YOUNG, J. (dissenting).

I respectfully, but vigorously, dissent from the extraordinarily lawless and profoundly dangerous lead opinion and from the results reached by a majority of this Court.

This case represents one of the most shocking examples of the assertion'of power that is not grounded in the constitution or any statute. This case is simply an empty vehicle to reach desired policy results. This is so because this case was moot in June 2010 when the majority inexplicably denied defendants' meritorious motion to dismiss for mootness; this case was moot in November 2010 when this Court heard oral arguments on the case, despite its obvious mootness; and this case remains moot today, despite the majority's raw exercise of power in deciding a nonjusticiable case. The lead opinion does not even attempt to respond to this dissent because there are no satisfactory responses. Because I continue to believe that this Court should not decide moot cases, I would dismiss this appeal.

Unwilling to forgo the opportunity to resolve a non-existent conflict to attack precedent with which they disagree, the lead and concurring opinions overturn this Court's decision in Preserve the Dunes v Dep't of Environmental Quality that the Department of Environmental Quality (DEQ) may not be sued under the Michigan environmental protection act (MEPA) for issuing a permit. Indeed, the lead and concurring opinions now conclude that the DEQ may be sued even if the permit it issued was already successfully challenged under the appropriate administrative procedures. Furthermore, the lead opinion fashions a new common law rule governing water rights out of whole cloth and without citing any authority for its new categorical rule. Instead, the lead opinion's categorical rule usurps the ability of the DEQ's environmental experts to determine what action appropriately protects the natural resources held in public trust, and it usurps the ability of lower courts to judge the validity of those expert analyses by interposing a categorical rule prohibiting "contamination," regardless of actual harm to the relevant watercourse. Because Michigan law has not heretofore provided for such a categorical rule, I must vigorously dissent from this palpably erroneous decision. Again, the lead opinion reaches its decision on the substantive merits of this case without responding to any of the critiques I make of its argument.

I. FACTS AND PROCEDURAL HISTORY

Defendant Merit Energy Company owns land in the Manistee River watershed that contains a plume of contaminated groundwater. When Merit purchased the land, the contaminated plume already existed and threatened private wells for drinking water. Merit's purchase of the land was contingent on an agreement with the DEQ requiring Merit to remediate the plume. Accordingly, Merit devised a corrective action plan to treat the contaminated water and to discharge the treated water into Koike Creek, part of the AuSable River watershed. To effect this plan, Merit obtained an easement from "the Michigan Department of Natural Resources (DNR) to "place, construct, operate, repair and maintain [a] Pipeline" beginning on Merit's property and ending at Koike Creek. Merit also sought DEQ approval of its plan. The DEQ issued a certificate of coverage (COC), which affirmed that the proposed discharge was consistent with a general permit that allowed "discharges of wastewater contaminated by gasoline and/or related petroleum products . . . ." Therefore, Merit received the requisite certification that it could discharge under "a valid national or state permit. . . ."

Plaintiffs include riparian owners along Koike Creek. They challenged the COC in a contested case hearing pursuant to the Administrative Procedures Act. After the administrative referee affirmed the DEQ's decision, plaintiffs appealed by right to the Otsego Circuit Court. In addition to appealing the contested case decision, plaintiffs brought original claims against defendants for alleged MEPA violations and alleged violations of plaintiffs' common law riparian rights. The circuit court separated plaintiffs' appeal of the contested case decision from their original claims and remanded the contested case decision for review by the director of the DEQ. The director affirmed the administrative decision to issue Merit a COC. On appeal, the circuit court vacated the COC because the discharge allowed under the COC contained contaminants beyond those allowed under the general permit the COC purported to enforce. The circuit court's decision invalidating the COC remains in force.

The circuit court conducted a 13-day bench trial to consider plaintiffs' common law and MEPA claims. The court held that the DNR's proposed easement did not provide Merit with the necessary riparian rights to discharge anything into Koike Creek. The circuit court also concluded that the proposed discharge would violate plaintiffs' riparian rights. In reaching this decision, the court applied the "reasonableruse balancing test" that the Court of Appeals articulated in Mich Citizens for Water Conservation v Nestlé Waters North America Inc. Because "[t]he proposed use is for the benefit of distant non-riparian parcels at the expense of local riparian rights" and because "[t]he delicate ecosystem of Koike Creek is not a suitable location for the discharge of treated water in the quantities proposed," the court concluded that the proposed discharge would constitute an unreasonable use of Koike Creek. Accordingly, it enjoined defendants from discharging the treated water into Koike Creek in the volume proposed, 1.15 million gallons a day. The court also determined that plaintiffs had presented a prima facie MEPA violation with respect to both Merit and the DEQ.

Defendants appealed in the Court of Appeals, and plaintiffs filed a cross-appeal in that court. The DEQ challenged the circuit court's ruling that it could be sued on the theory that its COC violated MEPA. Merit challenged the circuit court's conclusions regarding the scope of the DNR's easement, the application of the "reasonable use balancing test" in determining that the proposed discharge was unreasonable, and the application of MEPA and the common law to the proposed discharge. On cross-appeal, plaintiffs argued that the circuit court should not have applied the Nestlé "reasonable use balancing test" because, as part of the common law pertaining to groundwater, it was inapplicable to their surface water riparian rights.

A unanimous Court of Appeals panel reversed in part the circuit court's ruling. Citing this Court's opinion in Preserve the Dunes, the Court of Appeals concluded that the DEQ's administrative decision to issue permits to Merit did not violate MEPA. The Court of Appeals also reversed the circuit court's ruling on the scope of the DNR's easement to Merit and concluded that the DNR conveyed the right to discharge water, which the panel characterized as "inherently riparian and therefore connected to, rather than apart from, the land." However, the Court of Appeals affirmed the circuit court's application of the "reasonable use balancing test," thereby leaving in place the injunction against Merit's proposed discharge.

