Anatomy of a Green Gavel
John D. Voelker upheld a Detroit air pollution ordinance 11 years before the Clean Air Act
by Drew YoungeDyke

 In a recent article for Michigan Trout and Riverwatch, I speculated that Justice John D. Voelker, who wrote Trout Madness and Anatomy of a Murder under the pen name of Robert Traver, probably would have earned a “Green Gavel” or two; after all, he was a trout fisherman. Justice Voelker served on the Michigan Supreme Court from 1956 to 1960, a little over twenty years before the era covered by the Michigan League of Conservation Voters’ new Green Gavels program, which evaluates environmental cases decided by the Court since 1982.

Well, as it turns out, I was right. Justice Voelker wrote many opinions during his time on the Court, in cases ranging from auto accidents to divorces, with his characteristic wit known to anyone who has ever read one of his books. The 1959 case of Port Huron Cement Company v. City of Detroit was no exception, when Justice Voelker wrote the Court’s opinion about a Detroit air pollution ordinance.

Prior to the 1970 Clean Air Act, there were no federal air quality standards. However, the problem of air pollution was already recognized and some cities and states were enacting their own air quality laws. Detroit was one such city, enacting a smoke abatement ordinance which prohibited smoke emissions over a certain density. Two steamers owned by the Port Huron Cement Company violated this ordinance while docked at the port of Detroit.

Detroit filed a complaint, and the company filed a lawsuit to block the city from enforcing its ordinance, arguing that federal laws regulating interstate commerce pre-empted the city from enforcing its own air pollution ordinance. Pre-emption occurs when the federal government regulates an area of law so fully that there is no room for state or local regulation. Justice Voelker had to decide whether or not Detroit’s ordinance was pre-empted by federal interstate commerce regulations.

To do this, Voelker broke the case down into three issues: 1) whether Detroit’s ordinance conflicted with any federal ordinances, 2) whether Detroit’s ordinance sought to regulate interstate commerce, and 3) whether Detroit’s ordinance was reasonable.

Voelker decided that Detroit’s air pollution ordinance did not conflict with any federal ordinances and that it only incidentally affected interstate commerce, as its primary purpose was to protect the health of Detroit residents. It was in Voelker’s analysis of the third issue, though, where his thoughtful wit really shined.

This son of the U.P., who had written so extensively about his native pine-covered peninsula, betrayed some of the angst that many feel when compelled to leave the northwoods for the cities of the south, like Lansing or Detroit, and in doing so identified problems and solutions which still exist as succinctly as anyone could. He wrote:

…we reluctantly realize that the pastoral pine-scented days of yore are gone forever, and that our society has become dependent upon vast conglomerates of power of which smoke is all too frequently an unwanted by-product … It does not follow, however, that if we cannot have smokeless cities that men must compose themselves and dwell in an ever-deepening pall of smoke … [T]his ordinance concededly seeks to outlaw only the emission of smoke of such density that can readily be prevented by the use of modern smoke control equipment. All it costs is money.

Justice Voelker upheld the Detroit air pollution ordinance and for that, I am sure, he would have earned himself a Green Gavel. The United States Supreme Court even affirmed his decision in 1960. Voelker also identified an issue with which we still struggle, over fifty years later, as the EPA attempts to control air pollution which “can readily be prevented by modern … equipment,” in the face of opposition from those who believe that short-term marginal profits are a higher priority than the quality of the air we breathe and the health of those who breathe it.

Over a decade before the Clean Air Act was enacted, Justice Voelker predicted it and upheld the ability of Detroit to protect its citizens until then, writing:

We concede that this subject is one that might well call for uniform legislation of federal scope, but until that happens we are not persuaded that our citizens must patriotically gag, choke and grope with obedient resignation until that happy day arrives.

Just as his pen name Robert Traver did in novels like Anatomy of a Murder, Justice Voelker addressed a serious topic with dry wit as accurate as the lines he cast on Frenchman’s Pond, as if the very fact that we even have to debate the topic is so absurd that it requires some measure of humor to adequately address it. In doing so, he also identified the solution to solving environmental problems in his day and ours: deciding our priorities. After all, once we do that, “all it costs is money.” 

