NEMETH v ABONMARCHE DEVELOPMENT, INC
Docket No. 106747
Supreme Court of Michigan
Decided April 21, 1998
Argued December 10, 1997 (Calendar No. 12).
457 MICH 16
In an opinion by Justice BRICKLEY, joined by Chief Justice MALLETT, and Justices BOYLE and TAYLOR, the Supreme Court held:
Violations of the soil erosion and sedimentation control act can form the basis of a prima facie case under Michigan‘s environmental protection act. The environmental protection act does not per
- Under the SESCA, an earth change is defined as a human-made change in the natural cover or topography of land activities that may result in or contribute to soil erosion or sedimentation of the waters of the state. Rules promulgated by the DNR pursuant to the SESCA provide that a landowner or developer who contemplates an earth change within five hundred feet of a lake or stream must obtain a permit from the appropriate enforcing agency before commencement. In addition, a soil erosion and sedimentation control plan must be submitted, reviewed, and approved before applying for a permit. When a permit applicant has met all the requirements of the rules and the SESCA, the enforcing agency must issue a permit for the proposed earth change. It is not disputed that defendants violated the SESCA and the rules promulgated pursuant to it.
- The MEPA does not require air, water, or other natural resources to be scarce or unique to be protected from actual or likely pollution, impairment, or destruction. Each alleged MEPA violation must be evaluated by the trial court using the pollution control standard appropriate to the particular alleged violation. It is proper for the trial court to independently determine whether these pollution control standards are valid, applicable, and reasonable in accordance with the development of the common law of environmental quality. If the trial court finds them deficient, it may direct the adoption of another pollution control standard that it approves and specifies. SESCA violations can establish a prima facie case under MEPA, provided that the trial judge has deemed the SESCA standards appropriate, applicable, and reasonable. In this case, the trial court found the SESCA and the rules promulgated under it to be valid, applicable, and reasonable pollution control standards by which to evaluate the plaintiffs’ MEPA claim and the defendants’ conduct.
- Attorney fees are not ordinarily recoverable unless a statute, court rule, or common-law exception provides the contrary. The MEPA does not permit a trial judge to apportion attorney fees. While the MEPA mandate that Michigan courts develop the common law of environmental quality gives the courts discretion in developing the substantive law, it does not provide discretion with regard to the apportionment of costs. The language of the statute is clear and unambiguous. Costs apportioned in an MEPA action do not include attorney fees.
Justice WEAVER concurred only in the result.
Affirmed in part and reversed in part.
The Legislature allowed costs in MEPA actions to be apportioned to the parties if the interests of justice require. In addition, since the enactment of the MEPA, a host of remedial environmental statutes have been enacted that allow for the apportionment of attorney fees. If the progeny of the MEPA are to provide for attorney fees, it follows that the statute that began this entire area of law would also allow them. MEPA actions often are protracted and technical proceedings whose cost would be prohibitive to most persons. To expect that the MEPA will be utilized by individuals to protect the environment at private expense is to ignore the reality of litigation today.
Philip R. Rosi, and Olson, Noonan, Ursu & Ringsmuth, P.C. (by James M. Olson and Christopher M. Bzdok), for the plaintiffs-appellants.
Sullivan, Crowley & Beeby, P.C. (by George W. Beeby), for defendants-appellees Abonmarche Development, Inc.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Thomas G. Herman) for defendant-appellee city of Manistee.
Cross, Wrock, P.C. (by Jack O. Kalmink), for defendant-appellee Morren Construction & Engineering, Inc.
Smith, Haughey, Rice & Roegge (by Jon D. Vander Ploeg) for defendant-appellee MacLean Construction Company.
Rentrop, Vanderkloot, Haynes & Morrison, P.C. (by Jeffrey K. Haynes and C. Thomas Ludden), for Michigan Environmental Council.
OPINION OF THE COURT
BRICKLEY, J.
I
We are called upon to decide two issues in this case. First, we must determine whether violations of the soil erosion and sedimentation control act,
II
In the fall of 1990, defendant developers1 began construction of a multimillion-dollar marina, condominium, and hotel project at the mouth of the Manistee River, on the shore of Lake Michigan, on property owned by defendant city of Manistee. Construction involved stripping the vegetation and topsoil from thirty acres of barrier dunes, digging a marina basin, and moving thousands of cubic yards of earth into
Nine months later, a group of residents sued the developers and the city of Manistee. Plaintiffs2 had several theories of recovery; however, only the allegation of a violation of the MEPA is before this Court. Plaintiffs argued that the developers’ violations of the SESCA provided sufficient evidence that the developers’ activities violated the MEPA by either polluting, impairing, destroying air, water, or other natural resources, or were likely to do so. See subsection 1703(1).
