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Joseph L. Sax papers: 1943-2013
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Biography

"I don't care how good an attorney you are or how many degrees you have if you can't write those standards then don't pass the buck and vote on something that's emotionally acceptable and politically expedient in an election year because this is what the people want and they've been sold on this sue your neighbor bill.

(Comment by Senator in June, 1970 Senate debate on The Michigan Environmental Protection Act.)

"I plead with you to take this first step for posterity, mankind and our grandchildren -- give them a chance . . . I challenge you to pass the bill."

(comment by private citizen at May, 1970 hearing on the Michigan Environmental Protection Act.)

Joseph Lawrence Sax was a legal scholar who shaped environmental law in the United States by establishing the doctrine that natural resources are a public trust requiring protection.

Sax was born in Chicago, Illinois on February 3, 1936. He graduated from Harvard University in 1957, and the University of Chicago Law School in 1959. Sax was an attorney in Washington D.C. from 1959-1962. He left private practice to teach law at the University of Colorado (1962-1965), the University of Michigan (1966-1986), and the University of California, Berkeley School of Law (1986-2010). From 1994 to 1996, Sax served as Counselor to the Secretary of the Interior and as Deputy Assistant Secretary for Policy at the Department of the Interior under the Clinton Administration. He wrote extensively about environmental law issues and published five books.

Sax received numerous honors including the U.S. Environmental Protection Agency's Environmental Award, the Audubon Society's Conservationist of the Year Award, and the prestigious international Blue Planet Prize in 2007. Sax was a visiting professor at Stanford University, the University of Utah, and the University of Paris. He served as a consultant or board member of nineteen environmental public service organizations. Sax died of complications from a series of strokes on March 9, 2014.

_________________________

Source: Andrew Cohen, Professor and Environmental Law Pioneer Joseph Sax Dies at 78. University of California, Berkeley Law, http://www.law.berkeley.edu/16842.htm.

Beginnings

The history of the "Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970" (MEPA) documented in these files begins with work of Professor Joseph L. Sax of the University of Michigan Law School on the function of the private citizen in societal efforts to enhance and maintain environmental quality. Professor Sax in the 1960's was exploring means of promoting increased citizen participation and was in the process of authoring a book that summarized his thinking Defending the Environment, at the time he was approached by Mrs. Joan Wolfe of the West Michigan Environmental Action Council.

The Council had decided to use a small gift ($1000.00) for the development of legislation that would "give the citizen much greater rights to a livable environment". The specifics of the Council's plan and its requests were put in a letter to Professor Sax on January 28, 1969.

Mrs. Wolfe wrote:

"...unless you show us our error, these are the protections we request of any 'law for the environment'

  1. - that if it incorporates a committee approach to environmental problems, that committee not be merely advisory, unless further protection is built into the law. (mention was made of the right to sue.)
  2. - that the makeup of any environmental committee overwhelmingly represent the vast scientific-ecological-etc. knowledge.
  3. - that vested interests not be included in such a way that they could interfere with an excellent decision-making process ...

Sax's philosophy and theory of effective action to counter pollution differed in some ways from that of the Council." [1] While their objectives were similar, and while both were seeking ways to counter what they perceived as recent defeats for environmental interests in Michigan, Sax wished to avoid creation of another institution. In fact, the overriding principle in Defending the Environment and in much of Sax's thinking on environmental law and policy at the time was that organization-based responses to environmental challenges were doomed to the same failures that had created a need for legislative reform.

Selecting out those points in Mrs. Wolfe's request that indicated skepticism about advisory boards, Sax replied on February 4, 1969:

"The concerns expressed in your letter -- about creating a merely advisory body or one which might become the captive of certain groups with an interest in exploiting the environment are my concerns too, so we will have no disputes about that."

He continued in a spirit that is somewhat surprising in light of the subsequent political history of the MEPA:

" .... one must be politically realistic and not expect too much. Any reform bill will be subject to criticism and efforts at restriction by vested interest groups, both private and public...."

The Council had requested that Sax work on the project as a faculty member of the University of Michigan Law School. Sax responded that he was unable to act either as a representative of the Law School or the University for the Council but that he would be prepared to take on the task in a private capacity. That task -- one that resulted in a law that has been emulated in several states, has generated an immense literature on environmental law and organizational handling of environmental problems, and has been the basis for hundreds of civil suits -was performed in a relatively short time.

Sax drafted the original bill in 3-1/2 work days and sent it to an advisor to the Action Council on February 12, 1969. A return postcard expressed the advisor's pleasure with the draft. The note mentioned, perhaps for the last time by the Council, a "Board of Environmental Review -- for some functions not covered in the bill..."

Mrs. Wolfe added her praises of the draft on March 3, 1969, and the attitude toward litigation of the fledgling Michigan environmental movement moved from acceptance of its necessity as a supplemental activity to enthusiasm:

"It discourages me to think that we can only be protected by having the right to sue - yet I agree that there doesn't seem to be any other way. The fact that we might have that right then becomes terribly exciting and important!"