Plaintiffs sought leave to appeal in this Court, claiming that this Court should, among other requested relief, overturn the "reasonable use balancing test" and this Court's decisions in Preserve the Dunes and Mich Citizens for Water Conservation v Nestlé Waters North America Inc. Defendant Merit did not cross-appeal. This Court granted plaintiffs' application for leave to appeal on January 29, 2010, and specifically asked the parties to brief, among other issues, "whether Michigan Citizens v Nestlé Waters . . . and Preserve the Dunes v DEQ . . . were correctly decided."

In the intervening period, however, Merit quit-claimed its interest in the easement back to the newly combined Department of Natural Resources and Environment and provided thorough documentation to this Court to prove that it had done so. Accordingly, Merit moved to dismiss, claiming that plaintiffs' appeal was moot because Merit had abandoned its plan to discharge water into Koike Creek, as evidenced by its relinquishment of the DNR easement. Because Merit no longer had physical access to Koike Creek, it argued that it could not violate MEPA or plaintiffs' common law riparian rights in the way plaintiffs alleged. Further, Merit offered proof that it had filed for a new ground-water discharge permit to achieve its treatment goals by an alternative plan that would avoid discharging treated water into Koike Creek. Nevertheless, a majority of this Court denied Merit's motion to dismiss for mootness on June 18, 2010.

II. STANDARD OF REVIEW

This case implicates issues of constitutional law, statutory interpretation, and the common law. Each of these issues is a question of law, which this Court reviews de novo.

III. JUSTICIABILITY A. BACKGROUND

This Court has the constitutional authority to exercise only the judicial power, not "powers properly belonging to another branch . . . ." The people of Michigan have ratified this "cardinal principle" of republican government into each of their successive constitutions since the first, the Michigan Constitution of 1835. Moreover, this principle is "`in harmony with American political theory'" Indeed, the drafters of the United States Constitution made it clear that each branch of government could not exercise the powers of the other two branches. James Madison considered the principle of separation of powers essential to the operation of the federal government:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.[]

Madison went on to explain that, despite the strong disagreements between federalists and antifederalists over the proper scope of the federal government, all agreed that the tripartite form of government was sacrosanct:

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.[]

In the nearly two and a quarter centuries since the United States Constitution's ratification, the separation of powers doctrine has become "[p]erhaps the most fundamental doctrine in American political and constitutional thought. . . ."

Although the Michigan Constitution does not expressly define "the judicial power," as early as 1859, this Court limited the judicial power to "the power to hear and determine controversies between adverse parties, and questions in litigation." Justice THOMAS COOLEY wrote:

[A] marked difference exists between the employment of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases.[]

Justice CHAMPLIN applied this principle in Risser v Hoyt, explaining:

[T]he exercise of judicial power in its strict legal sense can be conferred only upon courts named in the Constitution. The judicial power referred to is the authority to hear and decide controversies, and to make binding orders and judgments respecting them.[]

Thus, there is more than a century and a half of authority from this Court that limits the constitutional power of the judiciary to deciding live cases and controversies between interested parties. Moreover, the current constitutionally defined exceptions to this rule help to prove the rule itself:

In considering whether the Court should have the power to issue'advisory opinions in nonadversarial proceedings at the request of other branches of government, the delegates' entire discussion was clearly premised on the unquestioned assumption that the judicial power, generally, was rooted in a case or controversy requirement. At the outset, Delegate Harold Norris explicitly asked with regard to the proposed section: "Does that mean that as far as this committee is concerned, they do not wish to preserve the traditional notion that there must be a case or controversy presented before the court may exercise its judicial power?" 1 Official Record, Constitutional Convention 1961, p 1544 (emphasis added). When the question was raised whether the power to issue an advisory opinion would be equivalent to the courts' preexisting power to issue declaratory judgments, Delegate Eugene Wanger similarly specified that the courts' preexisting power, even in the arena of declaratory judgments, distinctly required "an actual controversy between individuals. . . ." Id. at 1545. Delegate Raymond King may have expressed the understanding most clearly when he remarked:

" We are indeed contemplating a very serious change in what I think to be the history and the tradition of justice in this country. Mr. Wanger has pointed out the troubles that the Massachusetts supreme court got into when they allowed themselves to leave the theory of case and controversy." [Id. at 1546 (emphasis added).]

Indeed, even with regard to the limited expansion of judicial power represented by the proposed advisory opinion provision, delegates were expressly concerned that it would "adversely affect[] the separation of powers doctrine . . . ." Id. at 1545 (Delegate Wanger); see also id. at 1546 (Delegate Jack Faxon indicating that the convention "should be wary of any violation of the separation of powers"); id. at 1547 (Delegate King stating: "I think we have established through the English common law and our adherence thereto a system of justice, a system pf separation of powers which has proven itself, and I think we ought to be very reluctant at this time to try something new.").[]

More recently, this Court has articulated the following core definition of the judicial power:

The "judicial power" has traditionally been defined by a combination of considerations: the existence of a real dispute or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.

Perhaps the most critical element of the "judicial power" has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, Muskrat v United States, 219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in which the plaintiff has suffered a "particularized" or personal injury. Massachusetts v Mellon, 262 US 447, 488; 43 S Ct 597; 67 L Ed 2d 1078 (1923). Such a "particularized" injury has generally required that a plaintiff must have suffered an injury distinct from that of the public generally. 7d.[]

This case involves an issue central to this Court's constitutional exercise of the judicial power: mootness.

B. ANALYSIS

The long-established mootness doctrine prevents courts from hearing abstract questions of law in cases that no longer contain live controversies. This Court has recently reaffirmed that moot questions generally cannot be adjudicated. People v Richmond is merely the most recent affirmation of this well-established principle and is entirely consistent with over a century of precedent of this Court. Street R Co of East Saginaw v Wildman, an 1885 case of this Court, is an especially apt application of the mootness doctrine. In Street R Co, the plaintiff railroad sought to enjoin the defendant from moving a building along its railroad tracks "to the great interruption of its business and profits, the serious inconvenience of the public, and the hindrance and delay of the United States mails which it carried . . . .' Shortly after the trial court dismissed the plaintiffs claim, but before the plaintiff appealed in this Court, the defendant moved the building, thereby negating any ability for a court to prevent the claimed harm through the injunctive relief sought. On appeal; this Court determined that "[i]f the complainant was ever entitled to the [equitable] relief prayed for, we cannot now make any decree to aid it" because "[w]e can hardly prevent [the defendant] from doing what has already been done."