The trial court issued a preliminary injunction against defendants on February 28, 1992, nunc pro tunc from December 7, 1991, enjoining excavation of soil and movement of soil in the project area. Neither the construction on the building sites nor the earthmoving activities where the defendants were trying to establish joinder of the Manistee River with the marina basin were enjoined. The trial judge made findings of fact on which he based his grant of the preliminary injunction. First, the court found that the severity of the storm that occurred in 1990 was due to the stripping of the vegetative cover of the project
However, this demonstrated indifference underwent significant change through the course of the litigation. In December of 1991, at the behest of the trial court, the city took steps to put in place a soil erosion control officer—independent of the city‘s operational control. Before the independent officer‘s insistence, no soil erosion control plan had been submitted by defendants that met the SESCA‘s requirements.
That officer also issued a cease and desist order, insisting that certain measures be taken before any work could continue on the site. Upon issuance of that order, the developers took immediate steps to conform to the requirements and “lay down this material to hopefully hold the soil in place until a proper mulch cover . . . and grass cover [could] be put in place.” The trial court specifically noted that there was no cover before this because the developers’ efforts in 1991 were not done in a timely fashion; therefore, the mulch and grass cover they attempted to put in was not able to take hold in a manner sufficient to meet the requirements of the SESCA.
The trial court was satisfied that plaintiffs had established a likelihood of prevailing on the merits; that is, they were harmed by the alleged violations of the environmental statutes. The trial court, in weighing the harm to plaintiffs and the cost to defendant
The trial court ruled that the preliminary injunction would last until the proper permits by the independent soil erosion control officer were issued because the prior permits were not valid since the permits were not supported by an adequate soil erosion control plan. All that really remained to be done, according to the trial court, was for the developers to apply for the permits and the soil erosion control officer to make his independent evaluation regarding whether the permits should be issued. The injunction did not affect the city of Manistee.
The trial court granted plaintiffs’ motion for a permanent injunction on October 27, 1992, and issued its final judgment and order on November 24, 1992. The final judgment and order provided that defendants were permanently enjoined as follows:
(1) Enjoined nunc pro tunc, from December 7, 1991, until the issuance of proper soil erosion control permits, from performing any construction activities which include and involve movement of soil. This injunction to exclude solely (a) minor movements of soil for the continuing construction of building sites and (b) earth moving in the area where Defendants are attempting to establish a joinder of the marina basin with the Manistee River, i.e., at the “River site.”
(2) Mandatorily enjoined and directed to the same extent and scope of any cease and desist order and/or directive from the Independent Soil Erosion Control Officer, subject to Defendants’ right to an administrative appeal from such order or directive and limited by any reversal or modification or other change thereof on such an appeal, and subject to Defendants’ concurrent right to challenge in this Court the propriety and scope of such Officer‘s order or directive.
Finally, the trial court awarded attorney fees and costs to plaintiffs, pursuant to the MEPA, in the amount of $89,377 against defendants, Abonmarche, Morren, and MacLean, but not against the city of Manistee.
The Court of Appeals, in an unpublished opinion per curiam, held that an injunction based on a violation of the MEPA was not warranted because the activity of defendants did not “rise to such a level of impairment or destruction of a natural resource so as to constitute an environmental risk,” relying on Dafter Sanitary Landfill v Superior Sanitation Service, 198 Mich App 499; 499 NW2d 383 (1993). Slip op, p 2. Moreover, held the Court of Appeals, the natural resource in question—sand—and its location, was not rare, unique, endangered, or of historical significance. Id. Finally, the Court of Appeals held that sand is easily replaceable and that the movement of sand in that area would not have any significant consequential effect on other natural resources.
The first issue we are called on to decide in this case is whether the trial court properly held that plaintiffs established that defendants violated the MEPA by showing that defendants violated the SESCA. Subsection 1703(1) of the MEPA provides:
When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. 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 his or her conduct is consistent with 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. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts apply to actions brought under this part.
At the center of this controversy is the proper application of our decision interpreting the MEPA in Ray v Mason Co Drain Comm‘r, 393 Mich 294; 224 NW2d 883 (1975). Plaintiffs argue that the low threshold of harm required by the MEPA and Ray has been chipped away by the lower court‘s imposition of additional requirements. Defendants argue that a violation of the SESCA cannot, by itself, amount to a violation of the MEPA.
