Mayor of Lansing v. Public Service Commission

470 Mich 154 MAYOR CITY OF THE OF v PUBLIC LANSING

SERVICE COMMISSION (Calendar 10). 12, Argued No. Docket 124136. November No. Decided June 2004. Company Pipe application Wolverine Line filed an with the Public longi- pipeline Service for the Commission construction of a (psc) tudinally right-of-way adjacent highway, in the to an interstate city partially Lansing. city mayor, Lansing, within the its Ingham County an application and Commissioner intervened. The city, did not include consent of and the the the PSC the authorized by project. appeal mayor, city, commissioner, On the and the the Appeals, EJ., JJ., Court the and and Sawyer Talbot, O’Connell, required determined that MCL 247.183 that Wolverine obtain construction, sought local consent before but before it PSC (2003). approval. App parties All on both sides appealed, city application the and officialson the basis that the process contrary consent, was to law without local and Wolverine approval or, required and PSC on the that basis no local was if was, application it process could be obtained after the and approval, but before construction. opinion joined In an Justice Chief Justice by Taylor, Young Supreme and Justices Court Corrigan, Markman, held: require Pipe Company MCL 247.183 does Wolverine Line beginning local obtain consent before the construction of its project right-of-way highway within the of the interstate where city Lansing, require is within the but does not appli- consent be submitted time at the of Wolverine’s cation psc. majority part Justice Weaver concurred with the in all but v of opinion. its Affirmed. joined by dissenting, Justice Justice stated Cavanagh, Kelly, majority ignored Legislature, true intent as by reviewing determined the statute it has been enacted and years legislative history. amended over the v may say ambiguous. 2 adds It subsection MCL 247.183 is imposed by

requirements 1. There is also a to those subsection 2 of argument that 1 and MCL 247.183 subsections reasonable entities, only applying apply to different ambiguity, Because of in 23 CFR 645.105. utilities defined judicial appropriate. construction is process special Legislature intended a for feder- The to create ally pipelines longitudinally defined utilities wish to construct rights-of-way. highway The of within access amendments limited generally changed Michigan did not the from a state obtaining permit rights-of-way use the without a allow entities to rights-of-way long as to a allows construction in the state that amendatory If state federal standards are followed. the and language process of intended to the construction were ease deny rights-of-way, removing power to the the state’s access grant power certainly to local could not have been meant to cumbersome, perhaps making impossible, to it more and entities highway rights-of-way. limited Given construct within access legislative history, Legislature could not intended to have subject federally public require- defined utilities to consent ments. Highways — — — Pipelines Limited

Public Utilities Petroleum Access —Approval of Com- Consent Local Governments Public Service of mission. governmental units of affected local must be obtained consent pipeline company may petroleum before a commence construction adjacent longitudinally right-of-way pipeline to a limited of in the highway, need not be obtained before access but consent (MCL sought approval by the Public Commission Service 460.17601). AC, 247.183; R Ross), PC. Massaron Cooney, (by Mary Plunkett & D. James Attorney (by and of City Office Jr., Vroman, Smiertka, Margaret M. Roberts E. John Bevez) and Brian city Lansing the Mayor for of W. Lansing. the city and PLLC Ernst and

Dykema (by Albert Christine Gossett Soneral) (Paul O’Konski, counsel) Mason for Line Pipe Company. Wolverine 470 Mich 154 Court Cox, General, Michael A. Thomas L. Attorney Casey, General, A. Solicitor David Michael A. Voges, Nickerson, Derengoski, and William W. Assistant Attor- neys General, for the Service Public Commission. Amicus Curiae:

Miller, Stone, Canfield, (by Paddock P.L.C. Dean Altohelli), M. the Michigan Municipal League. case, J. In this we called on determine TAYLOR, (Wolverine) if defendant Wolverine Line Pipe Company permission must obtain the of the city Lansing before constructing gas longitudinally pipeline right- of-way adjacent an when part interstate pipeline city would be constructed within limits. We affirm Court of Appeals decision Wolverine obtain must local consent but that such consent need be application obtained before the is submitted to the Michigan Public Service Commission (PSC).

i Wolverine is an interstate common carrier that con- structs, operates, and maintains for pipelines used transporting petroleum It products. planned to con- twenty-six-mile struct a liquid petroleum pipeline along (1-96) corridor, the Interstate-96 within the right-of- way of the highway. Although interstate the is land the jurisdiction under control and Depart- of the state’s ment of Transportation, several miles of the city within the limits. 2001, Wolverine,

In December commencing before work any project, on the filed an application with the for The approval plan. mayor its and the city, as PSC well as Ingham County Dedden, Commissioner Lisa v PSC Opinion of the Court The PSC proceeding.1 intervene in the allowed to were a treated a contested case as application was city appli- The moved to dismiss the hearing was held. cation, jurisdiction the PSC had no because arguing that requisite the consent lacked application Wolverine’s PSC denied the motion and authorized city. from the The consent was not finding city’s project, regard With to required accompany application. the PSC determined project, the reasonableness in the equal there no violations protection were necessary and project selection and found the route safe. Court city Appeals. to the The appealed Court language of MCL 247.183 and deter- plain

reviewed the did local before require mined the statute consent applicant sought began, construction but before (2003). 1,16; 666 App 257 Mich NW2d 298 approval. PSC leave to sought appeal. Both sides Wolverine city is and the approval required, asserted that no argued required during application approval appeal on stage. granted This Court leave both (2003). applications.