The original bill

The original bill that Sax wrote contained 7 sections. A summary of the original version is helpful to understanding events in the legislative history of MEPA, The first section stated the name of the Act, "The Natural Resource Conservation and Environmental Protection Act of 1969." Section 2 specified standing under the Statute and the cause of action. Standing was provided for the Attorney General of the State of Michigan, a city, village or town, or any citizen of the State of Michigan. An action for declaratory and equitable relief could be maintained under the new bill by this broad class of plaintiffs, "against any person, including any governmental instrumentality or agency, for the protection of the air, water and other natural resources of the state from pollution, impairment or destruction, or for the protection of the public trust in the natural resources of the state." Section 3 described the burden that the defendant would have once the plaintiff had made a prima facie case: "establishing that there is no feasible and prudent alternative and that the conduct, program or product at issue is consistent with and reasonably required for the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction." Section 4 addressed the appointment of a master or referee and the apportionment of costs for his services.

Section 5 in the original version of the bill was subdivided into 4 subsections. Its preliminary sentence specified the remedies available under the act: temporary and permanent equitable relief or the imposition of conditions. Subsection a addressed remitter, b, the court's power to grant relief when it had remitted an action; c, the retention of jurisdiction upon remitting the action; d, the power of the court to adjudicate the impact when consideration upon remitting had not been adequate. A relatively complicated subsection (section d(ii)) completed §-5:

"Where . . . judicial review thereof is available, the parties shall be remitted to the processes of such review as augmented by section 6 herein and upon the vesting of jurisdiction in any court of the State of Michigan, the court may thereupon dismiss any action brought hereunder without prejudice to the parties."

Section 6 addressed intervention by the Attorney General of the State of Michigan, a city, village or town, or any citizen of the State of Michigan. Subsection a stated that in the types of procedures addressed in the section, "the agency shall consider the alleged impairment, pollution or destruction of the public trust or air, water or other natural resources. ." Environmentally degrading activity was prohibited under the Act "so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." Subsection b provided that the court shall grant review of claims that an activity has or is reasonably likely to impair, pollute or destroy the public trust or the air, water or other natural resources of the state. The standards to be followed were those in the Act itself and those authorized by Act No. 197 of the Public Acts of 1952.

Section 7 covered situations arising when a plaintiff or intervenor had not intervened in an applicable non-judicial. proceeding; it indicated circumstances when the court could dismiss the action of the plaintiff or intervenor "with prejudice" for failing "willfully and inexcusably" to so intervene.

From Bill to Law: amendments adopted and proposed

One means of tracing the history of legislation is to compare the original version with the final enrolled bill or statute. While there were changes in the MEPA upon its being passed a year and a half after it was drafted, the basic structure of the bill, despite considerable activity to alter it remained intact.

The changes that did result included the following. The final statute is known as the "Thomas J. Anderson, Gordon Rockwell, Environmental Protection Act of 1970." The Act expands upon the class of possible plaintiffs in the original bill by specifying standing with broad categories, and it [§ 2(2)] describes the function of the court "where there is involved a standard for pollution or for an anti-pollution device or procedure."

The statute addresses venue: an action may be maintained in the Circuit Court having jurisdiction where the alleged violation occurred or is likely to occur. The final version drops the notion of bringing an action "in the name of the State of Michigan" and adds the provision of a surety bond, $500, in situations where "the court has reasonable ground to doubt the solvency of the plaintiff..." MEPA's language regarding the burden of the defendant when a prima facie case has been made differs from that in the original bill adding a sentence regarding "evidence to the contrary" and one specifying some procedural principles to apply to actions under the act. The law seems to separate out the notion of apportionment of costs from the provision of the original bill (section 4) relating to the appointment of a master or referee

MEPA [§ 4(2)] encompasses a different test for granting temporary relief in remitting an action, and indicates the section of Michigan law that will guide actions once remitted whereas the original bill does not. MEPA makes explicit that the court "may order that additional evidence be taken to the extent necessary to protect the rights recognized in this act." The final version of the bill provides that the court shall maintain jurisdiction where judicial review is available "as to any administrative, licensing or other proceeding."

The intervention provision in the MEPA (§ 5) is weaker than in Sax's original draft (§ 6). The doctrines of collateral estoppel and res judicata are added in the final version to prevent multiplicity of suits. Language relating to the public trust is altered as well. The enacted bill governs "the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction" as opposed to ways, of phrasing in the first form: the "public trust or air, water" and "public trust in the natural resources of the state." The final version eliminates language relating to the supplementary nature of the act and the standards to follow in judicial. review and procedures to apply when a party has failed to intervene. The date upon which the act will become effective, October 1, 1970, is added as is a statement that the act will have "immediate effect," and other minor changes are made.