In a subsequent case, Anway v Grand Rapids R Co, this Court further articulated the scope of the judicial power as it related to moot questions:

"Courts of judicature are organized only to decide real controversies between actual litigants. When, therefore, it appears, no matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court, from a sense of its own dignity, as well as from regard to the public interests, will decline a determination of the fabricated case so fraudulently imposed upon it."[]

The Court concluded with a nonexhaustive list of cases in which the Michigan Supreme Court had previously "declined to consider abstract questions of law and which [it] declined to decide where our conclusions could not be made effective by final judgment, decree, and process . . . ."

The facts of this case make clear that Merit no longer has the physical means of discharging treated water into Koike Creek, and the circuit court vacated the certificate of coverage issued by the DEQ. Thus, the very harms that plaintiffs sought to enjoin no longer exist. Merit has no legal means to injure plaintiffs. The plain fact that the lead opinion ignores is that this Court simply cannot remedy harms that cannot now possibly occur. Stunningly, all of this is a matter of indifference to those who subscribe to the lead opinion's result. Apparently, the conclusive facts of the case are of no moment or hindrance when the goal is to use this case as a vehicle to reach policy objectives that the lead opinion wishes to address.

As established by Street R Co and subsequent caselaw regarding mootness, it obviously follows for all but a majority of this Court that, without the threatened construction and use of the pipeline and without any DEQ permit authorizing the discharge, there remains no threatened injury to plaintiffs' riparian rights, and certainly none that this Court can remedy. Similarly, there remains no threatened MEPA violation, either by Merit or by the DEQ.

In short, plaintiffs' common law riparian rights and their rights under MEPA are secure. Indeed, plaintiffs do not now contend that they have an immediate injury at stake; they nevertheless want this Court to rule on the substantive legal issues — for the benefit of future cases. This is the definition of mootness. Again, the Street R Co decision provides guidance:

It was suggested on the hearing that we ought to settle the rights of the parties so that the principle established might be a guide in other cases likely to arise. But courts of equity will not lend their aid by injunction for the enforcement of a right or the prevention of a wrong in the abstract, not connected with any injury or damage to the person seeking relief, nor when such injury or damage can be fully and amply recovered in an action at law. Nor are courts of equity established to decide or declare abstract questions of right for the future guidance of suitors.[]

In their brief opposing Merit's motion to dismiss, plaintiffs claimed that this case fits into an exception to the mootness doctrine, that "the issue is one of public significance that is likely to recur, yet evade judicial review." Not so.

The issues presented here are not the sorts of issues whose transitory nature — often because the issues involved are time-sensitive — makes it likely that future litigation would "evade judicial review." To the contrary, any riparian owner aggrieved by the actions or imminently threatened actions of another can seek injunctive or other relief.

The lead opinion claims that "the trial court has left open the door for Merit to discharge treated water into Koike Creek at a lower than originally proposed rate." This claim appears plausible when looking solely at the circuit court's June 26, 2007, amended opinion. But that opinion was superseded by subsequent events. In particular, the circuit court's January 31, 2008, opinion ruled that the DEQ had erroneously issued a permit to Merit. Both the Court of Appeals and, eventually, this Court denied defendants' applications for leave to appeal, leaving intact the circuit court's opinion. Accordingly, even if the circuit court's June 26, 2007, decision "left open the door for Merit to discharge treated water into Koike Creek," its January 31, 2008, decision closed that door, and this Court's denial of leave bolted the door shut. Further, without either physical access to Koike Creek or a valid permit, Merit has no lawful authority to discharge any amount of anything into Koike Creek.

In short, there is not a clearer instance of mootness than this case: the action originally challenged by plaintiffs can no longer be physically or legally accomplished by any of the defendants. Nevertheless, a majority of this Court has seen fit to decide the substantive issues of this case. The decision of four members of this Court to proceed on the substantive merits is profoundly flawed and inconsistent with longstanding principles of constitutional law. Worse still, the lead opinion is itself profoundly flawed and inconsistent with longstanding principles of the common law and of statutory interpretation. Therefore, I am compelled to respond seriatim to the lead opinion's substantive claims.

IV. PLAINTIFFS' COMMON LAW RIPARIAN CLAIMS

I vigorously dissent from the lead opinion's creation of a new common law rule that certain discharges of contaminants are per se unreasonable infringements on riparian owners' rights. Unfortunately, I fear that the haste to render a decision in this case before the end of calendar year 2010, while perhaps grounded in a good intention to protect this state's environmental resources, could result in great mischief to the law. Indeed, "tgjood intentions, unsupported by well informed policy choices, often result in bad law." In its haste to fashion its rule, the lead opinion elided several necessary inquiries. More troubling, the lead opinion created out of whole cloth a palpably erroneous common law standard that is not grounded in this state's water law.

A. REASONABLENESS OF EASEMENT AND PROPOSED DISCHARGE

Although plaintiffs have won at all levels below on the issue whether the proposed discharge would have violated their riparian rights, they challenge the underlying law that the lower courts applied to the analysis. The lower courts applied the "reasonable use balancing test" as outlined in the Court of Appeals' Nestlé opinion. Plaintiffs claim that this was erroneous, first, because the Nestlépanel ignored or changed Michigan water law and, second, because the instant panel improperly extended Nestlé's groundwater decision to competing riparian surface water claims.