II construc- question statutory We review de novo construing statute, required give tion. In we are That clear if Legislature’s effect to the intent. intent is statutory language unambiguous, and the statute then Weakland v Toledo must be enforced written. Co, 344, 347; Mich 656 NW2d 175 Engineering (2003). We the same rules of construction both use regulations. & Soap and for administrative statutes similarity interests, parties of three will be Because of the these city.” referred to as “the Opinion of the Court Ass’n v Detergent Comm, Natural Resources Mich (1982). 728, 756-757; 330 NW2d 346 hi The 247.183, statute that controls this case is MCL which reads:

(1) Telegraph, power, telephone, public utility other and companies, municipalities companies, cable television and construct, may upon, telegraph, enter and maintain tele- power lines, cables, phone, pipe lines, wires, poles, or conduits, upon, over,across, sewers or similar structures or any road, public bridge, street, public place, under or including, subject (2), longitudinally to subsection within highway rights way, limited access and across or under any state, necessary of waters in this all erections purpose. telegraph, telephone, and fixtures for that A power, public utility company, and other cable television company, municipality, any and before work commenced, governing shall obtain the first consent of the body city, village, township or through along poles these which lines and be constructed and maintained. 645.105(m) utility A may as defined in 23 C.F.R. upon, construct,

enter and maintain lines and struc- longitudinally rights tures highway within limited access way approved in accordance with standards the state transportation governing commission that conform to fed- regulations. eral and require laws The standards shall underground the lines structures be placed and be in a highway manner that will not increase maintenance costs transportation department. for the state The standards may provide imposition charge for the of a reasonable longitudinal use of rights way. limited access imposition charge governmental of a reasonable is a function, portion offsetting capital and mainte- expense highway, nance of the limited access is not a proprietary charge function. The shall be calculated to permit reflect a 1-time installation fee that shall not exceed 159 v Court longitudinal limited access $1,000.00 per use of mile of $5,000.00 per rights way minimum fee of highway with a be under this shall All revenue received subsection permit. expenses for capital incurred for and maintenance used highways. access limited it is both dispute does here a

Wolverine 1 of as is used in subsection phrase “public utility,” as defined statute, “utility a 2 as well as subsection subsections Definitionally, C.F.R both 645.105[.]”2 in 23 in something to unless Wolverine applicable are one from the reach of sub- excludes Wolverine argues that such exclu- or the other. Wolverine section which, para- language is found subsection sionary including utility, covered those any states that phrased, longitu- 2, may public use road subject to subsection highway right-of-way the limited access dinally within work commences. The permission if it has local before passage construction of this company’s to remove utilities phrase serves quoted and thus utilities must from subsection rules such 2. with the of subsection In only comply requirements this, primarily contends that this support Wolverine construction other- reading only proper because (2)” language “subject to subsection would be wise meaning. left without Because such constructions avoided, and its reading be because Wolverine believes phrase meaning, urges adopt us to gives includes This publicly, line, facility system privately, cooperatively or owned or communications, producing, transmitting, distributing cable or heat, television, power, electricity, light, gas, oil, products, crude water, steam, waste, storm water not connected with drainage, any commodity, including any or fire or other similar system, directly public. police signal indirectly serves the which utility company mean the inclusive of The term shall also wholly subsidiary. any 645.105.] [23 owned or controlled CFR

Opinion of the Court so, decline to did reading.3 Appeals We do the Court us, urged before think the reading because we city accurately and more gives meaning also reflects the statute.

We note that Random House College Webster’s Dic (2001 ed), tionary “subject” used defines when as an adjective six ways. applicable The most is the fourth to): (usu. definition, “dependent upon fol. something ” His is subject your approval. consent definition, This gives in essence, “subject” to the meaning, word the “dependent upon.” When as it and in used is here other places Legislature’s work, in the it is clear that the see, together,4 15.443, subsections work e.g., MCL 18.1237, is, and 168.677. That both are subsections applicable because the relevant words in 1, subsection the to” “subject words, not the do mean that require ments of 1 apply subsection do not to those utilities that are by covered also 2. Further, subsection because the (and Legislature expressly uniquely) the used word suggests ways Wolverine also several in which the statute could have clearly impose been worded to indicate an intent to both subsections on longitudinal projects. posits Wolverine that because the statute is not ways suggests, Legislature worded in one it it the follows that only impose requirements longitudinal intended to the of subsection 2 on projects. argument unconvincing because, Legislature This the while doubtlessly statute, have made could its intentions clearer in this the fact by adopting any suggested that it done has not so of Wolverine’s approaches giving meaning actually not does reheve this Court of what to was written. 4 Moreover, if one even were inclined to utilize one other five (“under dictionary domination, control, definitions in the or influence something by “being dominion, rule, [often fol. under the or to]”: authority sovereign, state, by “open exposed [often of a fol. etc. or to]”: by subject [usu. “being necessity fol. to]: under the ridicule”: undergoing something beings to]: subject [usu. fol. Ml death”: “hable, prone subject headaches”), fol. [usu. to]: also these lead to “dependent upon” yields: interaction, the same conclusion disconnection, rather than of the subsections is called for. Court “subject phrase, implica- to” “including” before the stronger the two are to be even subsections tion is Thus, subsection 1 means in combination. read and, local go approval cannot forward without project go 2 means it cannot incompatibly, at all subsection standards. unless meets certain construction forward indeed, forcefully ar- aware, and, Wolverine areWe may facilitate reading gues, from potentially crippling frivolous and resistance of a Such along project. the route governments however, the role of the argument, misunderstands an task, Constitution, impor- Our is the courts. under tant, yet limited, duty interpret to read and what but made Legislature actually has the law. We have in the many past Legislature times that our observed that, policy especially make in controver- free to choices matters, un- inevitably some will think sial observers law, dispute however, This over the wisdom of a wise. people’s warrant to a court to overrule the give cannot Michigan See Oakland Co Rd Comm’rs v Legislature. Ass’n, 612-613; & Cas Mich Prop Guaranty (1998). therefore affirm the Court of 575 NW2d We Appeals decision that subsection as well as required and MCL 247.183 control Wolverine is longi- consent get constructing pipeline before its tudinally of 1-96. right-of-way

rv is to obtain required Because we find that Wolverine for we address project, local consent its must also of when consent must obtained. The question be only that local has to be Appeals Court of found consent Thus, at the before work is commenced. time secured 470 Mich 154 Opinion of the Court the permit from the sought, proof was of local did consent not need to accompany application. We agree with holding. begin analysis