Much of the controversy surrounding the Act is not reflected by this simple comparison of the bill with the final statute. Proposed amendments and attempts to add language that did not ultimately become part of the statute were numerous. Strong opposition to the concepts codified in MEPA was carried all the way through the legislative process to the Michigan Senate Debate on H.B. 3055 on June 26, 1970. A summary of that debate follows before a look at major events in the legislative history of the Act.

The Senate Debate

. . . it's like asking a carpenter to take out somebody's appendix . . . 11

(Comment by Senator in June, 1970 Senate debate on the Michigan Environmental Protection Act.)

A major question in the Senate debate was over the role of the judiciary: whether the powers H.B. 3055 proposed would effect a proper exercise of judicial authority. The first issue relating to this general concern addressed by the Senate was whether courts were technically qualified to make the determinations that the House bill empowered them to make. Senators Bowman (P. 7) [2] and Hubert (p. 35) voiced the opinion that courts lack the basic technical knowledge to rule on the types of issues likely to arise in MEPA actions. Decisions, they felt, would better be made by administrative agencies which they believed possess necessary expertise and experience. The Senate as a whole, however, concurred with the bill's underlying philosophy that the judiciary could competently perform the role required of it under H.B. 3055.

Related to this controversy was one that concerned a specific judicial power, the courts' ability under Sec. 2, subsection (2) (b) (of the statute) to direct the adoption of a standard approved and specified by a court when it found an agency-imposed standard to be deficient. Some Senators asserted that courts were being told to assume a rule-making function. Senator Gray stated that courts should have the right to determine the validity of the rules, but not the right to make the rules (p. 18).

An interpretation of this subsection offered by Senator Brown preceded the defeat of a proposed amendment to delete the subsection. Brown argued that the courts would not promulgate the standards themselves. The courts' function would be to force agencies to adopt standards that would comply with the public interest in a clean environment. Brown argued that the imposition of a court-ordered standard would have created difficulties in respect to the procedure that had to be followed (prior to the adoption of any new standard) under the Administrative Procedures Act of 1969. Brown's long and detailed explanation was highlighted by a convincing conclusion to a hypothetical case involving the Department of Agriculture:

"What it really amounts to is pressure on the agency at that point to bring the standard up to date, and we have no such pressure now. . . And I think the public, if they establish that doing the action complained about is in violation of the public trust and that the standard itself is invalid and unreasonable, they ought to have a lever to urge the agency, and I think that's about all they could do, urge the agency to come up with a standard. Now I don't know what happens if the agency refuses to act. I suppose the court at some point could hold the director of Agriculture in contempt. I don't think that's likely to happen."

The rights of plaintiffs and defendants under H.B. 3055 were also debated. The Senate addressed res judicata and collateral estoppel. While it was recognized that these two doctrines presumably would have been applied by the courts without explicit language in the bill (Brown, p. 2), the language was added to emphasize the legislature's concern about possible frivolous suits and to indicate to the courts that they should be sensitive to harassment.

The Senate acted to protect industry defendants from "harassment" by another device as well. An amendment was passed requiring a surety bond not to exceed $500.00 if the court had reasonable grounds to doubt a plaintiff's solvency or his ability to pay any judgment that might be rendered against him, The surety bond, as opposed to a personal bond, it was pointed out in the debate (pp. 21-22), requires that someone or some organization actually has the financial ability to back up the bond.

Senator Brown in the debate also delineated the difference between suits brought under H.B. 3055 and nuisance actions (p. 3): in common law nuisance actions, plaintiffs have standing only if they can show injury to themselves or their property. Under H.B. 3055, no such requirement is imposed.

Venue was discussed. Senator Mack (p. 3) feared that actions could be brought by plaintiffs anywhere in the state. Senator Brown replied that ordinary rules of venue would apply, that suits would have to be brought in the county where the alleged pollution or threatened pollution existed. The Senate then amended the act to make this clear.

Considerable discussion focused on the language of sec. 3 subsection (1) (final version) which reads in part that after, the plaintiff has made a prima facie showing that the defendant has, or is likely to, pollute, impair, or destroy the air, water, or other natural resource or the public trust therein, the defendant "may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety, and welfare." (emphasis added). The key word in the above phrase is the underlined "and".) Opponents of this language proposed that "or" be inserted in place of "and". This was intended to create alternative affirmative defenses rather than dual requirements for a single affirmative defense.

The change was proposed because of a fear that situations would arise in which an industry or a public service organization (such as a hospital or a power company) utilizing the best available technology, thereby satisfying the first requirement, would yet run afoul of the second requirement. It was hypothesized that the dual requirement would force a shutdown of the service or industry in these situations

Senator Brown asserted again that the courts would not be so rigid in their interpretation of this provision. He argued that the dual requirement would give courts flexibility in molding solutions to problems because they were allowed to look at whether

an activity was in the interest of public health, welfare, and safety as well as whether the best available technology was being employed. The "and" language was retained by the Senate, ending one of the longest and most forcefully contested disagreements in consideration of the "Sax bill."