The Nestlé "reasonable use balancing test" applies a multifactor balancing test to determine whether the alleged violation of a plaintiffs water rights (in Nestlé, groundwater rights, and in the instant case, surface riparian rights) amounts to an unreasonable infringement of those rights. The Nestlé panel defined the "reasonable use balancing test" as follows:

While the nature of the balancing test requires that the appropriate factors be ascertained on a case-by-case basis, . . . several factors can be discerned that will be relevant to every application of the test. These factors include (1) the purpose of the use, (2) the suitability of the use to the location, (3) the extent and amount of the harm, (4) the benefits of the use, (5) the necessity of the amount and manner of the water use, and (6) any other factor that may bear on the reasonableness of the use.

When determining the purpose of the use, the court should consider whether the use is for an artificial or a natural purpose and whether the use benefits the land from which the water is extracted. Natural purposes include all those uses necessary to the existence of the user and his or her family, including the use of the water for drinking and household needs. . . .Further, in order to ensure that the needs of local water users are met first, water uses that benefit the riparian land or the land from which the groundwater was removed are given preference over water uses that ship the water away or otherwise benefit land unconnected with the location from which the water was extracted.

In assessing the suitability of the use to the location, the court should examine the nature of the water source and its attributes. A particularly large aquifer, stream, or lake may be unaffected even by extensive water withdrawals, whereas a marginal water resource may be unduly strained even by relatively modest withdrawals. . . .

In assessing the harm and benefits, the court should examine not only the economic harm and benefits to the parties, but should also examine the social benefits and costs of the use, such as its effect on fishing, navigation, and conservation. . . .

The court should also examine the extent, duration, necessity, and application of the use, including any effects on the quantity, quality, and level of the water. If the amount or method of water use is excessive or unnecessary and harms another's use, it will be unreasonable. Furthermore, if the harm caused by a water use can be readily modified to mitigate or eliminate the harm, the failure to take such steps may make the particular use unreasonable.[]

The lead opinion refuses to determine whether the Nestlé panel's "reasonable use balancing test" might be appropriate in some instances, but it conclusively determines this test to be inappropriate in the instant case because the proposed discharge was "manifestly unreasonable." Although the lead opinion cautions that it is not concluding that "diverting water from one watershed to another is ipso facto unreasonable," it does provide a categorical rule regarding contaminants when it observes that "[i]t would be incongruous to hold that it is reasonable to decontaminate water by contaminating different water." The categorical rule that the lead opinion fashions in its haste to render a decision in this case is inconsistent with longstanding principles of Michigan water law.

This Court's decision in Attorney General ex rel Wyoming Twp v Grand Rapids provides a prime example of the lead opinion's determination — willful or not — to ignore longstanding principles of Michigan water law. Wyoming Twp is particularly significant because it employed a reasonable use balancing test under circumstances similar to the facts here. In Wyoming Twp, the plaintiff riparian owners sought to enjoin the defendant city — also a riparian owner — from discharging its citizens' sewage into the Grand River. It is clear from the facts of the case that many of the citizens whose land was therefore benefitted lived on nonriparian parcels. Further, as will often be the case when a governmental entity disposes of sewage, it is possible — and potentially likely — that citizens of the defendant lived on land outside the watershed. But such facts were irrelevant; the Court's decision rested entirely on a reasonable use test to balance the rights of the competing riparian owners to use the waterway as they saw fit.

Writing for the majority, Justice STONE applied a balancing test to determine the extent to which the plaintiffs' riparian rights suffered as a result of the defendant's discharge. The Court explained that "city has the right to make a reasonable use of the waters of the river as a riparian owner." Accordingly, it articulated a rule that "where an unreasonable pollution of the water, amounting to a nuisance, or impairing the rights of the lower riparian proprietor, is created or maintained, an injunction will issue to restrain its continuance."

The central issue was the plaintiffs' ability to exercise their riparian rights, not simply the defendant's pollution of the Grand River. The Court explained: "Sewage cannot be thrown into the stream in such a way as to render the water foul and unfit for use." It emphasized that discharges of pollutants themselves were not per se impermissible; only the harmful effect of a particular discharge rendered it impermissible:

The maxim, "Use your own property in such a manner as not to injure that of another," can equitably be applied to the defendants in this case. It appears undisputed that the construction of a septic tank or tanks by the defendants within a reasonable time is feasible and practicable, and that thereby the sewage would be relieved from contaminating properties and so purified as to take away the offensive, unhealthful, and nauseating odors.[]

Accordingly, the Court enjoined the defendant from discharging sewage "until the same shall have first been, by the use of a septic tank or tanks, so deodorized and purified as not to contain the foul, offensive, or noxious matter (which it now contains) capable of injuring the complainants or their property, or causing a nuisance thereto . . . ."

The Court explicitly tied the reasonableness of a riparian discharge to the existence of a private nuisance. The two concepts are related because the existence of a private nuisance is itself dependent on whether the defendant's actions "`constitute unreasonable interference with the use and enjoyment of the land.'" Overall, the Court's decision in Wyoming Twp shows not only that the Nestlé panel's "reasonable use balancing test" is firmly rooted in the Michigan common law, but also that such a test was applied historically eyen when a riparian owner used a waterway to benefit nonriparian lands. By contrast, the lead opinion's claim that any pollutant from a different watershed discharged into Koike Creek is unreasonable per se is a sharp divergence from established Michigan water law.