We our with the statute that unam- biguously requires local any consent “before of this work is commenced....” MCL 247.183. We note also applicable rule, AC, R PSC’s 460.17601(2) (d), indicates that applications for new construction of utility facilities forth, “shall set or by show, attached exhibits ... municipality [t]he from appropriate which the franchise or consent has been obtained, if required, together with a true copy of the franchise or consent.”5 only PSC rule requires utilities to provide proof of

local consent if such is required to be obtained at the AC, entirety: R 460.17601 reads in its entity An application listed in this subrule shall file an necessary authority

the commission following: for to do the (a) gas A meaning provisions or electric within the of the 1929, amended, Act No. 69 of the being Public Acts of as §460.501 seq. Michigan Laws, Compiled et of the that wants to plant, equipment, property, facility construct a furnishing or for public utility public service for which a certificate of convenience necessity required by is statute. (b) gas pipeline company A natural meaning within the of the provisions of Act amended, No. 9 of the Public Acts of being seq. §483.101 Michigan Laws, et Compiled of the that wants plant, equipment, property, facility construct furnishing or public utility public service for which a certificate of convenience necessity required by statute. (c) corporation, association, A person conducting pipeline or oil operations meaning provisions within the of the of Act No. 16 of 1929, being §483.1 the Public seq. Michigan Acts of et Laws, Compiled transport wants construct facilities to petroleum any petroleum crude oil or products crude oil or as a approval required by common carrier for which statute. v PSC Opinion op the Court made, and the here does the application time PSC and the with Thus, agree it. we the require not need not be of local consent Appeals proof Court project. Although the for this application filed with application, not the the statute was filed with consent and the complied the rules been with have authority. well within its proceeded dissent, following offer obser- Concerning we vations:

(1) necessarily justices majority The in this do 247.183, that MCL as we with the dissent disagree here, Post at 185. may it be “cumbersome.” construe majority Nor, by opinion, any justice does in this (1) application required in rule shall set The subrule of this forth, show, following all of the informa- or attached exhibits tion:

(a) applicant. The name and address of (b) city, township village, affected. The or (c) The nature of the service to be furnished. (d) municipality appropriate franchise or from which obtained, together required, copy been if a true consent has or the franchise consent. (e) proposed description A full construction or new extension, including the maimer in which will be constructed. (f) rendering type The names of of service all utilities same likely proposed with which the new construction extension compete. (3) utility respondent pursuant A as a to the is classified may party participate provisions of R as a 460.17101 filing petition application proceeding It without to intervene. may response application. file an answer or other 470 Mich 154 Opinion of the Court that, suggest they had Legislature, they been would have cast a vote in of support MCL 247.183 as it interpreted is here. justices Nor in this majority practical oblivious to the difficulties that our interpre- tation of the law may impose upon utilities such as Wolverine Line Pipe Rather, Company. what we decide today merely is the language of MCL 247.183 compels result, a particular justices and the of this majority do not believe empowered themselves to reach different result substituting their policy own preferences for those of the Legislature.

(2) Rather than interpreting language of MCL 247.183, prefers the dissent to divine what it character- Legislature’s izes as the “true intent.” Post at 173. This “true intent” is one to be gleaned from the words actually enacted into law the Legislature, but through reliance on various random facts and circum- stances that the dissent selectively picks out from the potentially universe of available facts and circum- contrast, stances. In rather than engaging legislative mind-reading to discern the “true law, intent” of the we believe that the best measure of Legislature’s intent is simply the words that it has chosen to enact into law. Among salutary other consequences, approach reading the law allows a court to assess not merely the intentions of one or highlighted two members of the Legislature, but the intentions of the Legislature. entire

(3) The dissent avoids the difficult task of having to read the actual language of the law and determine its best interpretation by peremptorily concluding that MCL 247.183 “ambiguous.” is at Post 174. A finding of ambiguity, course, enables an appellate judge to bypass traditional approaches to interpretation and “ ” either substitute presumptive of policy,’ ‘rule[s] see Klapp Ins, 459, United 474; Mich 663 NW2d 447 v the Court (rev ed, 1998), Corbin, Contracts (2003), quoting largely subjective in a 24.27, engage or else to p § history.” reading “legislative perambulatory and the treatises of both However, relying on Klapp, concluded, finding ambiguity Williston, Corbin conventional after “all other only to be reached applied have been interpretation” means of [ ] major- at 474. Where wanting.6 Klapp, supra found rules and concludes ity these conventional applies under- reasonably can be language of MCL 247.183 dissent, demonstrating the flaws of stood, the without that its majority’s analysis except opinion assert Legisla- intent” of the not in accord with the “true analysis, An ture, “ambiguity” that an exists. opines dissent, that is conflict with such as predicated of the law and on some language actual necessarily “true intent” is a result-oriented supposed at all. words, legal analysis In other it is not a analysis. that MCL reaching In its conclusion peremptorily entirely the dissent misstates “ambiguous,” 247.183 is ambiguity. The dissent discerning the standard for “ambiguity” by courts findings would hasten on the basis of whether predicating findings these meaning regarding” “reasonable minds can differ in the context of the Especially a statute. Post at 174. considered types of cases and controversies the most parties Court—those in which the have been by the persistent, persuaded determined and the most is extraor- respective arguments—it merits of their own reasonable minds dinarily difficult to conclude not, outcome. That is cannot differ on the correct interpretation case Klapp and the instant While concerned contract Klapp, supra statutory interpretation, at 474—that the rule stated finding resort—applies equal ambiguity force whether a of last is statutory interpreting one. is a text or a contractual court 470 Mich 154 Opinion of the Court been, has never the standard either for resolving cases or for ascertaining ambiguity existence of an in the law. The ambiguous law is not whenever a dissenting (and reasonable) presumably justice interpret would such in a contrary majority. law manner to a aWhere majority thing finds the law to mean one and a dis- another, senter finds it to mean may neither have concluded that the “ambiguous,” law is and their dis- agreement by itself does transform that which is unambiguous Rather, into that which is ambiguous. a provision of the ambiguous only law is if it “irreconcil- ably with another provision, conflict[s]” id. at when it equally susceptible than single more meaning. In lieu of the approach traditional to discern- ing “ambiguity”—one in only provisions which a few truly ambiguous and which a diligent application interpretation rules of normally yield will “better,” perhaps imperfect, albeit interpretation of the law—the judicial dissent would create a regime in quick which courts would be ambiguity to declare quick therefore resolve cases and controversies on something basis of other than the words of the law.7 Moreover, the dissent implies the decision of the Supreme United States Court in YellowTransportation, Inc, v 36; 371; 537 US L Michigan, 123 S Ct 154 Ed 2d (2002), should be read to compel adoption of his view of how we if determine a statute is ambiguous. We believe this a misreading of Yellow Transportation. The United States Supreme Court established no rule in Yellow Transportation determining or resolving confusingly unambiguousness The clarity. dissent also conflates and Instead, great many unambiguous provisions Post at 176. a of the law are interpretative process quite difficult, strug far from clear. The is often gling great provision to remove a deal of textual A underbrush. of law unambiguous may merely meaning, that is well be one that has a better opposed meaning. to a clear Lansing Mayor