Other Proposed Amendments

In addition to those debated by the full Senate, several. other weakening amendments were considered in the 15 months from the time that the bill was originally introduced by Representative Thomas Anderson until its passage. At one point in the process Representative Rohlfs moved to amend the bill: "section 2A. if the court has reasonable ground to doubt the solvency of the plaintiff or the plaintiff's ability to pay any cost or judgment which might be rendered against him in an action brought under this act the court may order the plaintiff to post bond to cover such cost or judgment". This amendment was defeated (roll call no. 332) by a vote of 28 to 57 in the House. Because of its open-ended form, it might have been a major inhibiting factor in bringing litigation -- especially for those plaintiffs whose resources were relatively limited.

Always controversial about the bill was the relationship of the remedies that the court could impose to existing standards, such as those that had been created by an administrative agency. An amendment by Representative Geerlings would have changed the bill as follows:

"Section 7. Where standards of pollution are provided by law, they shall form the basis for determining pollution under this _Act".

While on its face this amendment would not seem to greatly limit judicial power, the change was considered highly unfavorable by proponents of the legislation. It was precisely because of the inadequacy of existing standards that the coalition for the passage of the citizen environmental law suit had evolved. The amendment was defeated in the House by a vote of 38 to 62. (Roll Call no. 334).

The attempt to limit the bill's effectiveness to apply only to situations where pollution was considered "unreasonable" was made again and again. In fact, early on, "unreasonable" was added as a descriptor in every section of the bill preceding "pollution". It took an amendment to delete this word from the final version of the bill.

As the bill made its way through the Michigan Legislature, language limiting its effect came and went. One version, a substitute for the original house bill, would have added the phrase "considering all relevant surrounding circumstances and factors" following "feasible and prudent alternative," and in other sections of the bill. This language was not eliminated until the Second Substitute for H.B. 3055. [3]

From Bill to Law: major events in the legislative process

Another means of chronicling the legislative history of the Act is to describe the political events in its passage. A brief summary follows.

In Fall and Winter, 1969, with the Sax draft in hand, the Action Council began work on a strategy for introducing the bill into the Michigan legislature and for passage in substantially its original form. At first a Republican member of the House was approached to guide the bill. Because of the minority status of his party in the legislature he suggested an alternative sponsor. His advice and the advice of a Department of Natural Resources (DNR) commissioner whom the Action Council had contacted led to the selection of Democrat Thomas Anderson to steer MEPA through the Michigan House.

On April 1st, 1969 Anderson introduced the original bill. It was labeled H.B. 3055 and was referred to the House Committee on Conservation and Recreation. Soon thereafter the first official comment on the bill was made. On April 21st, 1969, the Attorney General, Frank Kelley, issued an analysis that raised the problem of spurious suits under the act and argued that court action would now be substituted for preferable informal administrative conferences. Whether this was actually the position of the Attorney General himself became a significant political question in later months, as Mr. Kelley was later to state that this memo or bill analysis was incorrect, that he always supported the type of legislation that MEPA represented.

Representative Anderson was not always confident, especially in the first months of its consideration, that MEPA would become law. In November, 1969, he wrote that the bill could not pass in its current form. In fact, Anderson made several comments early on that indicated he was skeptical about the wisdom of the enactment of the bill's original version.

Major activity in the State Legislature on the bill did not begin until 1970. January of that year saw the first set of commentaries on the Act, both official forms and in correspondence and memoranda to and from Representative Anderson and other members of the Michigan Legislature.

Public comment began on January 21st, 1970, in Lansing. On that day 31 people testified at a public hearing on the bill. Present were Professor Sax, representatives of the Audubon Society, the Michigan United Conservation Clubs, the Department of Natural Resources, the Pesticides Council, Detroit Edison, ENACT, the United Auto Workers, the Sierra Club, the Jaycees, the Wilderness Society, the Michigan Department of Agriculture, the PTA, and a variety of ad hoc environmental organizations. Many of these latter informal groups were represented by Mrs. Wolfe.

In what was later described by Representative Anderson as a 11complete explanation of the bill," Sax summarized the legislation and the rationale for its consideration. He spoke first of the "capture" of administrative agencies by the very interests that they were supposed to be regulating or managing. He argued that the Administrative Procedures Act was not enough to ensure the protection by the state bureaucracy of important natural resources, and he defended the notion of the private attorney general. Recognizing as probable, the assertion that a court was an improper institution for addressing environmental problems, Sax defended the ability of the courts to handle complex scientific and technical matters and explained the reason for putting the burden of discussing alternatives on the defendant. lie argued that the defendant should have considered alternatives already -- before acting in a way that jeopardized the natural environment. He discussed why the prima facie requirement was written as it was -- asserting that it would eliminate frivolous cases. In addition the allocation of costs under the act and the expense of litigation would discourage spurious litigation.