Indeed, historical water law in Michigan consistently supports the lower courts' application of the "reasonable use balancing test" instead of the lead opinion's new categorical common law rule. Michigan riparian law dates to Justice COOLEY's 1874 decision in Dumont v Kellogg. In Dumont, the defendant "constructed a dam across a natural water course, and by means thereof wrongfully detained the water in the stream to the prejudice and injury of the plaintiff, who was proprietor of a mill previously erected on the stream below." The claim of error involved the trial court's instruction of the law to the jury, and so the Court articulated the proper law involving competing riparian claims. Justice COOLEY determined that equality of riparian ownership requires some sort of balancing of riparian interests:

But as between different proprietors on the same stream, the right of each qualifies that of the other, and the question always is, not merely whether the lower proprietor suffers damage by the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether under all the circumstances of the case the use of the water by one is reasonable and consistent with a correspondent enjoyment of right by the other. "Each proprietor is entitled to such use of the stream, so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, and not inconsistent with a like reasonable use by the other proprietors of land on the same stream above and below." . . . It is a fair participation and a reasonable use by each that the law seeks to protect. . . . It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress.[]

This Court also articulated important principles involving riparian rights in People v Hulbert. The central issue in Hulbert was whether, by swimming in the lake on which he owned property, the defendant criminally polluted the lake, which also served as a water supply to the city of Battle Creek. The prosecution presented expert witnesses who testified "that germs might have been thrown off the body of the respondent while swimming, which would produce disease, and that some of those germs might reach the intake pipe, and through it the consumers of the water, and be a source of ill health," even though "[i]t is not shown any such germs ever did reach the intake pipe, or that any illness in Battle Creek could be traced to the use of the water taken from this lake."

Writing for the majority, Justice MOORE concluded that Michigan and foreign caselaw made it clear "that the lower proprietor [i.e., the city] has no superior right to the upper one, and may not say to him that, because the lower proprietor wants to use the water for drinking purposes only, the upper proprietor may not use the water for any other purpose." Rather,

[e]ach proprietor has an equal right to the use of the stream for the ordinary purposes of the house and farm, even though such use may in some degree lessen the volume of the stream, or affect the purity of the water. . . .This right is not affected by the fact that the lower proprietor is a municipality instead of an individual.[]

The Court also implicitly required a fact-intensive balancing of the rights and effects of the riparian users:

In what we have said we do not mean to intimate that an upper proprietor may convert his property into a summer resort, and invite large numbers of people to his premises for purposes of bathing, and give them the right possessed only by the riparian owner and his family. We are undertaking to decide only the case which is presented here.[]

As this explication of Michigan water law shows, the lead opinion's creation of a categorical common law rule out of whole cloth is hasty and inconsistent with established water law. Believing that it is "unconscionable and destructive for this Court to determine that it is reasonable to spread dangerous contamination throughout Michigan," the lead opinion nevertheless would adopt a categorical rule without requiring a finding that the contamination is, in fact, "dangerous" to the watershed at issue] This is so because the circuit court only made an initial finding of fact that the volume of the proposed discharge (1.15 million gallons a day) could cause unreasonable harm to plaintiffs. It did not find that the treated water was harmful to Koike Creek regardless of volume; to the contrary, the circuit court specifically ruled that "the parties' proximity to and use of the watercourse, as well as the volume, source, and nature of the proposed discharge, were considered while determining whether the proposed discharge would be reasonable." Furthermore, its decision expressly contemplated that defendants might offer a planned discharge of contaminant that would be reasonable. Instead of reviewing the factual determinations of the circuit court, the lead opinion makes a ruling as a matter of law that any amount of discharge is per se unreasonable. There is simply no basis in law or fact for its ruling.

Incredibly, the lead opinion reaches its preferred result by creating a new categorical rule both without citing a single case in support and with apparent unawareness that caselaw has already established how courts should weigh water use on the basis of whether it benefits riparian or nonriparian land, if the specific facts of a case warrant a distinction. Citing longstanding precedent of this Court, the Court of Appeals panel in Nestlé expressly held that "water uses that benefit the riparian land . . . are given preference over water uses that. . . benefit land unconnected with the location [of the water withdrawal]." A court should "ensure that the needs of local water users are met first. . . ." Indeed, as the lower courts obviously concluded here, the factors listed in Nestlé directly address, on the basis of historical tests for reasonableness, each of plaintiffs' concerns about Merit's proposed water use. For example, Nestlé also asserted that "natural purposes," including "uses necessary to the existence of the user and his or her family," take precedence over artificial uses. As is particularly relevant to plaintiff Anglers of the AuSable, Inc., a court must also consider the proposed use's "effect on fishing, navigation, and conservation." Finally, the circuit court's ruling clearly took into account the Nestlé panel's holdings that "[i]f the amount or method of water use is excessive or unnecessary and harms another's use, it will be unreasonable," and "if the harm caused by a water use can be readily modified to mitigate or eliminate the harm, the failure to take such steps may make the particular use unreasonable."

The lead opinion's conclusion that Merit's proposed use is manifestly unreasonable simply because it involves two watersheds is unnecessary and displays a patent disregard for the rule of law and for this Court as an institution. Its unreasoned conclusion also threatens vast negative consequences for the residents and businesses of this state.

B. POTENTIAL CONSEQUENCES OF THE LEAD OPINION'S RULE

With little explanation that cites no proposition of law, save the unremarkable and uncontested principle that an unreasonable use of a watershed is prohibited, the lead opinion upends water law and declares a categorical per se rule precluding any amount of contaminant into Koike Creek. The lead opinion attempts to bouleverse the existing law of this state, the negative impacts of which attempt cannot fully be foreseen. It fails to account even for several obvious hypothetical situations in which its unbending rule inappropriately precludes reasonable discharges that do not harm riparian owners' rights.

For example, suppose the presence of a contaminant in a small watershed causes significant harm to the environment and to the people living within that watershed. Suppose further that environmental engineers determine that diverting that contaminant to a large watershed (or several other watersheds) via riparian owners' access easements would not harm the water contained in the larger watershed because the contaminant is safe when diluted in a large body of water. In this situation, the diversion would not harm the riparian rights of the larger watershed's users, but it would significantly improve the environmental conditions of the smaller watershed. Nevertheless, the lead opinion's categorical rule would seem to provide riparian owners at the point of discharge a cause of action to enjoin the discharge, despite no finding of harm to the larger watershed.

The lead opinion also seems to call into question whether and to what extent municipalities can discharge their residents' sewage. Suppose that a municipality's residents receive their water from one watershed and that the municipality discharges its residents' sewage into a different watershed. May riparian owners at the point of discharge successfully enjoin the municipality from discharging its residents' sewage upon a simple showing that the discharge was created from water taken from a different watershed? Although the Wyoming Twp decision would allow this discharge (assuming a finder of fact were to make appropriate findings of reasonableness), the rationale of the lead opinion would forbid it.