First, we must reiterate exactly what is required by Ray. We held that the “judicial development of a common law of environmental quality, as envisioned by the Legislature, can only take place if circuit court
The trial judge must find facts on which the plaintiff claims to have made a prima facie case under the MEPA, that is, what conduct of the defendant “has or is likely to pollute, impair or destroy the air, water or other natural resources.” Ray, supra at 309. Importantly, we held in Ray that the necessary showing to establish a plaintiff‘s prima facie case is “not restricted to actual environmental degradation but also encompasses probable damage to the environment as well.” Id. at 309. General rules of evidence govern this inquiry, and a plaintiff has established a prima facie case when his case is sufficient to withstand a motion by the defendant that the judge direct a verdict in the defendant‘s favor. Id. at 309, citing Gibbons v Farwell, 63 Mich 344, 348; 29 NW 855 (1886). The basic import of Ray has not changed.
We must now determine what effect plaintiffs’ showing that defendants violated the SESCA has on establishing a prima facie case under the MEPA. This first involves an examination of the provisions and purposes of the SESCA. The SESCA defines “earth change” as
a human-made change in the natural cover or topography of land, including cut and fill activities, which may result in or contribute to soil erosion or sedimentation of the waters of the state. [
MCL 324.9101(5) ;MSA 13A.9101(5) .]
except in accordance with this part and the rules or with the applicable local ordinance and pursuant to a permit approved by the appropriate county or local enforcing agency. [
MCL 324.9112(1) ;MSA 13A.9112(1) .]
Pursuant to § 9104, the Department of Natural Resources has promulgated rules for a
unified soil erosion and sedimentation control program, including provisions for review and approval of site plans, land use plans, or permits relating to erosion control and sedimentation control.
According to these rules, a landowner or developer who engages in an earth change shall obtain a permit from the appropriate enforcing agency before commencement of an earth change that is within five hundred feet of a lake or stream in Michigan. 1979 AC, R 323.1704(1). Moreover, a soil erosion and sedimentation control plan shall be submitted to the appropriate enforcing agency by anyone proposing to undertake an earth change. R 323.1706(1). The soil erosion and sedimentation control plan shall be reviewed and approved before application for a permit by a person so designated and trained by the enforcing agency. R 323.1707(1). Upon a determination that a permit applicant has met all the requirements of these rules and the sediment act, the enforcing agency shall issue a permit for the proposed earth change. R 323.1707(5). The Court of Appeals agreed with the trial court that defendants “technically” violated the SESCA. Slip op, p 2. It is not disputed that defendants violated the SESCA and the rules promulgated pursuant to it.
Sediments carried by erosion represent the greatest volume of wastes entering surface waters. The volume of suspended solids reaching U.S. waters is at least 700 times greater than the total amount of sewage discharges. Sedi-
ments are washed in from croplands, unprotected forest soils, overgrazed pastures, strip mines, roads, and bulldozed urban areas. Agricultural development increases land erosion rates four to nine times over the rate from lands with natural cover. Construction may increase the rate a hundredfold. Federal studies have estimated the average sediment yield during a rainstorm at highway construction sites at about 10 times that for cultivated land, 200 times that for grass areas, and 2,000 times that for forest areas—depending on the amount of rainfall, land slope, and the exposure of the bank. High rates of sediment production also occur from commercial and industrial construction in urban areas. [2 Environmental Law, § 3.01(1)(f)(i), p 3-18.]
Professor Grad‘s explanation of the effect of sedimentation and erosion on water supports that contained in the Executive Legislative Analysis. See n 4. Thus, a major purpose of the SESCA is to prevent and control water pollution caused by sedimentation and erosion. Moreover, sedimentation and erosion necessarily implicate soil. The provisions of the SESCA and the rules promulgated thereto clearly evidence the legislative intent to protect soil. Additional evidence of the legislative intent to protect soil and water is found in part 93—Soil Conservation Districts—of the Soil Conservation, Erosion, and Sedimentation Control portion of article II, chapter 2 of the Natural Resources and Environmental Protection Act, where the Legislature has expressly provided:
It is the policy of the legislature to provide for the conservation of the soil and water resources of this state and for the control and prevention of soil erosion, and thereby to conserve the natural resources of this state, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, preserve wildlife, protect the tax base, protect public lands, and pro-
tect and promote the health, safety, and general welfare of the people of this state. [
MCL 324.9302 ;MSA 13A.9302 .]