Of Judges and Rivers
By Drew YoungeDyke
This article first appeared in Riverwatch, published by the Anglers of the AuSable, and in Michigan Trout, published by the Michigan chapter of Trout Unlimited.

When you were waist-deep in your favorite river on Opening Day, you may have recalled literature you’ve read which described the scene before you. You may have thought of something from Jerry Dennis, Tom McGuane, Jim Harrison, or Ernest Hemingway. Maybe you recalled the following Robert Traver line from the intro to Trout Madness: “For lawyers, like all men, may be divided into two parts: those who fish and those who do not.”

Well, probably not, but Traver was the pen name of Michigan Supreme Court Justice John D. Voelker.  The Michigan League of Conservation Voters actually put that theory to the test this Spring with its newest accountability tool, Green Gavels, which summarized and rated every conservation and environmental decision the Michigan Supreme Court has made in the last thirty years.

Michigan LCV has partnered with faculty and students from the University of Michigan Law School (Voelker’s alma mater) to present Michigan Supreme Court decisions in an easily understood format. Students have researched and summarized cases dating back to 1982, and Michigan LCV applied an analysis to the summaries to help readers quickly understand the impact that the Court can have on Michigan’s natural resources. The results were published online at www.michiganlcv.org/greengavels shortly after the trout opener. 

Anglers know as well as any the role that judicial decisions can play in conservation. It is anglers who see dead fish on the banks after a dam releases sediment, a rainbow-colored sheen after fuel is spilled, or foam gathered against a log after surface runoff drains who-knows-what into the streams we fish. Angler organizations are often the first to challenge a permit which will threaten a river and enforce a permit which will save one. 

The Anglers of the AuSable v. DEQ decision was a defining moment in conservation and Michigan law as to how we protect our rivers from pollution. The case examined whether Merit Energy could clean one watershed by discharging partially-contaminated into another, and whether citizens could sue to block a permit which would allow it. In a 2010 decision authored by Justice Alton Thomas Davis, the Court ruled that citizens could challenge a permit under the Michigan Environmental Protection Act and that discharging contaminated water into the AuSauble watershed was an unreasonable use of water. After the 2010 elections, though - in which Justice Davis lost and a new anti-conservation majority was elected - the Court vacated Justice Davis's opinion in April 2011. 

It has not always been this way, though: in 1979, the Court ruled in favor of the West Michigan Environmental Council, the Pigeon River County Association, Trout Unlimited and other groups to deny permits which would have allowed oil and natural gas drilling in the Pigeon River Country State Forest. It wasn’t until after the legislature threatened to gut the Michigan Environmental Protection Act that drilling was eventually allowed, and the long fight over drilling which preceded the WMEAC v. NRC decision helped to establish the Michigan Natural Resources Trust Fund as a compromise in 1976. In fact, Justice Voelker’s “Testament of a Fisherman,” made it into the court record in that case when read by angler Dave Smethurst. When Voelker found out that his writing made it into the record, he exclaimed, “We got the sons-a-bitches, didn’t we?”

While Green Gavels will not initially cover cases dating back to Voelker’s tenure on the Court, I’m sure that he would have earned a “Green Gavel” or two.  This tool is retrospective, but it will inform conservation-minded citizens on issues about which they care deeply. By going back 30 years, it will survey every conservation decision made by every sitting Michigan Supreme Court justice. Citizens will not only be able to understand the impact the Court can have on conservation, but they’ll also be able to see the impact that each sitting justice has had on conservation. Justices will have individual profile pages which list how they ruled in each case, and a scoreboard which shows all of their ratings together.

So that citizens need not be legal scholars to understand Green Gavels, Michigan LCV will provide ratings and analyses on cases and judicial decisions, as well as a glossary of any legal terms used. Aldo Leopold once wrote, “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”  While it was tempting to apply that standard to the cases, we recognized that many of them will be decided on legal issues which sometimes have little to do with their ultimate environmental impact. Therefore, we gathered an advisory panel of experienced Michigan attorneys - including a retired Michigan Supreme Court justice - to review our ratings and analyses to ensure that they are fair and objective.