Consider an even simpler scenario: may a farmer no longer import water during dry seasons to irrigate his crops if any amount of the water, once sprayed onto his land, will drain into a river? According to the rationale of the lead opinion, arguably he may not. It appears that it will not matter whether the farmer uses potentially damaging fertilizers or harmless organic ones — either would "contaminate" the water as it runs off the plants and soil — given that actual injury to the watershed from his irrigation is irrelevant under the lead opinion's categorical rule. Indeed, because the lead opinion never eyen defines "contamination," fanners are left to wonder: Is irrigation precluded if the off-watershed irrigation water is contaminated with mere soil? With plant matter? Further, because the lead opinion's rule makes it no longer appropriate to balance the benefits and detriments of the particular use in relation to other uses of the watershed, the categorical prohibition would not be superseded even if the farm were a significant source of food or economic support for the farmer's community. Thus, the lead opinion's rule has the potential to cripple agriculture in this state — an industry that has an economic impact of more than $70 billion annually in this state's economy.

These are only a few hypothetical situations that the lead opinion's categorical rule would seem to forbid. Yet as these examples make clear, application of the lead opinion's rule — which requires water use to be enjoined on the basis of a vague notion of "contamination" instead of on the basis of relative harm — would stifle activity that simply does not harm existing watersheds and that is clearly beneficial to the community at large.

The lead opinion also fails to address arguments of defendants and their amici curiae — which raise additional critical concerns about the soundness and work-ability of the new rule — that on-watershed and offwatershed uses may be impossible to differentiate under some facts. The lead opinion's categorical rule suggests that a watershed's boundaries are sacrosanct, yet it has provided no authority for this principle. It does not even note Merit's related observation that its land — like countless other parcels in Michigan — sits nearly on the border of the surface water divide between the AuSable and Manistee watersheds, exemplifying Merit's argument that, as a matter of geographical fact, determining which watershed a parcel sits in is not always a black and white inquiry. Yet under the lead opinion's categorical rule, courts would have to make this determination, even when scientists and geographers cannot.

Finally, and most telling, as explained earlier, plaintiffs successfully enjoined Merit from discharging 1.15 million gallons a day into Koike Creek in the instant original action, and they successfully vacated the DEQ's COC on appeal of the contested case decision. Those proceedings were designed to take into account the very analyses that the lead opinion elides: namely, whether the particular proposed discharge would unreasonably interfere with plaintiffs' riparian rights and whether it would violate Michigan's environmental laws. This case's procedural history illustrates that the careful balance Michigan's riparian law has struck for more than a century serves citizens of this state, including riparian owners such as plaintiffs, well: not one drop of treated water has ever been allowed to enter the bodies of water plaintiffs sought to protect; the permit that would have allowed a discharge was vacated; and plaintiffs were awarded fees and costs pertaining to their claims against Merit. This litigation demonstrates that there is no need to disturb Michigan's balanced and effective riparian law. Ultimately, the broad strokes that the lead opinion uses in its haste to render its preferred policy decision in this case would severely damage this state's common law and its economy.

V. PLAINTIFFS' MEPA CLAIMS

Plaintiffs claim that both Merit and the DEQ violated

MEPA. MCL 324.1701(1) provides, in whole:

The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.

MCL 324.1703(1) requires the plaintiff to make "a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources . . . ."

Plaintiffs claim that the DEQ's issuance of the COC "is likely to pollute, impair, or destroy" Koike Creek and the AuSable River watershed in violation of MCL 324.1703(1). The lower courts applied this Court's precedent in Preserve the Dunes to rule that the mere issuance of a permit is not itself "conduct" that "is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources" in violation of MCL 324.1703(1).

A. PRESERVE THE DUNES WAS CORRECTLY DECIDED

In Preserve the Dunes, the plaintiff sought to enjoin a sand dune mining operation for which the DEQ had granted a permit. Although the plaintiff did not challenge the mining operation's eligibility for the permit during the appropriate time for review, it sought to undertake a collateral attack on the permit's issuance, claiming that the DEQ's mere issuance of the permit violated MEPA.

Writing for the majority, Justice CORRIGAN explained that, even if the DEQ had erred by issuing the permit, "[a]n improper administrative decision, standing alone, does not harm the environment. Only wrongful conduct offends MEPA." Accordingly, the Court rejected the plaintiffs collateral attack on the issuance of the mining permit. Of course, the Court's holding that "[o]nly wrongful conduct offends MEPA" did nothing to prevent an action against the mining operation for harming the environment. Indeed, if nothing else, the opinion underscored that the appropriate avenue to enforce MEPA is to seek relief from the entities whose actual conduct violates or would imminently violate MEPA.

The lead opinion claims that Preserve the Dunes "frustrated the legislative intent behind MEPA, and . . . represented a departure from this Court's precedent." To the contrary, Preserve the Dunes applied the language that the Legislature used in MEPA, and its holding was consistent with the holdings contained in this Court's earlier precedent.

When interpreting a statute, courts must "ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute." This requires courts to consider "the plain meaning of the critical word or phrase as well as `its placement and purpose in the statutory scheme.'" In enacting MEPA, the Legislature specified that it was regulating " conduct of the defendant [that] has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources . . .,"

The word "conduct" is not defined in MEPA, nor is it defined in the Natural Resources and Environmental Protection Act, within which all environmental regulations, including MEPA, fall. "[W]e give undefined statutory terms their plain and ordinary meanings." Accordingly, it is appropriate to use a dictionary to determine the appropriate meaning of the word "conduct" in MCL 324.1703(1). Merriam-Webster's Collegiate Dictionary defines "conduct," in relevant part, as "the act, manner, or process of carrying on[.]" This definition makes it clear that conduct requires some sort of action.