Thus, the Legislature has clearly provided that the protection of the soil and water of this state through the prevention of sedimentation and erosion is of the utmost importance.
Now that we have established that the purpose of the SESCA is to prevent environmental harm caused by sedimentation and erosion, the crux of the issue then becomes whether plaintiffs’ showing of defendants’ SESCA violations established a prima facie case under the MEPA of actual or likely pollution, impairment, or destruction of a natural resource. The import of our examination of the provisions, purposes, and policies of the SESCA is to analyze whether the trial court properly determined the appropriate standard by which to evaluate the plaintiffs’ claim and the defendants’ conduct pursuant to § 1701(2). We conclude, on the basis of the purposes of the SESCA and its public policy, that the trial court properly determined the SESCA to be the appropriate pollution control standard applicable in this case.
At the heart of the Court of Appeals error in this case was its failure to consider subsection 1701(2), which provides:
In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may:
(a) Determine the validity, applicability, and reasonableness of the standard.
(b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.
This function of the Michigan courts was discussed by the United States Court of Appeals for the Sixth Circuit in Her Majesty the Queen v Detroit, 874 F2d 332 (CA 6, 1989). Noting that the MEPA is supplementary to other administrative and regulatory procedures provided by law, the court correctly stated that the MEPA specifically authorizes a court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control ”and to specify a new or different pollution control standard if the agency‘s standard falls short of the substantive requirements of MEPA.”5 Id. at 337 (emphasis in original).
Furthermore, the MEPA does not impose specific requirements or standards; instead, it provides for de novo review in Michigan courts, allowing those courts to determine any adverse environmental effect and to take appropriate measures. Id. at 341. Finally,
By the same token, defendants’ argument that the SESCA does not provide for a private cause of action is without merit. The absence of a cause of action under the SESCA does not preclude its use as an appropriate “pollution control” standard for a claim under the MEPA.
However, the Court of Appeals simply applied the so-called Portage factors, set forth by another panel of the Court of Appeals in Portage v Kalamazoo Co Rd Comm, 136 Mich App 276; 355 NW2d 913 (1984). The Portage Court held:
In determining whether the impact of a proposed action on wildlife is so significant as to constitute an environmental risk and require judicial intervention, the court should evaluate the environmental situation prior to the proposed action and compare it with the probable condition of the particular environment afterwards. The factors the court should consider include: (1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable . . . , (3) whether the proposed action will have any significant consequential effect on other natural resources . . . , and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the
nature and location of the wildlife affected. [Portage, supra at 282.]
This Court also addressed the issue whether the plaintiffs established a prima facie case under the MEPA in West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741; 275 NW2d 538 (1979). We held that the plaintiffs demonstrated a likelihood that the issuance of ten permits by the Supervisor of Wells for the proposed drilling of exploratory wells would result in an impairment or destruction of natural resources, noting that there was little dispute that the drilling of the wells “will have some adverse impact upon some wildlife, particularly elk, bobcat and bear.” Id. at 755. After thoroughly examining the plaintiffs’ proofs,6 this Court recognized that
virtually all human activities can be found to adversely impact natural resources in some way or other. The real question before us is when does such impact rise to the level of impairment or destruction? [Id. at 760.]
We then held that the limited number of elk, the unique nature and location of the herd, and the apparent serious and lasting damage that would result to the herd constituted an impairment or destruction of a natural resource. Id. at 760.