Michigan courts often decide cases with conservation impacts. Few go before the Michigan Supreme Court each year, but those which do have significant impacts. Their decisions impact how all lower courts decide conservation cases, though.
For instance, the Pigeon River Country Association and Trout Unlimited joined in a lawsuit to enforce a consent judgment requiring Golden Lotus’s Song of the Morning Ranch yoga retreat to fully remove a dam which has caused multiple fish kills in its long history, most recently in 2008. Otsego County Circuit Court Judge Dennis Murphy ruled last summer that “remove the dam” means “remove the dam,” but Golden Lotus appealed the decision in hopes that “remove the dam” means “remove part of the dam.” The Court of Appeals denied Golden Lotus’s application to appeal in March. 

In the Upper Peninsula, the National Wildlife Federation, the Keweenaw Bay Indian Community, the Yellow Dog Watershed Preserve, and Save the Wild UP are opposing the Kennecott Eagle Rock sulfide mine because it is being dug directly beneath the headwaters of the Salmon Trout River, the spawning grounds of Lake Superior’s rare coaster brook trout. Conservationists worry that acid drainagefrom the waste rock produced by the mine could leach into the river and that the roof could collapse beneath the headwaters. They are appealing Ingham County Circuit Court Judge Paula Manderfield’s decision to deny their challenge.  Kennecott has already blasted into Eagle Rock, a spiritual Ojibwe site. 

Whether this particular cases make it to the Michigan Supreme Court or not, it is important for Michigan citizens  to know the impact the Court has through cases like these because more will certainly come in the future. In fact, just last week, the Court decided that the DEQ could hold municipalities responsible for preventing raw sewage from flowing into the Great Lakes. 

Unfortunately, many Michigan residents know very little about our Supreme Court.  Green Gavels will bridge that information gap by providing citizens across the state with an objective tool to gauge the impact of sitting Supreme Court justices, and our rivers and streams will be better off for it. 

Drew YoungeDyke is the Policy & Communications Specialist for the Michigan League of Conservation Voters, a lawyer, and an angler.  

Michigan LCV's Green Gavels Rates Michigan Supreme Court on Conservation Cases
by Drew YoungeDyke

ANN ARBOR --- The Michigan League of Conservation Voters (LCV), in cooperation with the Environmental Law and Policy Program at the University of Michigan Law School, has evaluated every Michigan Supreme Court decision over the past 30 years for their impacts on conservation and environmental protection. Following that analysis, Michigan LCV worked with a bipartisan advisory panel to apply ratings - red, green, or yellow gavels - to each relevant case so Michigan citizens can quickly gauge the conservation impact of each case and each justice’s opinion.

It is now available to every Michigander online at www.michiganlcv.org/greengavels.

“Green Gavels pulls back the heavy velvet curtains that have surrounded the Michigan Supreme Court for so long and allows citizens to look objectively at how each decision impacts our land, air, and water,” said Michigan LCV Executive Director Lisa Wozniak.

University of Michigan Law students, under the supervision of Professor David Uhlmann, researched and wrote objective summaries of every relevant case. Professor Uhlmann previously served as chief of the Environmental Crimes Section at the U.S. Department of Justice during the Clinton and Bush administrations.

"Judicial decisions play a significant role in environmental protection by ensuring that our environmental laws are properly implemented. The Green Gavels project will provide greater understanding about the role of the courts in our environmental law system and enable voters to make choices that better reflect their environmental values," said Professor David Uhlmann.

Attorneys on staff at Michigan LCV applied positive, neutral, or negative ratings to each case and to each justice’s rulings. Ratings were then peer-reviewed by the bipartisan advisory panel. The University of Michigan Law School did not participate in the rating process and takes no position regarding support or opposition for any judicial candidates.