Opinion of the Court had Moreover, even if the Court statutory ambiguity. if a it chooses to use to determine fixed a method upon to have it could not be understood ambiguous, statute is in may use a like the rules that state courts superceded courts, of whatever undertaking. The United States rule, always respectfully are of course sort, they when are judges holdings but such reviewed state court as, range narrow of cases such only binding in a meaning in and classically, the construction Statutory construction United States Constitution. that distraction techniques genre. are not of this With clarified, be understood Transportation Yellow should proposi- for the holding simple a that stands as narrow given has agency that if a federal administrative tion construction to federal statute defensible then all courts must follow construc- state applied, also if constructions are reason- tion even alternative case, in and deal with no such situation this able. We particu- in all inapposite Yellow Transportation thus to this matter. lars majority that “the wrongly asserts dissent 1 in of subsection light subsection

fails construe Rather, “subsection 1 at 177. we assert that Post go cannot forward without project means the and, incompatibly, not at all subsection approval forward unless it meets certain go means it cannot standards,” and further assert p construction (2)” in language “including, subject to subsection stronger “the ... even implication makes are to be read in combination.” that the two subsections the relation- misapprehends P 161. It is the dissent to read by attempting 1 and 2 ship between subsections concluding that when these isolation provisions they compel manner different results read However, the subsections of “ambiguous.” thus law, are not 247.183, all other provisions MCL as with [June. 470 Mich 154 (cid:127) of the Court discretely, part read but as of a whole. The dissent be errs in these subsections “alone” and then reading first it asserting reading “together” is these subsections merely when it its “alone” interpretations. combines Rather, whole, must, a it Post at 177. to read the law as fact, interpretative be read as a whole. The process not, does, does as the remove words and provi- dissent context, sions from their infuse and provi- these words meanings sions with that are independent of such context, and then reimport meanings these context-free back into the law. The law is not read properly as a whole when its words and provisions isolated and given meanings that are of the independent rest of its when, here, This is provisions. especially true as one of provisions expressly these the other. cross-references (6) Therefore, if even the existence of a reasonable disagreement were the identifying standard ambiguity—which is not—the interpreta dissent’s tion simply of MCL 247.183 is not a reasonable one when subsections 1 and 2 are together, opposed read being discretely. correctly read It cannot be said that “apply entities,” these subsections to different at post 178, when subsection 1 expressly observes that its (2).” provisions “subject are made to subsection Con trary Court, to the mandate of this the dissent fails to word, “give every effect to phrase, clause interpretation statute and avoid an that would render any part surplusage,” State Farm & Cas Co, 142, 146; Co v Old Ins Republic 644 NW2d (2002), by essentially term ignoring “including (2)” in subject to subsection its interpretation. (7) The dissent further asserts MCL 267.183 is ambiguous “application because of the statute to the facts has rendered the correct application of the statute uncertain.” Post at 176. It is hard to know what this v Lansing Mayor

Opinion of the Court interpretation any the law in some means. While identify why specific,” fails “fact dissent sense any any interpretation more than other statute, ambiguous by the instant facts. statute, is rendered majority’s that, whenever view of the law This pipeline public utility or other constructs a project longitudinally within limited access utility requires rights-of-way, that the MCL 247.183 governing the the local must both consent of obtain (subsection 1) pipeline body in and the accor- construct (subsection 2). with and federal standards dance state interpretation pertains it the view that its Is dissent’s not, If the in but not in others? what is some instances interpre- that its relevance of the dissent’s observation specific”? tation is “fact