Defendants argue, on the basis of their reading of Environmental Action Council and Portage, that the trial court made no findings about whether sand or
Regardless of the validity of the Portage factors, defendants’ argument is inherently flawed for several reasons. First, the Portage Court acknowledged that the “removal of trees, a form of wildlife, constitutes destruction of a natural resource under the MEPA.” Id. at 281. Thus, the holding in Portage was not based on a finding that trees were not a natural resource or that the number of trees in Michigan somehow
Furthermore, the Environmental Action Council analysis involved an evaluation of the plaintiff‘s proofs to determine the proper standard under which the court should grant relief. However, the factors used, like the Portage factors, were applicable to the facts of that case, the natural resources involved, and the evidence presented. It does not necessarily follow that because the natural resources involved here may not be scarce or unique, no actual or likely pollution, impairment, or destruction exists. The MEPA does not require air, water, or other natural resources to be “scarce” or “unique” to be protected from actual or likely pollution, impairment, or destruction. Indeed, one of the primary purposes of the MEPA is to protect our natural resources before they become “scarce.” In Environmental Action Council, the nature of the
Thus, our conclusion is not that the Portage factors are necessarily incorrect or invalid, but that each alleged MEPA violation must be evaluated by the trial court using the pollution control standard appropriate to the particular alleged violation. Assuming that the Portage factors were proper for assessing whether the activity in that case violated the MEPA, it does not follow that the Portage factors, like the factors used in Environmental Action Council, are the proper pollution control standard here. A pollution control standard indeed has been articulated by the Legislature, through the SESCA, and by the DNR, through the rules promulgated by it pursuant to the SESCA. It is proper for the trial court to independently determine whether these pollution control standards are valid, applicable, and reasonable in accordance with the courts’ development of the common law of environmental quality. If the trial court finds them deficient, it may direct the adoption of another pollution control standard that it so approves and specifies. Here, the trial court found the SESCA and the rules promulgated thereunder to be valid, applicable, and reasonable pollution control standards by which to evaluate plaintiffs’ MEPA claim and defendants’ conduct. The trial court carefully evaluated plaintiffs’ claim and found that plaintiffs met their burden of proving by a preponderance of evidence that defendants’ actions would result in actual or likely pollution, impairment,
The Court of Appeals held that a “technical violation” of the
Here, the trial court made findings of fact, in compliance with the
IV
The second issue we are called on to decide is whether the
As we have noted previously, “[f]or better or worse, the common-law tradition in Michigan follows what is sometimes called the ‘American rule’ regarding attorney fees.” Popma v. Auto Club Ins Ass‘n, 446 Mich 460, 474; 521 NW2d 831 (1994). This rule provides that attorney fees are not ordinarily recoverable
Plaintiffs maintain that the Legislature, by use of the language “in the interests of justice,” codified the “well-established” private attorney general exception to the American rule as articulated by the United States Supreme Court at the time the
We shall now examine the history of the private attorney general exception in the federal system. The Supreme Court referred to the private attorney general doctrine in Newman v. Piggie Park Enterprises, Inc., 390 US 400; 88 S Ct 964; 19 L Ed 2d 1263 (1968). Referring to congressional legislative history, the Court noted that if a title II12 plaintiff obtains an injunction,
he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered
of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II. [Id. at 402 (emphasis added).]
This mention of the private attorney general doctrine was based on the purpose of and policy underpinning Congress’ specific grant of the prevailing party‘s right to attorney fees as part of costs.
In Hall v Cole, 412 US 1, 7, n 7; 93 S Ct 1943; 36 L Ed 2d 702 (1973), on which plaintiffs rely heavily, the Supreme Court had “no occasion to consider that question,” whether attorney fees might be justified on the ground that the respondent acted as a “private attorney general,” by vindicating a policy that Congress considered of high priority. In addition to the fact that this case was decided three years after the
Finally, in Alyeska Pipeline Service Co v Wilderness Society, 421 US 240, 245; 95 S Ct 1612; 44 L Ed 2d 141 (1975),14 the Supreme Court acknowledged the existence of two common-law exceptions to the American rule—the bad-faith exception and the common-benefit exception—but reversed the federal court of appeals holding that litigants who vindicate important statutory rights of all citizens were entitled to attorney fees. The Supreme Court rejected this “far-reaching” exception because it was “inappropri-
In sum, the Supreme Court persuasively held:
It is true that under some, if not most, of the statutes providing for the allowance of reasonable fees, Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation. . . . But congressional utilization of the private attorney general concept can in no sense be construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowance to the prevailing party and to award attorneys’ fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award. Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others. But it would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant and
to allow attorneys’ fees only in connection with the former. [Alyeska, supra at 263-264.]
The Supreme Court‘s analysis in Alyeska Pipeline comports with our holding in Popma and with the observation that the Legislature knows how to provide for attorney fees when enacting a statute and has done so on many occasions, including several environmental protection statutes.16 Plaintiffs are correct that the
Contrary to plaintiffs’ assertions, our holding does not conflict with Macomb Co Taxpayers Ass‘n v L‘Anse Creuse Public Schools, 455 Mich 1, 9; 564 NW2d 457 (1997), in which we held that the voters who ratified the Headlee Amendment understood “costs” to mean “all expenses,” rather than the limited, technical use of “costs” as a legal term of art. We rejected the defendant‘s argument that the voters should be charged “with knowledge of technical details of our legal system, such as the so-called American rule . . . for awarding costs.” Id. at 8.
