As we reported last night, Judge Cleland of the U.S. eastern District Court in Michigan has finally issued a ruling on the POLAR lawsuit. We’ve read the ruling and are now prepared to offer some more detail. The ruling isn’t ideal, but it isn’t entirely bad either. Most importantly, there is still plenty of life left in the case and it is headed back to state court, which in our view is better for POLAR anyway– largely because the substantive issues in the case (of local consent and the enforcement of municipal ordinances and permits) are state issues anyway.
Judge Cleland ruled on two matters: the “threshold” question of whether POLAR had “prudential standing,” (which we’ve discussed before) and Enbridge’s motion to have the case dismissed. On the first, Cleland found that POLAR lacks prudential standing. On the second, he denied Enbridge’s motion to dismiss and remanded the case back to state court. He did not rule on Brandon Township’s motion to intervene in the case (more on that in a minute). We’ll discuss each of these a bit in turn. But first we’ll say that in our view the only clear winner in this ruling is Judge Cleland himself, who found a way to avoid getting his hands dirty by having to rule on (or even hear) any of the substantive issues. Basically, he just told everybody to take their quarrel some place else.
Which isn’t to say the ruling is not interesting. For instance, on the standing question, Cleland did not exactly accept Enbridge’s argument that POLAR is claiming rights that only belong to municipalities– that is, the right to enforce their laws and ordinances. Instead, Cleland takes issue with POLAR’s claims about the harm– or “special damages”– its members will suffer if those laws and ordinances are violated. He finds that POLAR does not establish that Enbridge’s (alleged) violations of the state constitution and municipal ordinances will cause harm to POLAR’s members. He cites the example of a county permit:
POLAR argues that its Members’ property will be damaged if Enbridge begins construction without securing the required environmental permits. For example, Enbridge allegedly has not yet obtained the Soil Erosion and Sedimentation Control Permit from the Berrien County Drain Commissioner. POLAR argues that if Enbridge begins construction without obtaining that permit, it will harm the soil on its Members’ property, thereby causing special damages. This argument assumes that Enbridge will damage the Members’ soil only if it fails to obtain the permit. Yet such an outcome is neither guaranteed, nor does it logically follow: Enbridge may either meet or violate Berrien County’s safety standards for soil erosion whether it obtains the permit or does not. POLAR, in this example, has not offered any evidence to show that its Members’ land located in Berrien County will be harmed “resulting from” Enbridge’s failure to secure a permit.
For Cleland, this example shows that “POLAR has not met its burden of alleging that its Members will suffer special damages as a direct result of Enbridge violating the Michigan laws. Therefore, POLAR does not have prudential standing to bring its public nuisance claim.”
However, just because POLAR lacks standing (because of its failure to establish special damages resulting from Enbridge’s violations), it does not follow for Cleland that the suit should therefore be dismissed, as Enbridge requested. And here the question for Cleland is quite simple (in fact, you can almost hear him breathing a big sigh of relief) because “a federal court has no subject matter jurisdiction over a case where a plaintiff lacks constitutional standing.” In other words, having found the POLAR lacks standing, the substantive questions in the case– including the questions of whether to dismiss it and whether to accept Brandon Township’s motion to intervene– can’t be heard or ruled upon in federal court. Instead, the case has to go back to state court where it all began.
So, what does all of this mean for the lawsuit? Well, for one thing, it means that the case lives on, which is obviously a good thing, perhaps even a minor victory, since it’s pretty clear that the whole reason Enbridge dragged it into federal court in the first place was because they thought that would sink it. It’s also good news because the standards to establish standing in Michigan state court aren’t nearly as strict as federal standards. Additionally (and this is pure speculation on our part), a state court judge might well be more inclined to relax the standard for standing because he or she thinks the substantive issues– enforcement of the state constitution and local ordinances–do deserve to be heard, whereas Judge Cleland, we’ve always suspected, never really wanted to dig around in that muck at all.
Of course, the other outstanding and unresolved question has to do with the Michigan Townships Association and Brandon Township. Will the MTA intervene or, at least, file an amicus in state court? Will Brandon once again intervene? After all, there is no doubt about their standing. And it’s hard to see why Brandon wouldn’t continue (as they publicly resolved to do). They’ve come this far and the issues haven’t really changed: Enbridge is no less intractable now than they were two days ago– and they are certainly no more in compliance with the laws than they were two days (or two months) ago. What has changed, interestingly enough, is the Brandon Township board. As we noted in our tribute to them a couple of weeks ago, this is a period of transition. It’s hard to know whether the incoming board is going to be as willing to take this battle on as the steely-eyed group they’re replacing. However, as we’ve said before we fully trust Supervisor Kathy Thurman and her resolve. The coming days and weeks should be very interesting.