Michigan LCV already grades the State Legislature and Governor Snyder through its Legislative Scorecard and “How Green Is Your Governor?” programs, respectively. Green Gavels extends this work to the judicial branch, thereby finally holding each branch of state government accountable, the only conservation organization in the state to do so.

“The Supreme Court’s decisions touch every trout stream, every forest, every park, and every inch of Great Lakes shoreline,” said Tom Baird, a Member of the Board of Directors for the Anglers of the Au Sable and one of the lead attorneys on the landmark Anglers of the Au Sable v. DEQ Supreme Court case in 2010. “Green Gavels is a much-needed project. People need to know the impact that justices have on conservation.”

The Michigan League of Conservation Voters, a 501(C)(4) nonprofit organization, is the leading political voice for protecting Michigan’s environment. Green Gavels can be found on the Michigan LCV website at www.michiganlcv.org/ 

State Reps Want to Drill Last Protected Wilderness in the Lower Peninsula
by Drew YoungeDyke

This post originally appeared on the Michigan League of Conservation Voters blog. Republished with permission.

The Michigan Constitution directs the legislature to protect natural resources as a "paramount" concern to the people of Michigan. Paramount means "above all else," the highest priority. 

Instead, the state House Natural Gas Subcommittee, chaired by Rep. Aric Nesbitt (R - Lawton), released a report on April 24 which recommends "drilling and extraction of minerals in currently prohibited areas."

If that quote doesn't outrage you, it should. There are very few truly remote, wild places in the Lower Peninsula that offer the solitude and natural connection sought by hunters, anglers, campers, and hikers, and the habitat required to preserve healthy and abundant fish and wildlife communities. Those few places exist only because they were deliberately set aside from gas and oil development. They include places like the Jordan River Valley, the Mason Tract, and the Pigeon River Country. 

These places are located, however, in the middle of a swath of natural gas and oil deposits that span the northern Lower Peninsula. Wells have been drilled and haul roads have been built through almost every patch of private and public land bigger than 40 acres throughout the region, except for these few unique protected places.

The recommendation in the Natural Gas Subcommittee's report would open these lands to drilling and erase the last pockets of true semiwilderness in the Lower Peninsula. In doing so, this recommendation indicates a profound ignorance of the history of conservation in Michigan, because we've already had this debate. The system currently in place is a compromise that grew out of decades of dispute that resulted in the Natural Resources Trust Fund. 

The Pigeon River Country debate over drilling in the 1970s reached all the way to the Michigan Supreme Court. The Court prohibited drilling, but subsequent legislation forced a compromise which allowed limited drilling in the southern third of the 105,000-acre forest and prohibited it in the northern two-thirds. Drilling is also prohibited in the 18,000-acre Jordan River Valley, where in 2007 the DNR acquired mineral rights to the valley through a mineral exchange in order to prevent drilling. The 4,700-acre Mason Tract, along the South Branch of the AuSable River, was donated to the state by George Mason in 1954. Attempts to drill beneath the Mason Tract from an adjacent parcel resulted in a permit denial by a federal judge in 2008.

The Natural Gas Subcommittee's recommendation to open these unique places to drilling indicates either complete ignorance of the debates, the lawsuits, and the compromises that went into protecting them or a callous disregard for the hunters and anglers who love them. Unfortunately, the latter seems more likely; this recommendation is just the latest example of a larger agenda to open up the last wild places in the nation to oil and gas development, as evidenced by the Wilderness and Roadless Area Release Act introduced in the U.S. House and Senate.

Michigan conservationists have worked for generations to protect the last few pockets of the closest thing we have to backcountry in the Lower Peninsula. We can't rest on their laurels, though. Proposals like this tell us that some politicians will stop at nothing to destroy the last best places in order to raid every last drop of fossil fuel in Michigan. Those of us who care about these places - the hunters, anglers, hikers, campers, backpackers and birders - have to oppose bad ideas like this loudly and vigorously. 

If you'd like to help us fight proposals to open these lands to drilling, you can sign up here for Michigan LCV Action Alerts.