However, the Legislature is the entity that defined “costs” in
Perhaps it is true that the inability of a trial judge to award attorney fees to the
It may be that the inability of a trial judge to apportion attorney fees in the interest of justice is critical to effective judicial administration of the
In conclusion, we hold that plaintiffs’ showing that defendants violated the
MALLETT, C.J., and BOYLE and TAYLOR, JJ., concurred with BRICKLEY, J.
WEAVER, J., concurred only in the result.
CAVANAGH, J. (concurring in part and dissenting in part). I concur fully in the majority‘s analysis and conclusion regarding the presence of a Michigan environmental protection act (
Throughout its history, the application of the
While I do not disagree in principle with much of the majority‘s analysis of this issue, I find fault with its application to the present case. In the
The entire Court agrees that the Legislature enacted the
The reality of the
KELLY, J., concurred with CAVANAGH, J.
Notes
“The Michigan Environmental Protection Act was the first statute to provide for citizen suits to protect the environment from degradation by either public or private entities and to provide a broad scope for court adjudication. The Federal Clean Air Act and Water Pollution Control Amendments, as well as several state statutes, have followed the Michigan Act‘s lead.” [Id. at 298, n 1, quoting Sax & DiMento, Environmental citizen suits: Three years’ experience under the Michigan environmental protection act, 4 Ecology LQ 1 (1974).]
Soil erosion and sedimentation control was officially recognized by the legislature as early as 1937 when it enacted Act 297 of Public Acts of 1937, known as the Soil Conservation Districts Law. Added emphasis to soil erosion and sedimentation control has come to the forefront in recent years with recognition that from the standpoint of volume, sedimentation is the greatest polluter of water. For thirty years the State Soil Conservation Committee and the Soil Conservation Districts have been assisting landowners to reduce erosion. In recent years it has been recognized that many non-agricultural land uses are contributing large quantities of sediment to water. Highway construction, subdivision and shopping center developments and industrial building are examples of such contributors.
Several local government units have already enacted construction ordinances which contain provisions for soil erosion and surface water movement control. The purpose of this bill is to provide for a statewide soil erosion and sedimentation control program with uniform rules and guidelines which may be used both statewide and by local entities to control soil erosion and sedimentation.
Platte Lake Improvement Ass‘n v Dep‘t of Natural Resources, 218 Mich App 424; 554 NW2d 342 (1996), and Attorney General v Piller (After Remand), 204 Mich App 228; 514 NW2d 210 (1994). Piller‘s value in this debate is limited by the positioning of the parties, where the defendant had been awarded partial attorney fees, in part on the basis of the plaintiff‘s acquiescence to the defendant‘s actions by failing to take required action on a permit application under another statute, which required such failure to be considered approval of the application.Previously these agencies had been given a sweeping mandate to enforce environmental standards as they thought best, and their decisions were subject to judicial review only for arbitrary and abusive use of their authority or for violation of explicit statutory language. Now these agencies must be prepared to defend themselves against charges that their decisions fail to protect natural resources from pollution, impairment, or destruction. [Sax & Conner, Michigan‘s environmental protection act of 1970: A progress report, 70 Mich L R 1004, 1005 (1972).]
The state courts also followed the general rule that attorney fees were not permitted in the absence of a statutory provision to the contrary or an express agreement of the parties. See Stone v Jeffres, 208 So 2d 827, 828-829 (Fla, 1968); Keel v Covey, 206 Okla 128, 132; 241 P2d 954 (1952); Vonachen v Independent Lumber, 172 Kan 545, 547; 241 P2d 775 (1952); Abramson v Abramson, 161 Neb 782, 793; 74 NW2d 919 (1956); Harris v Short, 253 Iowa 1206, 1208; 115 NW2d 865 (1962); Colvin v Superior Equipment Co, 96 Ariz 113, 122; 392 P2d 778 (1964). Some state courts, pre-1970, while acknowledging the general rule, recognized the common-fund exception. See Ewing v First Nat‘l Bank of Atlanta, 209 Ga 932, 933; 76 SE2d 791 (1953); Hamilton v Liberty Nat‘l Life Ins Co, 207 So 2d 472, 477 (Fla App, 1968). Other state courts simply recognized the general power of a court of equity to award attorney fees under some circumstances. See Gilbert v Hoisting & Portable Engineers, 237 Or 130, 141; 390 P2d 320 (1964); Low v Low, 255 Ala 536, 540; 52 So 2d 218 (1951), overruled on other grounds Starr v Starr, 293 Ala 204; 301 So 2d 78 (1974).
The following items may be taxed and awarded as costs unless otherwise directed:
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(6) Any attorney fees authorized by statute or by court rule.