Summary
In Dafter, supra at 504, the case on which the Court of Appeals specifically relied, the Court held that the plaintiff's failure to address the Portage factors and merely alleging violations of another statute were insufficient to establish a violation of the MEPA.
Summary of this case from Nemeth v. Abonmarche DevelopmentOpinion
Docket No. 145528.
Submitted October 6, 1992, at Marquette.
Decided March 1, 1993, at 10:30 A.M.
Peacock, Ingleson Stenton, P.C. (by Harry Ingleson, II), for the plaintiff.
Thomas J. Veum, P.C. (by Leanne Barnes Deuman), for the defendant.
Before: CONNOR, P.J., and BRENNAN and MARILYN KELLY, JJ.
Plaintiff, Dafter Sanitary Landfill, appeals as of right from a September 26, 1991, order granting summary disposition to Superior Sanitation Service, Inc., and dismissing plaintiff's complaint. We affirm.
Plaintiff filed suit alleging that Superior's closure of one landfill and its construction and maintenance of another landfill violated the Solid Waste Management Act (SWMA) and Michigan's Environmental Protection Act (MEPA). The court dismissed plaintiff's SWMA claim, finding that plaintiff failed to allege sufficient facts to establish a prima facie claim under the SWMA because plaintiff did not allege any harm to itself resulting from Superior's violations. The trial court dismissed plaintiff's claim under the MEPA on the ground that plaintiff failed to establish a prima facie case by failing to allege facts that rise to the level of harm required under the act. The court stated that plaintiff merely alleged a potential for harm and failed to identify the harm.
MCL 299.401 et seq.; MSA 13.29(1) et seq.
MCL 691.1201 et seq.; MSA 14.528(201) et seq.
On appeal, plaintiff argues that the court erred in granting summary disposition because it was not necessary for plaintiff to allege an individual injury under either act, only an injury to the plaintiff as a member of the general public. However, as noted above, the trial court only held that plaintiff failed to prove an individual injury with respect to the SWMA claim. We address dismissal of that claim first.
The court apparently granted summary disposition of both counts pursuant to MCR 2.116(C)(10), having considered depositions as well as the complaint. Check Reporting Services, Inc v Michigan Nat'l Bank-Lansing, 191 Mich. App. 614, 622; 478 N.W.2d 893 (1991). A motion brought under this subrule should be granted when there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Traffic Jam Snug, Inc v Liquor Control Comm, 194 Mich. App. 640; 487 N.W.2d 768 (1992). Courts are to apply the plain meaning of statutes. Lake Angelus v Oakland Co Rd Comm, 194 Mich. App. 220, 224; 486 N.W.2d 64 (1992). Statutes are to be construed as a whole, and absurd or unreasonable results must be avoided. Traffic Jam Snug, Inc, supra; Dick Loehr's, Inc v Secretary of State, 180 Mich. App. 165, 169; 446 N.W.2d 624 (1989).
The SWMA provides in pertinent part:
(1) The director or a health officer may request that the attorney general bring an action in the name of the people of the state, or a municipality or county may bring an action based on facts arising within its boundaries, for any appropriate relief, including injunctive relief, for a violation of this act or rules promulgated pursuant to this act.
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(4) This act shall not be construed to preclude any person from commencing a civil action based on facts which may also constitute a violation of this act or the rules promulgated under this act. [MCL 299.433; MSA 13.29(33).]
The plain meaning of subsection 4 is that a private citizen is not prohibited from commencing a civil action merely because the suit is based on facts that also constitute a violation of the act. We interpret this provision to mean that a private citizen may commence a civil action for relief for personal injuries on the basis of facts that may also constitute a violation of the act. The provision clearly does not grant a private citizen the right to commence a civil action under the act alleging injuries as a member of the general public. To accept plaintiff's argument would mean that a private citizen would be able to step into the shoes of the attorney general and bring an action on behalf of the public. This could not be what the Legislature intended. Accordingly, we reject plaintiff's argument. Moreover, a review of the record provided to us reveals that plaintiff failed to allege any personal harm. Plaintiff merely alleges that Superior's violations of the SWMA at both landfills "has and is likely to pollute, impair or destroy the air, water and other natural resources." Therefore, we find that the trial court properly granted summary disposition of this count.
We note that we have not been provided a copy of the deposition transcript that the trial court considered in granting summary disposition.
With regard to the trial court's dismissal of plaintiff's MEPA claim, the MEPA provides, in pertinent part:
The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity 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 the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction. [MCL 691.1202(1); MSA 14.528(202)(1).]
In order to "determine whether a plaintiff has established a prima facie case under the MEPA, the trial court must consider whether a natural resource was involved and whether the effect of the activity on the environment rose to the level of impairment to justify the court's injunction." Holly Twp v Dep't of Natural Resources (On Rehearing), 194 Mich. App. 213, 216; 486 N.W.2d 307 (1992). The second part of the test is at issue in the present case. In determining whether the effect rises to the level of impairment that justifies an injunction by the court, the following factors should be considered:
"(1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable (for example, by replanting trees or restocking fish), (3) whether the proposed action will have any significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed), and (4) whether the direct or consequential impact on animal or vegetation will affect a critical number, considering the nature and location of the wildlife affected." [ Attorney General ex rel Natural Resources Comm v Balkema, 191 Mich. App. 201, 206; 477 N.W.2d 100 (1991), quoting Portage v Kalamazoo Co Rd Comm, 136 Mich. App. 276, 282; 355 N.W.2d 913 (1984).]
In the present case, plaintiff failed to address any of these factors. As noted above, plaintiff merely alleged in its complaint that Superior's violations of the SWMA at both landfills "has and is likely to pollute, impair or destroy the air, water and other natural resources." Plaintiff merely states this conclusion without any facts to support it. Accordingly, we find that the trial court properly granted summary disposition where the record revealed that plaintiff failed to establish a prima facie showing that Superior's actions in the construction, operation, and closure of its landfills rise to the level justifying the issuance of an injunction under the MEPA.
Affirmed.