It is apparent from the placement of the term "conduct" within MCL 324.1703(1) that not only must a defendant engage in "conduct" to violate MEPA, but the defendant's conduct must itself "pollute[], impair[], or destroyO or [be] likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources . . . ." It is simply not the case that the issuance of a permit, by itself, pollutes, impairs, or destroys or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources. While a permit might precede conduct that pollutes, impairs, or destroys this state's environmental resources, it does not do so without subsequent action by an individual or entity. The lead and concurring opinions thus have not shown how the mere issuance of a permit violates MEPA.

The lead opinion also claims that Preserve the Dunes "insulatets] DEQ permit decisions from MEPA." As already demonstrated, this case is a perfect illustration that this is simply untrue. Judicial review of agency decisions is available through an appeal to circuit court pursuant to the Administrative Procedures Act (APA) after a contested case hearing. In other words, a person seeking judicial review of an administrative agency's issuance of a permit may assert that the agency failed to apply MEPA. As discussed, that is precisely what happened in this case. In plaintiffs' appeal of the contested case decision, the circuit court concluded that the DEQ's "approval of Merit's COC is illegal. . . because the proposed discharge and the proposed volume of discharge is likely to violate MEPA."

Accordingly, contrary to the lead opinion's unsupported assertion, the permitting process is far from "insulated." In this very case, MEPA was vindicated through an appropriate and entirely adequate procedural vehicle: the APA appeal. There was no need for plaintiffs to file a separate complaint under MCL 324.1701, alleging again that the MDEQ's issuance of the (already-invalidated) COC violated MEPA. As the procedural history of this case illustrates, and as Preserve the Dunes recognized, a MEPA case challenging the issuance of a permit constitutes an improper "collateral attack" that is nowhere contemplated by the statute.

B. PRESERVE THE DUNES WAS CONSISTENT WITH THIS COURT'S PRECEDENT

The lead and concurring opinions also-i have not shown how Preserve the Dunes departed from this Court's precedent. The lead and concurring opinions both refer to several cases that they urge support-1 their claim, but they fail to examine those cases in sufficient detail to show how they are inconsistent with Preserve the Dunes. In fact, the cases cited provide little support for the claim that Preserve the Dunes was incorrectly decided.

First, the lead and concurring opinions refer to Eyde v Michigan. However, the plaintiffs in Eyde claimed that "the construction of a sewer [was] violative of" MEPA's predecessor statute. Thus, Eyde unquestionably involved conduct, namely, the construction of a sewer. Moreover, the Court expressly indicated that its holding was "restricted to the unique facts of this case." As a result, the lead and concurring opinions' reliance on this case is specious.

Second, the lead and concurring opinions refer to Ray v Mason Co Drain Comrn'r. Ray involved "the kind of findings of fact required of the trial judge . . . in deciding an action brought under" MEPA's predecessor statute. Ray neither involved nor discussed whether the mere issuance of a permit can itself violate MEPA. Accordingly, it is simply irrelevant to the position that the lead and concurring opinions seek to advance.

Third, the lead and concurring opinions refer to West Mich Environmental Action Council v Natural Resources Comm (WMEAC). The plaintiffs in WMEAC challenged a consent order between the Natural Resources Commission (NRC) and several private entities to allow oil and gas development in a state forest. Pursuant to that consent order, the NRC granted permits for those private entities to drill 10 exploratory wells in the forest. Even before the NRC granted those permits, however, the plaintiffs claimed that the consent order "was likely to lead to the impairment of wildlife in the Forest." This Court's ultimate disposition was to order the trial court to enter "a permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August 24, 1977."[] Thus, this Court's injunction was not issued to enjoin the NRC from issuing permits or even to vacate the existing permits but to enjoin the underlying conduct that the permits purported to allow. WMEAC is, therefore, inapplicable to whether Preserve the Dunes was correctly decided.

Finally, the lead and concurring opinions refer to Nemeth v Abonmarche Dev, Inc. Nemeth involved a proposed development in the city of Manistee that the plaintiffs alleged would cause soil and sand erosion. At issue in Nemeth was whether the developers' (undisputed) violations of the soil erosion and sedimentation control act (SESCA) also violated MEPA. This Court concluded that substantive SESCA violations can present a prima facie MEPA violation. Thus, Nemeth similarly involved whether conduct underlying a permit — not the actual issuance of a permit — violates MEPA.

Accordingly, and contrary to the lead and concurring opinions' ipse dixit, Preserve the Dunes was not inconsistent with this Court's prior holdings.

C. THE LEAD OPINION'S ADDITIONAL RATIONALES

The lead opinion claims that it provides two additional "compelling justifications for overruling Preserve the Dunes." Neither of these justifications withstands scrutiny.

First, the lead opinion claims that Preserve the Dunes violates article 4, § 52 of the Michigan Constitution, which indicates that the "conservation and development of the natural resources of the state. . . [are] of paramount public concern" and that "[t]he legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."

This Court has recognized that the predecessor statute of MEPA was "the first legislation of its kind" and that its passage "attracted worldwide attention." Nothing in Preserve the Dunes prevented any plaintiffs who alleged an imminent injury to their property from participating in what former Chief Justice WILLIAMS called "the important task of environmental law enforcement " Indeed, plaintiffs here have already succeeded in enforcing MEPA by receiving an injunction preventing Merit from undertaking conduct that the circuit court concluded would violate MEPA. Preserve the Dunes did not stifle enforcement of MEPA. On the contrary, it focused enforcement of MEPA against those individuals and entities who are actually harming, or whose imminent conduct threatens to harm, this state's natural resources.