(8) truly Moreover, if were am even MCL 247.183 biguous, analysis the of what views as the dissent’s history altogether unpersuasive. legislative relevant (Kenneth Henes Question In In re Continen Certified Inc), Ind, 5;n 109, 115 tal Mich NW2d Biomass (2003), emphasized legisla that not all Court this varying history equal value, “results in tive is of which history.” degrees legislative quality highest examples quality There, we that of “the stated legislative history that an of Legislature relates to action of may which draw reasonable

from court Legislature’s respect intent inferences about statutory ambiguous provision” to an “actions of judicial Legislature repudiate intended to con Legislature or of the in struction of a statute” “actions language considering in various alternatives statu language actually tory provisions settling on the before noteworthy that the fails to enacted.” Id. It is dissent history type. rely legislative Instead, the on of either persuasive largely relies on the least form dissent history—staff analyses—which legislative have we 470 Mich 154 the Court found “considerably quality,” are of diminished judicial thus “are to little entitled consideration statutory provisions . . resolving ambiguous . Id.8 examining legislative history on the Even this terms, perplexed dissent’s we are about how it own supports For position. the dissent’s dissent example, cites the was passed single fact “SB 1008 without ‘nay’ vote in either the House Senate....” Post at fact, 183. legislative How does this this bit of history, law, support understanding i.e., the dissent’s the Legislature did not intend that utilities must obtain constructing consent before utility projects in longitudinal highway rights-of-way? does How anything demonstrate than Legislature more unanimously approved being considered today?9

Similarly, we believe that the misapprehends dissent in which “changes” Department “the of Transpor- major tation and the state utilities concurred” when SB Post at passed. suggests was 184. The dissent the “changes” concerned the overall effect the bill problem relying analyses they “The on bill is that do not necessarily represent single legislator. Rather, they the views of a even prepared by Indeed, analyses House Senate staff. the themselves they note legislative that do not official constitute an of statement Lynch & Co vTechnologies, Inc, 578, 588 intent.” Frank Flex W (2001). 7;n 624 NW2d 180 analysis legislative history Our confusion over the dissent’s of is heightened by statutory changed assertion its that “the 1994 amendment Michigan generally state from a that did not allow entities to use limited highway rights-of-way, permit, access at least without a to a state that generally highway the rights-of-way, does allow use of access limited even though subject requirements that use to the in contained subsection only incorrect, contrary 2.” Post at 180. This seems to us not but also to prior analysis, 178-179, post the dissent’s at in it own which notes that pre-1994 rights-of-way by federally 2 did allow use of defined utilities. MAYOR V LANSING the Court in limited constructed utility projects have on would in However, when read highway rights-of-way. access only concerned “changes” the context, that appears it Repre- the House of made “minor amendments” the the fee structure concerning to SB 1008 sentatives Id. projects. such type valuable at the most fact, we look

In when is, actual us, that to history available legislative Legislature made statutory language in change view, than the rather for our support we find that count, change the vote Regardless dissent’s. lim- within “except longitudinally enacted turned was sub- “including, to highway rights-of-way” ited access limited (2), within longitudinally to subsection ject legislative find this We rights-of-way.” access the “true intent” indication that strong to action he in both sub- projects include such was to the drafters 1. them from subsection sections, rather than exclude that the 1994 with the dissent agree we Finally, while ability intended to “eliminate were amendments for construc- to these locations deny access the state to on this services,” dissent relies tion of “ [i]f support proposition to its statement ^[1994] amendment were meant to remove the state’s locations, certainly it access to these deny power power this grant meant could not have the dissent’s asser- Perhaps, .. . .” Post at 185. entities There is correct, hardly self-evident. but tion is that au- the conclusion impels nothing logically locality if it is to be denied thority is to be denied dissent, justices some perhaps While the state. a policy the wisdom of majority, might question terms differently in and localities treats the state construc- utility pipeline required for approval com- Legislature tion, hardly inconceivable it is 470 Mich Opinion op the Court mitted or principle to local control to the subsidiarity might adopt exactly policy.10 such a “[wjhile states that dissent statute does not clearly Legislature indicate whether the intended to require federally defined to obtain local utilities con- sent, it clarity that this lack of is the appears result of a clerical error intent and the was not reverse the 1989 elimination of local control.” Post at (emphasis added). What precisely supposed this “clerical error”? assuming What is the basis for dissent’s such a “clerical error” occurred? is the evidence support What of the existence of a “clerical such error”? Is the dissent justifying its conclusion that MCL 267.183 “ambigu- ous” on the basis of “clerical error”? Or is dissent, instead, asserting legislative history of MCL 267.183 not be only considered, can history but can supersede very language? its

(11) In end, the essence analysis of the dissent’s understandable) is its (perhaps frustrated assertion “I cannot believe that the Legislature intended to subject federally public defined utilities local consent requirements.” Post at 185. This constitutes a legal less conclusion than a statement of discontent with the fact that the Legislature either had a different perspective on pipeline than approval the dissent or it failed 10Although directly applicable not to this case because 1-96 is a federal highway and, thus, city, perhaps Legislature “of” the require approval approval intended because such had been a longstanding part 7, 29, provides § of Const art which in relevant part: person, partnership, corporation, No public association or or

private, operating public utility right aas shall have to the use streets, highways, alleys public places any of the county, or other township, village city wires, poles, tracks, pipes, or conduits or public facilities, other duly without the consent of the authority county, city township, village constituted .... v PSC Concurring Opinion J. Weaver, alone the dissent what to communicate effectively case, there is no In intent.” either its “true knows to be of the the words replacing for this Court warrant of its own. those Legislature with

VI of MCL 247.183 language plain that the conclude We begin- local consent before to obtain Wolverine requires However, local consent project. of its ning construction the PSC.We application at the time of not required is in of Appeals of the Court affirm the decision therefore respects. all Young MARKMAN,JJ., con-

CORRIGAN,C.J., and Taylor, J. curred with in

WEAVER, majority I concur with the {concurring). J. part opinion. all but v its CAVANAGH, majority finds Today, the {dissenting). J. and, in at issue statutory provision in the ambiguity no Legislature. true intent of the ignores the doing, so Legislature I the true intent Because believe major- effect, I dissent. given respectfully must be its refusal to follow my frustrated ity, apparently eye to turning while a blind dictionary lead and use a to this dissent. reality, lengthy response has issued my I own substitute majority asserts While I think it Legislature, for those of policy preferences regard following to note the necessary statutory interpre- “A method of majority’s approach: uninformed, and hence un- deliberately tation that judge’s own constrained, increases the risk that process.” decisional will affect the preferences policy 470 Mich 154 Dissenting Cavanagh, J. Ltd, Bedroc States, LLC United US_,_; 1587, 1598; S Ct L158 Ed 2d 338 (Stevens, J., dissenting).