Professor William Pierce also of the University of Michigan Law School played an important role throughout the early months of 1970 by providing legal analysis supportive of the bill. Initially, he opposed the alternative to the use of citizen environmental lawsuits of creation of a 3-man environmental board. This was an idea discussed often and in several quarters in the late 1960's.

Other important events in the struggle for life of the MEPA occurred in January. The State Chamber of Commerce published a highly critical analysis of the bill while a favorable bill analysis was issued by the Department of Natural Resources. Government agencies in Lansing were not in agreement over the bill however. A member of the Air Pollution Control Commission, Richard A. Rasmussen, argued (in a letter) that the proposed act would duplicate the effort of the agency. He added that considerable competence existed in the state bureaucracy.

The first DNR analysis contended that frivolous lawsuits could be barred and that costs could be assessed against the plaintiff in MEPA litigation. It was in this evaluation by the DNR that the agency recommended that a prima facie determination that damage had occurred should be required before any "restrictive" or injunctive relief could be given. The agency proposed a master or a 3-man environmental review board either appointed by the governor or established by the legislature. DNR also suggested that the plaintiff be required to prove that he had exhausted all his administrative avenues of relief before bringing a lawsuit under the act.

An important analysis of the bill was made by Joseph Thibodeau, the Governor's legal advisor. Thibodeau, who was to play an active role throughout consideration of the bill, addressed several points in a memorandum of January 26, 1970. He argued that existing standards should control whether the agency has given adequate consideration to protection of the environment. Further he warned that it would be unwise for intervenors to be able to sit on their rights." "Pollution," "impairment," and "destruction," and other terms such as "reasonably likely" and "feasible and prudent alternative" needed to be more clearly defined in the bill. Thibodeau's analysis also discussed devices for preventing frivolous suits, clarification of the definition of prima facie in the bill and the shifting of the burden to the defendant, Importantly, the argument was also made that the exhaustion of administrative remedies doctrine should not be superseded by this legislation.

By the end of January considerable private industry sentiment on H.B. 3055 had been aired. Companies of all sizes began to petition the legislature with their worries about the bill. These varied from concern over the burden of proof to predictions of the overburdening of the judiciary. Also industry felt that a defendant who was in compliance with existing standards set by an agency and who was employing the best available technology should not be subject to citizen environmental lawsuits. Economic burdens on industry that the act might generate were also described. The Chamber of Commerce made many of these arguments throughout the bill's movement through the State legislature but the companies themselves expressed their views directly, as well. The Motor Wheel Corporation, the Abitibi Corporation, Detroit Edison, Park, Davis & Company, Consumers Power Company, and Chrysler Corporation were among those which submitted written comments to Anderson or other members of the House.

Not all support for the legislation came from the liberal coalition that later developed for passage. A University of Michigan Law School professor wrote that the act was desirable because it increased the ability of the middle-class to protect the environment in light of the local government administration's preoccupation with welfare concerns. Professor White also argued, in a letter to a Republican legislator, that no frivolous lawsuits or "half-baked" injunctions would result.

Representative Anderson in these early months of 1970 indicated that he was sensitive to the problem of the frivolous suit. He saw a need to protect those industries that had already been the subject of control or management by administrative agencies and those that were complying with existing standards. His concerns led him to seek from legal experts analyses addressing res judicata , vagueness in the Act's language, and exhaustion of administrative remedies. Anderson assured potential defendants that they would not be harassed by citizens. These efforts were not confined to the private sector; in a letter to the Director of the Department of Natural Resources he stated that the act would not be abused by citizens in litigation against the agency.

In February Senator Vander Laan suggested that suits should be reviewed or screened by the Attorney General, an idea that was to be mentioned often by opponents of direct citizen involvement, including government agencies such as the Water Resources Commission. It was in February as well that the first large public hearing on the bill was held.

A vocal group testified in Grand Rapids. Almost 500 people were in attendance. Comment on the legislation was mostly favorable although some negative analyses were made by members of the agricultural community. Represented were area colleges, the League of Women Voters, small groups such as the North Ottawa Road and Gun Club, the Western Michigan Chapter of the American Civil Liberties Union, the West Michigan Chapter of Trout Unlimited, the Michigan Division of the Izaak Walton League and the Save our Lakes Committee, Inc.

It was in February as well that a highly unfavorable analysis of the law in its original form was made by the Michigan Chamber of Commerce. The Chamber offered several arguments against the bill and proposed a number of changes. Among these were the requirement of a mechanism for a leave to commence a civil action-to be reviewed by the Attorney General. The Attorney General would then have the power to dismiss the complaint. In its extensive commentary the Chamber also made the following points: the plaintiff should have to prove that the defendant is not in compliance with an existing standard; if technology to control pollution does not exist the defendant should not be found in violation of the act; if no feasible or prudent alternative existed to the defendant's action, the suit should be dismissed; venue should be where the defendant resides or has his principal place of business; a security bond should be required; definitions of pollution, "impairment" and other terms used in the legislation should be refined; the qualifications of the master should be determined; administrative proceedings should be made mandatory for the plaintiff if they are available; and the standards as to a prima facie case should be specified. The Attorney General also expressed in late February (in a letter) his support for the principle encompassed in the bill but his continued concern for spurious suits.

