It’s been a while– about four months– since we last provided an update on the lawsuit filed by POLAR (the non-profit legal defense fund Protect Our Land and Rights started by our friend Jeff Axt) in Oakland County Court. If you’ll recall, the suit sought an injunction against Enbridge, seeking Enbridge’s compliance with the “local consent” provision of the Michigan State Constitution, the state Highway Act, and the securing of all requisite environmental permits. If all of this is new to you or you’ve simply forgotten, our archives will provide you with a primer and some extended discussions of these matters.)
Eventually, Enbridge sought to remove the case to federal court, where they expected to get a friendly hearing and have the case dismissed. The federal judge did not dismiss the case, though he did rule that POLAR lacked standing in federal court. As a result, he remanded the case back to Oakland County. This seemed, at the time, potentially good news for POLAR (or so we thought), since the county court, we hoped, would have much more interest in addressing the substantive state Constitutional matters at stake– waters into which we never thought the federal judge would want to wade. We were even more hopeful given the history of the Oakland County Judge assigned to the case, Phyllis McMillen, who ruled favorably toward landowners in some of Enbridge’s condemnation suits.
Well, two weeks ago, Judge McMillen dismissed the POLAR case, finally ending the suit. The grounds of her dismissal? Not surprisingly, it was the old issue of standing. The ruling states, “At issue in the present case is whether POLAR has alleged damages of a special character distinct and different from the injury suffered by the public generally.” Then, after rehearsing POLAR’s claims about damages to its members, McMillen says,
To the extent that these paragraphs allege damages to the community as a whole, they would not qualify as special damages. As it relates to allegations of damage to POLAR’s members’ property, the alleged harm does not result from Enbridge’s alleged violation of the laws cited, i.e., failure to obtain consents and permits. Even if the proper consents and permits are acquired, Enbridg’e activities will have the same impact on the members’ proerty, and same will be perfectly lawful. Without a showing that the potential harm is “resulting from” the failure to obtain the consents and permits, POLAR has failed to allege special damages. Because POLAR has failed to allege special damages, it lacks standing to pursue the claims.
On the bright side, what this means is that Judge McMillen– not unlike the federal judge– did not rule on the substantive questions in the suit (ie, whether Enbridge is required to seek “local consent,” whether Enbridge is a “common carrier,” etc.). What’s more, Enbridge asked to have the suit dismissed “with prejudice,” which essentially would have meant that POLAR could not refile the suit. But McMillen chose to dismiss “without prejudice,” which means that her ruling was confined strictly to the procedural matter of standing. So the substantive questions live and could be raised again in a new filing.
So POLAR’s not finished yet. They are pursuing other legal avenues as well, including appeals of the MPSC rulings in both Phases 1 and 2, appeals that are still pending. We will do our best to keep you updated.
This morning, there’s a fine article by Lisa Song at Inside Climate News on the POLAR lawsuit. In it, our friend Jeff Axt is dead on the money:
“We want Enbridge to follow the existing laws,” said POLAR founder Jeff Axt, who owns property along the route. “These aren’t obstructions recently created to stop a pipeline. These are existing laws, regulations and ordinances that have been on township books for years, that need to be complied with before the project proceeds.”
Axt emphasized that the lawsuit is not about opposing a pipeline, but rather about forcing Enbridge to abide by local regulations. “I think we can all agree the existing laws and permits should all be followed, whether you’re building a pipeline, a house, a road, or a dog house.
What else needs to be said?
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.
This just in: Judge Cleland has finally ruled on the POLAR lawsuit and (we hate to be smug about it), it’s as just as we’ve been predicting to friends for a while: a mixed bag:
1. He ruled that POLAR does not have standing (not great news, but not a surprise);
2. He denied Enbridge’s motion to dismiss and instead remanded the case back to the state court (good news, in our view).
This ruling means that he did not have to rule one way or another on Brandon’s motion to intervene. Presumably, that will be filed in state court.
We’re in a rush. More tomorrow. But at least the suit lives on…
So preoccupied with other things (mainly, the PS Trust conference), we totally forgot to post an update on last week’s hearing in federal court. You may recall that the hearing was set to resolve the issue of whether POLAR has “standing” to sue Enbridge for noncompliance with municipal ordinances, state statutes, and the Michigan Constitution. It’s a tricky procedural question– but also what’s referred to as a “threshold” question. If POLAR can’t cross the threshold issue, they can’t enter the room where the more substantive questions– like local consent– reside (and can be addressed).
Just prior to the hearing, however, there was (in our view) a game changer: Brandon Township filed a motion to intervene in the lawsuit. This is important because there is no question at all as to whether Brandon Township has standing– a municipality most certainly has standing to sue to enforce its own ordinances.
We were unable to attend the hearing, but we’ve been debriefed and can tell you this much: Judge Cleland acknowledged the Brandon motion to intervene, but he hadn’t read it and so did not rule (on the question of whether to allow the intervention; we don’t see any reason why he would not allow it, but who knows?). The hearing on POLAR’s standing then proceeded.
According to all accounts from the POLAR side, the hearing went very well. POLAR attorney Bill Tomblin apparently did quite a bang up job, while Enbridge attorneys seemed a relatively ineffectual and bumbling. The POLAR team and its supporters left the hearing feeling reasonably optimistic and Judge Cleland said he would issue a ruling in a week. So we should know something more in the next few days.
We have no idea what will happen from here, but we’ll hazard a guess (based on our own observations and impressions): Judge Cleland doesn’t want this case in his court. He would prefer not to rule on it one way or the other, especially since the real substantive issues at stake are local and state, not federal, matters. So he’s looking for a reason to get it out of his courtroom. That could mean a dismissal (which could be bad for POLAR), but it could also mean– and this is what we’re predicting– kicking it back to Oakland County court, which in our view, could be quite good for POLAR. Please don’t hold us to any of that!
As we reported earlier this week, on Monday, the Brandon Township Board of Trustees passed a resolution to take whatever legal steps necessary to require Enbridge to seek local consent from municipalities before commencing construction. At that time, they left open the question of what specific action they would take.
Last night in closed session, the board discussed this matter. When they emerged, they unanimously approved a motion to intervene in the POLAR lawsuit. As we noted before, this action (we think) will effectively resolve the issue of standing that was the concern of Judge Cleland at last month’s hearing. Hopefully, that will mean that the substantive issues at stake– most importantly the issue of the force of the state constitution and the Highway Act– to finally be heard.
Congratulations once again to Supervisor Kathy Thurman for her unflinching leadership and to the other board members for their spine. This is extremely heartening news!