This case requires us to examine MCL 247.183 to determine whether defendant Wolverine Line Pipe (Wolverine) Company must obtain permission from plaintiff city of Lansing to gas construct a pipeline longitudinally the right-of-way of an interstate high- way within city The majority limits. finds no ambiguity in the and, thus, holds that Wolverine must obtain local consent before constructing pipe- I, line. on the hand, other believe that the statute is ambiguous and turn to the legislative history accompa- nying the statute to discern the Legislature’s true A intent. legislative review the history indicates that Legislature’s intent was to create a streamlined permit system that would require consent from each municipality a pipeline On crosses. bases history of the statute itself and of the legislative history recorded when the statute enacted, was I would hold that Wolverine is not obligated to obtain local consent.

I agree with majority this case involves principles of statutory construction and constru- ing statute, we are required to give effect to the Legislature’s intent. I agree also legislative intent must be gleaned from the statutory text if the language is unambiguous. However, when a statute is ambiguous, judicial construction is necessary to determine its In meaning. MCI, re 460 396, 411; Mich 596 NW2d 164 (1999).

A statute is ambiguous when reasonable minds can differ regarding its meaning. Id. My dissent in Yellow Freight Sys, Inc v Michigan, 464 38; Mich 627 NW2d 236 (CAVANAGH, J., dissenting), rev’d 537 36; US 37; 123 S Ct 151L (2002), Ed 2d 377 vacated and 175 PSC v Dissenting Opinion Cavanagh, J. (2003), on 862; 229 Mich 659 NW2d 468 remanded (2003), 553 602; 669 NW2d App Mich 257 remand making an method for accepted generally outlined determination. ambiguity disagreement over a be reasonable there can

[W]hen 473, 479; Adair, Mich meaning, People v see statute’s it, or, put (1996), others have when 550 NW2d reasonably being well- capable of understood statute senses, that different persons in two or more informed Statutory Singer, 2A Statutes & ambiguous. See statute (6th ed), 45.02, pp § 11-12. Construction dis- expressly Freight in Yellow majority While the statute was determination my agreed Court reversed Supreme States ambiguous,1 the United held that the statute majority the decision of v Michigan, Inc Transportation, Yellow ambiguous. was (2002). 371; L Ed 2d 377 36, 46; 537 US 123 S Ct collected cases where Freight in Yellow My dissent ambiguous. this Court has found statutes have been concluded that statutes [T]his Court has in the has an unclear ambiguous one word when 602, 610; Co, 461 Mich meaning, v Keeler Brass see Perez (2000), interaction with a statute’s when NW2d unclear, meaning see another statute has rendered its (1997), Denio, 691, 699; 564 NW2d 13 People rendered the to facts has application of the statute when Freight argument fact, majority in Yellow made the same In they assert here: asserting ambiguous, that the statute is The dissent contends interpretations by of its “the several is demonstrated this conflicting parties’ by parties.” wording If the advanced ambiguity, then interpretations the measure of a statute’s were ambiguous. litigated A every be deemed statute would almost ambiguous requires attention and careful is not because Freight, supra 12.] analysis. 30 n [Yellow at 470 Mich 154 Dissenting Cavanagh, J. application uncertain,

correct of the statute see Elias Bros (1996). Treasury Dep’t, 144, 150; 549 NW2d 837 [464 Mich 38.] case,

In this application of the statute to the facts has rendered the correct application of the statute uncer- tain. 247.183,

MCL in pertinent part, reads: public utility . .. companies may upon, ... enter construct, pipe over, and maintain ... upon, lines . .. across, any road, public bridge, or under public street or place, including, subject (2), longitudinally to subsection within limited rights way, access and across or any state, under of the waters of necessary with all purpose. erections and fixtures for public utility A. .. , company any ... before commenced, of this work is shall first governing body obtain the consent of city . . . through along poles which these lines and are to be constructed and maintained. (2) utility A may defined in 23 C.F.R.645.105[] enter upon, construct, and maintain lines and structures longitudinally within highway rights way limited access in accordance approved by with standards the state trans-

portation commission that governing conform to federal regulations. laws and The majority’s statutory analysis begins and ends with the dictionary definition of “subject to.” The majority “subject concludes that to” does “not mean that the requirements of subsection 1 do apply those utilities that are covered also subsection 2.” Ante at 160. While the majority uses a double negative to hedge, I think the more direct statement to be gleaned from the “subject inclusion of to” in subsection 1 and its conspicuous absence from subsection is that subsection 2 may utilities not be “subject to” the requirements of subsection 1. Because are a specific utilities group federally defined utilities 177 v

Dissenting Opinion Cavanagh, J. imposed subject regulations beyond those on to that are general 1,1 in think it’is utilities subsection the broad say Legislature may have intended to that the fair to specific regulatory to the more- a create scheme regulated entities. requirement in sub-

Thus, it unclear whether is utility public companies obtain 1, must section utility, applies in as defined subsec- consent, local reading appears 1 alone 2. When subsection tion public local before utilities must obtain consent all constructing any public place.

pipelines read- in When appears ing however,it that feder- alone, 2 subsection longitudi- may pipelines ally defined utilities construct rights-of-way highway nally as within limited access they comply applicable long with the state standards. together, read it is unclear sections are When two comply 2 with the whether utilities must subsection requirement 1. in consent subsection statutory rule of construction “It is a well-established light provisions in of a statute must be construed carry provisions out the the other of the statute Legislature.” Farrington apparent purpose of the Petroleum, Inc, 201, 209; 501 NW2d 76 Total (1993). majority 1