In March more public hearings were held -- in Macomb County and in Ann Arbor. And interest groups began extensive campaigns for passage. The United Auto Workers encouraged large turnouts at public hearings. The union also reportedly found a way to "handle Kelley"--a reference to labor's ability to influence the Attorney General to support the legislation. Increasing interest in the bill -was evidenced by the fact that by mid-month Anderson had received over 3000 letters in support of the act.

The Department of Natural Resources issued another analysis of the bill. Its only suggestion now was that a technically qualified person should aver an actual threat to the environment before litigation could take place. The DNR position continued to be at odds with that of the State Department of Public Health, Michigan Air Pollution Control Commission. The latter agency feared "excess" litigation and argued that the bill ignored the doctrine of separation of powers and enabled courts to act not only in a judicial but in executive and legislative capacities as well. After arguing for agency superiority in resolving environmental problems, the health agency advocated an amendment that would make acceptance of a suit discretionary with a court and would have the plaintiff first exhaust all administrative remedies. The State Chamber of Commerce continued to suggest amendments. So, too, did the Water Resources Commission whose position on the bill was never as favorable as its counterpart, the Department of Natural Resources.

Events in March were highly favorable to passage of the act. The Governor announced before 12,000 people at an environmental teach-in at the University of Michigan that he would support the act if certain "alterations" were made. The Attorney General now argued that his 1969 memo opposing the bill was in error. As well after the public hearing in Macomb County with a light turnout (only 33 persons testified and opposition was expressed--primarily by the mushroom growers and big farmers) a pro-MEPA crowd dominated a hearing in Wyoming, Michigan. On March 26th, 2-1/2 hours of testimony were heard by the House Conservation and Recreation Committee. Attending were Senator Levin, Representative Vander Laan, Joan Wolfe and over 400 citizens. The following day Senator Levin attacked Governor Milliken alleging that the Governor did not fully support the legislation. Levin announced that he was introducing with Senator Bursley a bill identical to H.B. 3055 in the Senate. Soon thereafter the Governor announced that he did not only "endorse and support" the bill but that he would "actively work for" its passage.

Despite this political support, on March 25th, an analysis by Joseph Thibodeau was made a substitute bill to H.B. 3055 in the House Committee on Conservation and Recreation. The bill was reported out of committee with the recommendation that it pass. This motion carried 11-1. (It was at this point that Representative Goemaere made a motion to name the bill the Anderson Environmental Protection Act. This motion also carried by a vote of 11-1.) The substitute was taken from a Thibodeau memorandum of I-larch 18th, 1970 to Representatives Anderson and Goemaere. The Governor's legal adviser argued at great length for the elimination of the provision that suit be brought in the name of the state, for circumscribing agency power under the Act, against the public trust language, for greater specificity as to the defenses of feasible and prudent alternative, for the addition of the descriptive adjective "appropriate" before "temporary relief", for a venue provision and for several other changes-ranging from impleader rights to constitutional challenges.

The analysis did not go unanswered by Professor Sax. In a long memorandum by him, Professor Pierce and Mr. Irvin entitled "Thoughts on H.B. 3055" Sax soon addressed several concerns in the Thibodeau memorandum. Sax noted that exhaustion of administrative

remedies was not only not necessary but in many times futile. He explained the existence of the language on "feasible and prudent alternatives". Sax's memorandum spelled out the meaning of the public trust and argued again that the courts were quite capable of handling the types of complex issues that would arise under the MEPA. Sax and his colleagues also noted that the language "in the name of the State" had been included to assure the court that it was entertaining a case or controversy. Furthermore, the right of individual government agencies to sue one another was essential according to the rebuttal. These "Thoughts" also addressed other procedural provisions in the MEPA and emphasized the flexibility of a common law approach to the protection of natural resources. (Emphasizing common law was not surprising in light of Sax's understanding of the changes that MEPA would create. Later (June 1970) Sax described the MEPA in a letter to the press as "analogous to the creation of the right of privacy. . ."[4])

These memoranda, extensive analyses by private citizens and several Michigan attorneys and law professors were among the high lights of the legal treatment of the Act. While some commentators have pointed out that the MEPA's passage was primarily a political result, considerably detailed and generally high quality legal

Not all groups thought that the bill was strong enough in any form considered. Testimony by the United Auto Workers, in fact, advocated an act with fewer obstacles to citizen action. Specifically, the union argued that the cost apportionment provision of the statute might be an excessive burden on plaintiffs, inhibiting litigation.

