generally favorable for environmental organizations that may seek to challenge permits to install for existing air pollution sources going forward. The Michigan Supreme Court held that the permit appeal at issue must have been filed within a 90 days, as opposed to the 60 days previously required by the Michigan Court of Appeals or the 21 days argued for by AK Steel and MDEQ. In doing so, it has ensured that residents and environmental organizations will have 90 days should they wish to challenge permits to install issued by the MDEQ to existing facilities. This grants residents and environmental organizations with a sufficient amount of time to file their appeal, and ensures that they will have their day in court.
With the decision from the Michigan Supreme Court, the case will now go back to the state circuit court for consideration of the substantive issues involved in the MDEQ’s permitting decision. The key substantive issue is whether the Michigan Department of Environmental Quality had the legal authority to issue a correction to an existing permit to install and to “grandfather” the correction by applying the laws and regulations that existed at the time when the original permit was issued, rather than at the time the revised permit. The Great Lakes Environmental Law Center has argued that the MDEQ lacked authority to revise a permit to install. Instead, it must issue a new permit to install and apply the more stringent air quality regulations that were in effect at the time of permitting. We’re looking forward to litigating the substantive issues in the case.