Here, fails to construe subsection light and, thus, that the 2 concludes subsection ambiguous. is statute agree meaning of MCL 247.183 is I cannot ambiguous unambiguous. if A there clear and statute is disagreement can over statute’s be reasonable meaning meaning. supra MCI, In at 411. The re disagreement. subject There to reasonable argument imposes re- that subsection reasonable imposed by quirements, in addition to those subsection definition of on utilities that meet looking 645.105, to construct lines CFR and that are 470 MICH Dissenting Cavanagh, J. longitudinally rights-of- within limited access statute, Way. reading Under this required utilities would be obtain local consent. However, is argument there also a reasonable that 1 and 2 to apply subsections different entities and excepted subsection 2 entities are from the require- ments of 1. are at subsection Because there least two interpretations 247.183, reasonable MCL the statute ambiguous. is ambiguous, judicial When statute construction MCI, re appropriate. supra In at 411. As previously stated, statutory it is a maxim of construction that “provisions of a statute must be in light construed other provisions of the . .” statute.. Farrington, at supra construing 209. In 1 in light subsection 2, I find Legislature to intended create a special process for federally defined utilities wish to construct pipelines longitudinally within limited highway access rights-of-way. statutory

The legislative history and sup- further ports Legislature conclusion that the did not intend federally utilities, defined Wolverine, such as have to obtain local consent constructing before pipelines longitudinally in limited access highway rights-of-way. governing When the statute construction and mainte- nance of pipelines originally 1925, was in enacted it did longitudinal not address rights-of-way.2 1988, Until 2 provided, pertinent part: Section 13 of PA 368 Telegraph, telephone, power public utility companies and other municipalities upon, construct, are' authorized to enter over, pipe upon, across, any public maintain ... lines ... or under road, bridge, public places any street and across or under state, necessary in this all waters with erections and fixtures therefor: Provided every public company . .. .. such . any

before work of such construction and erection shall be Lansing mayor Dissenting Opinion Cavanagh, J. highway rights-of-way of interstate longitudinal use Highway from the Federal Adminis- required permit 1988, regulations In amended tration. federal were rights-of-way in accordance longitudinal to allow use of if was permitted federal such use regulations See 23 CFR 645.105. state. was amended reflect Michigan The PA change. “except longitu 215. phrase was added dinally rights way” within limited access 1, also Legislature to subsection and the added subsec 247.183(1) Essentially, tion 2 to the statute. MCL provided that certain entities were authorized con over, across, upon, any public or under pipelines struct except highway rights-of- limited access place, within words, way. according In other to subsection Michi did not of limited gan generally longitudinal allow use rights-of-way. general use was access While commenced, duly first the constituted shall obtain consent city,village, township through along of authorities the or or which poles said lines and are to and be constructed erected. 1989, 2 was added in it read: When subsection permit utility transportation department may The state a 645.105(m) construct, upon, in to defined 23 CFR enter and longitudinally and maintain lines structures within limited highway rights way ap- of with access accordance standards by proved transportation fines the state commission. Such and underground or constructed so as not structures shall be otherwise governing federal to be visible. The standards shall conform regulations may provide imposition the a laws and and for of charge longitudinal reasonable for use of limited access way. imposition charge rights a of The of a reasonable constitutes function, offsetting capital governmental portion of and highway, expense of limited maintenance access and not a proprietary All under this subsection function. revenue received expenses capital shall be used for and maintenance incurred for highways. limited access Mich Dissenting J. Cavanagh, prohibited by 1, subsection 2 allowed feder- defined utilities ally permit to obtain use rights-of-way. again.

In the statute amended PA was of 306. focus ensuring 1994 amendments was that was for limited feasible utilities to construct end, highway rights-of-way. access To fees that could be charged longitudinal use limited access highway rights-of-way adjusted were and the nature permit system was altered changing phrase- ology subsection 1. In pertinent part, Senate Bill 1008 looked like this:

Sec. Telegraph, telephone, power, 13. and other public utility companies, companies, cable television municipalities are- upon, authorized to MAY enter telegraph, construct telephone, power and maintain or lines, lines, wires, cables, pipe poles, conduits, sewers and upon, over, across, like OR SIMILAR structures or under any public road, bridge, street, public place, except INCLUDING, (2), longitudi- SUBJECT TO SUBSECTION nally highway rights way.... within limited access Notably, the word “except” was replaced (2).” phrase “including, subject to subsection In other words, the 1994 statutory amendment changed Michi- gan from a that generally state did not allow entities rights-of-way, use limited access highway at least without a to a permit, state that generally does allow use limited highway rights-of-way, access even though subject that use is to the requirements con- tained in subsection 2. amendments,

Before the 1994 subsection 1 permitted pipeline areas, construction in public prohibited but construction within limited access highway rights-of- 1 way. Subsection also required local consent. Subsec- 2, hand, tion on the other allowed the Department state 181 v PSC Dissenting Cavanagh, J. defined federally to permits Transportation of issue limited access within pipelines to construct utilities amendments, After the 1994 rights-of-way. highway areas, in public 1 construction permits still subsection may pipe- that entities construct provides but it also limited access longitudinally within lines 1 still sentence rights-of-way. The second 2 to obtain local consent. Subsection requires utilities may within limited utility that a construct now states if a fee and pays highway rights-of-way access comport with the standards conforms state standards; permit a state longer requires no federal Transportation. Department from the amendments history of the statute and While insight Legislature’s into provide themselves some analyses and the documents con- intent, legislative provide committee files tained in House and Senate has held I that this Court insight. recognize even more is a feeble indicator of legislative analysis that “a unpersua- legislative generally intent and therefore & statutory WLynch Frank tool construction.” sive 587; Inc, 578, Mich 624 Technologies, Co v Flex (2001). However, recently this Court more NW2d recognized using history legislative when a statute is