April was a month both of compromise and of intense struggle over amendments. Early in the month Sax wrote in a letter that he found "cleaning up amendments" acceptable in order to gain the full support of the Governor. Other positive news for proponents of the act included another analysis by the Department of Natural Resources--now unequivocally supporting the legislation. The DNR position was crucial because the department was understood to be a potential defendant in cases brought under the statute. It was in mid-April as well that the Governor wrote to the Environmental. Action Council indicating that he shared fully its interest in passage of the legislation.

Nonetheless, the movement toward passage of a strong citizen suit law suffered several setbacks in April. Representative Ford noted the possibility of industry being driven from the state by the existence of the legislation, and other elected officials articulated possible problems with the law. Late an amendment to remove the descriptive adjective "unreasonable" from the bill. This term had been added in an amendment and while some argued that its import was not great, others felt that restricting liability to actions that were "unreasonable" was a strong limiting factor on the statute.

The language came from the earlier Thibodeau analysis that recommended insertion of the word "unreasonable" before the phrase "pollution, impairment or destruction" wherever it appeared in the bill. When first considered in late March the vote to remove this modifier from the bill fell just two votes short. It was not until April 27 that the amendment deleting "unreasonable" and "unreasonably" was passed by securing 56 votes, exactly the number needed for passage. Five Republicans, T. Brown, Kok (who had been originally approached to introduce the bill), Sackett, Sneekens, and Varnun, joined with Democrats to produce this victory for proponents of the act, All Democrats voted for the bill. It was in this same session that the legislation passed in the house by a resounding 98-3 vote. [5]

Two protests that followed indicate in some detail the concerns of the opposition. Representative Swallow declared:

While I subscribe to this bill in principle, I voted no so I might afford myself the opportunity to protest the removal from the bill the word "unreasonable". . . I see in my own community a possible effect of this bill that could terminate the employment of 500 persons. I believe that the court, in administering this bill, should be provided some latitude so as to permit a reasonable degree of tolerable pollution. . .

Representative Allen made an argument for an alternative approach to pollution control:

I voted against House Bill No. 3055 because I firmly believe it is a step in the wrong direction in the battle against pollution. In my opinion the fight will require professionals such as biologists, chemists, engineers and ecologists . . . it seems to me inappropriate to expect the judiciary to determine the tolerance levels. Every citizen in Michigan fully aware of his day's activities and with a thorough knowledge of the law should be able to go to bed at night fairly certain whether that day's activities may tomorrow land him in court charged and later convicted of a serious breach of law. Ladies and gentlemen, if H.B. 3055 becomes law, no Michigan citizen in the future can go to bed with such a feeling of security.

The forum for consideration of MEPA then moved to the Michigan Senate. Here also the debate was emotional and vigorously fought. In the Senate Conservation Committee's public hearing on May 12th? the concerns of the proponents were argued forcefully (the major opponents of the bill were not present). Keynote testimony was presented by AFL-CIO President and DNR Commissioner August Scholle. He stated: "I plead with you to take this first step for posterity, mankind and our grandchildren--give them a chance." Doctor Paul Herbert, a retired Michigan State University Professor, testified with a heart pill in his hand: "As I listen to you talk here I thought I was coming down with a second heart attack. I challenge you to pass the bill. If something is wrong you know industry is going to scream and you'll come back and correct it next year." Senator Harvey Lodge, a Republican, retorted by charging that Michigan's 8 million residents were responsible for pollution--a theme he repeated several times in exchanges with members of the audience.

Opponents of the MEPA in its existing form presented their major challenge in the Senate Conservation and Tourist Industry Committee on the following day. The State Chamber of Commerce described language in the bill as vague and indefinite, challenged the absence of specific standards, and requested that the word $'unreasonable" be reintroduced into the bill. The Michigan Manufacturers' Association argued for a security bond of $3000. This group also advocated that no temporary relief be allowed until a prima facie case was established and argued that the affirmative defenses noted in the bill should be made in the alternative-substituting "or" for "and" in Section 3(l). The Association, speaking through Dwight Vincent, suggested strongly that a better approach to environmental protection is through administrative regulation. Vincent favored the establishment of a "comprehensive ecology program" through a Department of Life and Ecology.

A flurry of activity followed the Senate Conservation and Tourist Committee hearing. Representative Anderson sent out a mailing to 5000 correspondents who had expressed interest in the bill. He requested that they contact their Senators to urge favorable attention to TMEPA. The League of Women Voters announced its support for the legislation. The Farm Bureau wrote an unfavorable bill analysis. The Governor by this time expressed his willingness to "push the bill". He indicated that he thought that chances for enactment might improve if the bill were added to another bill strengthening the Water Resources Commission and the Air Pollution Control Commission. The State Chamber carried out a widespread mailing leveling several objections to the House language. The Chamber described the movement toward passage: "Accelerated pressures and dramatized hysteria created by the neo-politics of later hour dilettante earth savers." Not all business interests opposed the bill. A construction company wrote (to Representative Anderson) that it opposed the State Chamber position and that business could live with the Act.