The lead opinion also determines that Preserve the Dunes should be overruled because, in the instant case, the DEQ "has done more than simply issue a permit that would result in the harm of natural resources" because it "has also granted an easement over state land to facilitate the harmful actions." It is simply incongruous to assert that the holding in Preserve the Dunes — that the mere issuance of a permit does not constitute "conduct" — should be overruled because the lead opinion concludes that the DEQ's actions in the instant case exceeded the mere issuance of a permit] Indeed, nothing in Preserve the Dunes prohibited actions against administrative agencies whose conduct actually pollutes or threatens to pollute the environment. Moreover, the lead opinion is simply incorrect in stating that the DEQ granted Merit an easement to facilitate its allegedly harmful actions. The DNR granted the easement to Merit, not the DEQ. Although today they are within the same entity (the Department of Natural Resources and Environment), they were separate executive agencies at the time the easement was granted. Thus, to the extent that the DNR's act of granting the easement arguably can be said to have been actionable "conduct" violating the relevant environmental statutes, this is not related to DEQ's issuance of the permit.' But this circumstance is not a problem for the lead opinion. Simply put, the lead opinion's argument that the issuance of the successfully challenged permit caused an environmental injury is specious.

D. STARE DECISIS PRINCIPLES MILITATE AGAINST OVERRULING PRESERVE THE DUNES

Not only does a majority of this Court erroneously conclude that Preserve the Dunes was incorrectly decided and was inconsistent with this Court's precedent, but the lead and concurring opinions do not seriously consider what effect the principle of stare decisis has on whether to overrule Preserve the Dunes. Stare decisis "`promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'"

Although the lead and concurring opinions (erroneously) conclude that Preserve the Dunes was wrongly decided, it is well established that "the mere fact that an earlier case was wrongly decided does not mean overruling it is invariably appropriate." Instead, this Court must determine the effects of overruling its prior decision, "including most importantly the effect on reliance interests and whether overruling would work an undue hardship because of that reliance." The lead opinion simply states, with no explanation, that "the law must be returned to how it was applied before Preserve the Dunes was incorrectly decided." The lead opinion's failure to undertake this analysis with any degree of seriousness further illustrates its haste to render a decision.

In fact, the lead opinion fails to make this analysis because such an analysis shows that Preserve the Dunes should be maintained. To overrule Preserve the Dunes, even if it were wrongly decided, "would produce chaos." The Preserve the Dunes majority's response to the dissent in that case provides a glimpse into the world the lead opinion seeks to create, one in which no administrative decision achieves finality:

Imagine the world that the dissent's reasoning would create. The present energy crisis offers a good example. For many years, our country has sought to decrease our reliance on foreign sources of oil. Suppose an oil company decided to invest in oil exploration in Michigan in reliance on a DEQ-issued permit. Under the dissent's view, MEPA would authorize a challenge at any time to flaws in the permitting process. Moreover, under the dissent's reasoning, a court must accept as true the bare assertion that a company's conduct will destroy natural resources. It can never rely'on a permit to do business. What sane investor would take such a risk? As gas prices soar, few people in Michigan would thank this Court for "protecting" the environment in this radical fashion.

The dissent's regime would render the permitting process a useless exercise. It would cripple economic expansion in Michigan and probably lead to disinvestment. No one would invest money to obtain a permit that is subject to endless collateral attacks.

MEPA nowhere strips the permitting process of finality. It is the dissent that makes a mockery of legislative intent by failing to anchor its exaggerated claims in the statute's actual language. MEPA does not impose the radical requirement that courts indefinitely police administrative agencies' permit procedures and decisions.[]

The lead opinion's rationale, such as it is, provides scant assurance that it has considered how disruptive overruling Preserve the Dunes will be to this state.

The concurring opinion attempts to undertake an analysis of stare decisis principles, but it also falls short of proving that Preserve the Dunes should be overruled. In particular, the lead and concurring opinions have not shown how Preserve the Dunes defies "practical work. Preserve the Dunes, 471 Mich at 523. ability," another factor militating against its claim that Preserve the Dunes should be overruled. To the contrary, even under Preserve the Dunes, the instant plaintiffs successfully enjoined the conduct that the DEQ's permit purported to allow and they successfully challenged the issuance of that permit on appeal from the appropriate administrative procedures. Indeed, if anything, this case shows how Preserve the Dunes appropriately and effectively interpreted Michigan's environmental law, permitting the successful protection of the environment and plaintiffs' riparian rights. This fact alone should have been persuasive to any jurist committed to stare decisis to avoid an unnecessary overruling of existing precedent.

Preserve the Dunes was correct when it was decMed, and it remains correct today. The lead and concurring opinions have not provided any serious reason for determining otherwise.

VI. CONCLUSION

This case is moot. Not only has Merit voluntarily abandoned the easement that granted it physical access to Koike Creek, the circuit court has also vacated the underlying DEQ permit that would have allowed it to make its proposed discharge. Accordingly, any substantive decision that this Court renders only affects the parties in the abstract. This Court has long stated that it is not a constitutional exercise of the judicial power to decide abstract cases. Therefore, I vehemently dissent from this Court's decision to render a substantive ruling in this case.

Furthermore, I strongly dissent from the lead opinion's unnecessarily disruptive disposition of the substantive issues in this case. The lead opinion fashions out of whole cloth a categorical rule that "contaminated" water originating from one watershed can never be discharged into watercourses in another watershed because such a discharge inherently violates the riparian rights of landowners at the point of discharge. This decision has no basis in Michigan's well-established water law, under which the touchstone of "reasonableness" has served the citizens of this state, including these riparian plaintiffs, very well. Finally, the lead and concurring opinions' claim that Preserve the Dunes was wrongly decided is inconsistent with the plain language of MEPA and will wreak havoc on this state's legal system.

In short, the lead opinion's palpably erroneous decision and the concurring justices' acquiescence in the result of that decision are affronts to the rule of law and reflect the majority's unseemly haste to render a decision in this case before the end of calendar year 2010. The decision this Court renders today is a prime example of the naked exercise of power without constitutional warrant. While there may be some who will welcome today's result, they should fear a judiciary that is willing to bend the law to accomplish its will. Those who support it may live to see this decision further undermine the state's fragile economy

For all the foregoing reasons, I respectfully, but strenuously, dissent. .

CORRIGAN and MARKMAN, JJ., concurred with YOUNG, J.