the benefit of ambiguous provision ambiguous construction an Lansing, necessary. City App 221 Mich Stajos v becomes Hall, (1997); 175; 223; People v Mich NW2d (1974); Liquor Control Comm v Fraternal 215 NW2d 166 32; 281 NW 427 Eagles, Aerie No Order of (1938).... history legitimate legislative in- Examples of considering Legislature in various ... clude actions statutory provisions language before alternatives actually See, e.g, language Miles ex settling on the enacted. 552, 558; Fortney, 223 194 NW 605 Mich rel Kamferbeek drafts, (1923).... legislative By comparing alternative meaning for may the intended be able discern court 182 470 MICH 154 Dissenting by Cavanagh, J. (Ken-

language actually Question [In enacted. re Certified Projects Procurement, Special neth Marketing Henes Industries, Consulting Corp Inc), v Continental Biomass (2003).] 109, 5; 115 n NW2d The “various alternatives in language” examined statutory the Court in Miles were amendments made a twenty-six-year case, over period. In that this Court telling Legislature found it that the eliminated words in 1917 that were added in 1909 and remained through the 1915 amendment. amendments were to the general law, election which at the time of the election in question required election inspectors to indorse all Miles, ballots “in ink or pencil.” with indelible supra at 553. This Court concluded the Legislature’s dele- tion of the words “or with signified legislative lead” intent to remove the of possibility signature with lead 558, at pencils. Id. 564. the

Although Legislature added and then removed specific Miles, term in that was not the case here. In case, Legislature did not possibil- eliminate the ity constructing pipelines longitudinally within lim- ited highway rights-of-way; access rather, it subjected such construction to the requirements of only.

It is clear from both text the statute and the legislative analysis of the 1989 amendment 1989 amendment was intended to eliminate local con- trol. Subsection 1 of the 1989 prohibited amendment construction within limited highway access rights-of- way. Thus, the local consent requirements of subsection clearly did not apply to the prohibited actions. See also Legislative Analysis, Senate 11,1989 HB October (“The bill would amend Public Act 365 of 1925 ... authorize the Department Transportation, rather bodies, than local governing permit longitudinal v Dissenting Opinion Cavanagh, J. ... within limited access lines construction rights-of-way.”) 247.183 is However, of MCL the 1989 amendment the most recent at issue because language not 1994 amendment. amendment of statute was clearly indicate whether the statute does While federally defined utili- Legislature require intended to consent, appears that this lack ties to obtain local intent was clerical error and the is the result of a clarity control. The the elimination of local not to reverse 1994 amendment analysis accompanying the legislative simply amendment was suggests purpose that the of the for utilities to use limited that it was feasible ensure by accomplished This highway rights-of-way. was access of limited access longitudinal fees for use adjusting the the ensuring that state highway and rights-of-way highway maintenance prevent standards an increase 1008, August SB Analysis, Legislative costs. See Senate 3, 1994. sup- further journals provide

The and House Senate not intend Legislature the notion that the did port for federally impose requirement a amendment The indi- journals defined utilities obtain local consent. single “nay” passed cate that SB 1008 without was only and the amend- vote in either House Senate 2, of the bill were to subsection which proposed ments of longitudinal use charged deals with the fees to be 1994 Journal highway rights-of-way. limited access 1639, 1558,1578; House 1994 Journal Senate 1978-1979. standing committee journals,

In addition to the Energy and Com- Technology records from the Senate regarding the bill on mittee the discussions that the provide also for the notion support Senate floor federally intend to defined Legislature subject did not Mich Dissenting Opinion Cavanagh, J. to the requirement. utilities local consent The Senate Technology Committee on and Energy held a committee hearing 23, on March 1994. Included in the committee Analysis, records Legislative analysis Senate an Majority Policy Office, Senate and written testi- mony Telephone General and Electronics and the Michigan Department Transportation. analysis from the Majority Policy Senate Office

states, “Senate Bill 1008 would amend current law to permit a utility to enter utility and construct services along longitudinal axis of limited access using adopted standards by the State Transportation Commission. The amendatory language would also eliminate the ability of the state deny access to these locations for construction of services.” 1008,

Senate Bill which resulted in the 1994 amend- of the act, ments was introduced Senator Hoffman. SB 1008 was 8, 1994, introduced on February sent on to the House Representatives April on 1994. 12, 1994, On June the bill returned from the House to the Senate with minor amendments and Senator Hoff- explained man the bill on the Senate Floor before a vote. He explained that Representatives the House of made two amendments to the bill the fee concerning structure for constructing in limited access highway rights-of-way. He conveyed that Department Transportation and the major state utilities concurred changes and he urged the Senate to members concur as well. Audio Tape: Michigan State Senate (June 1994) (on Session file at the Michigan State of Archives).4 stating missing my alleged Without what from recitation of facts,” majority “various random asserts that dissent this is tinder- later, however, Ante at majority

inclusive. 164. A few breaths asserts PSC Dissenting Opinion Cavanagh, J. the state’s meant to remove

If amendment were locations, certainly to deny access these power to to local grant power meant to have been could not maybe it more cumbersome entities, making thus high- access within limited to construct impossible even used in reviewing language way After rights-of-way. believe history, I cannot legislative and the subject de- federally Legislature intended requirements. local fined utilities to consent public ambiguous and I that the statute is Because believe require intent was legislative the true wish to con- federally defined utilities consent when limited within access longitudinally pipelines struct dissent. respectfully I highway rights-of-way, must KELLY, J., concurred with J. CAVANAGH, Ante legislative history.” at am “bit of 170.1 that I included a useless have everything respond majority to a that wants at a loss for how nothing same time. at the

Case Details

Case Name: Mayor of Lansing v. Public Service Commission

Court Name: Michigan Supreme Court

Date Published: Jun 9, 2004

Citation: 680 N.W.2d 840

Docket Number: Docket 124136

Court Abbreviation: Mich.