It was June, 1970. Early in the month the Senate acted to critically weaken the act. Yet by the end of June it had passed the bill in an unscathed form which was immediately acceptable to the House and which became the Michigan Environmental Protection Act.

The earlier activity by the Senate came in the Senate Conservation Committee on June 4th. Here the controversial amendment changing the word "and" to "or" was accepted, (The bond was also increased to $500). on the 11th of June, the Senate Conservation and Tourist Industry Committee reported out a bill with a provision for an increased security bond and with a strong statement regarding review of existing standards. In the two weeks between this activity and the final Senate vote several editorials for and against the Act were aired on local stations.[6] Meanwhile a coalition backing the strong version of the Act was assembled, and environmentalists went to Lansing to picket on the Capitol lawn in its support. Representatives Anderson and Goemaere and State Senators George Fitzgerald (the Democratic Senate leader), John McCauley and Roger Craig addressed the crowd. Senator Levin expressed his determination to fight off all weakening amendments to the Act including the alternative defense ("and" to "or") and the insertion of the word "unreasonable" (before every instance of the words "pollution, impairment or destruction").

Final Events

Favorable consideration came in the Senate on the 26th of June. There the debate addressed many of the questions that had been raised by interest groups for the last year and half (summarized earlier in this history). The Senate passed a relatively uncompromised version by a vote of 34-3 and sent it to the House for consideration of 7 amendments. The most important of these spelled out collateral estoppel and res judicata and raised the security bond to $500. Votes against the bill were registered by Senators Hungerford, who expressed concern. about absence of due process under the legislation; Lockwood who adopted the 1969 Attorney General opposition to the bill; and Huber, who considered the MEPA an improper solution to important environmental problems. The Governor immediately commended the Senate for its activity and urged speedy House concurrence in it.

The House could not work with more speed. It approved the Senate amendments by a vote of 79-2 within minutes after receiving the Senate version and sent the bill to Governor Milliken. In fact Rule 59 (that a bill lie over 1 day upon receipt by the other Chamber) was suspended.

Ironically, Representative Goemaere voted against the bill. He attacked the addition of Senator Rockwell's name to the official style of the law. Senator Hungerford's first "no" vote as a Senator was more substantive:

It is my belief that if every individual is permitted to file for damages, every do-gooder, kook, psychopath or malcontent will file so many actions that our already over-burdened judicial system will be in danger of breaking down.

Governor Milliken again commended the legislature and stated that there will now be "no privileged sanctuaries for polluters in Michigan". He indicated that he would sign the bill.

On July 14th, 1970 MEPA was presented to the Governor. The "Thomas J. Anderson, Gordon Rockwell., Environmental Protection Act of 1970" was signed on July 27, 1970, to take immediate effect. A new chapter of Michigan law had begun.

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Notes

1 -- The Council's position may have been influenced by knowledge of a model for environmental protection encompassed in a California bill that would create a California Environmental Study Council. Dr. Harold "Ted" Black of the Michigan Department of Natural Resources had sent Mrs. Wolfe a copy of the bill on January 8, 1969.

2 -- Page numbers refer to unofficial transcript of debate in box 2, file 3, transcribed Mrs. Margaret White, Summer, 1980.

3 -- Other recommendations for changes appear in the collection in Box 1 ("Versions of the Michigan Environmental Protection Act") and some are discussed in detail in the following section.

4 -- The building blocks for the MEPA are summarized in an early hand-written note found in the Bentley Papers. On these sheets Professor Sax jotted down the pieces that would combine in the Michigan Act. His notes addressed the powers of the Water Resources Commission; mentioned qui tam actions, defined prima facie, recognized the existence of feasible and prudent alternative 1anguage in other legislation, noted the existence of wildlife preserves in New Jersey, and anticipated some common questions in suits brought by neighbors against neighbors. The scribbled ideas also recognized the existence of anti-trust triple damages law. But damages were never considered remedies under the Michigan Environmental Protection Act. Analysis was offered through consideration of the bill.

5 -- Earlier in April a 78-21 vote had adopted the amendment requiring a $300 bond. It was at that time that the House rejected another crippling change in the MEPA. By a vote of 62-38 an amendment was rejected that stated that where "standards of pollution are provided by law, they shall form the basis of determining pollution under this act."

6 -- Newspaper coverage of consideration of the bill was extensive and scored the adversarial nature of the passage of MEPA. Part of MEPA's history is told in the headlines of the time. (Box 1, files 23-23)

  1. "Man Faces Extinction; Dingell".
  2. "Defending the Environment" (Sunday Magazine)
  3. "Pollution Fighters Rally for Bill"
  4. "Hope for Citizens to Fight Pollution" (Free Press)
  5. "State Politicians Jump to Join Pollution Fight" (Free Press)