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Municipal Environmental Law 101

May 29, 2015 / in

Municipal attorneys must be jack-of-all-trades.  One of the trades they must now undertake is environmental law.  I recently spoke at the winter meeting of the Michigan Local Government Managers Association about some basic municipal environmental law issues.  A principal issue in municipal environmental law is old gas stations.  Another issue is contaminated sites from legacy industries.  Read More→

 

The Divisibility Defense at Contaminated Sites

March 23, 2012 / in Written by Jeff Haynes

Although it remains difficult to demonstrate the divisibility defense for liability at contaminated sites, a case recently litigated by Beier Howlett attorneys demonstrates that the factors that contribute to this defense can be used to persuade a court to reduce a defendant’s share of the remediation costs.

Here, a federal judge found that liability was not divisible, but nevertheless held that Beier Howlett’s client, Royal Oak Industries, should be allocated a minimal share of liability because it ran a “cleaner operation” than previous owners of the site.

For decades, courts and lawyers presumed that liability under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was joint, which meant that a person would be liable for all remediation costs at a contaminated site no matter how much contamination the person actually caused.  In May 2009, the United States Supreme Court in Burlington Northern Railroad v. United States overturned this presumption, holding that liable persons may attempt to prove the reasonable basis by which their liability should be “several” or “divisible,” which means that the person’s share of remediation costs should be based on the amount of contamination the person contributed to the
site.

One of the first cases to be tried under the Supreme Court’s new formulation, entitled ITT Industries, Inc. v. BorgWarner, Inc., involved a site in Bronson, Michigan, contaminated with trichloroethylene (an industrial degreaser) from two nearby industrial sites and contaminated with cutting oils and metals from prior operations at the site.  The defendants (including Royal Oak Industries) each asserted that the environmental harm from their operations could be divided from harm caused by others.

Nevertheless, the court allocated liability using equitable principles of fairness to find that the “cleaner operation” of Royal Oak Industries resulted in a 2% share of liability compared with the 38% share of the former site owner and 60% share of the off-site operations.

The ITT Industries decision suggests that proving the divisibility defense remains difficult, even after the Supreme Court cleared the way for divisibility in Burlington Northern.  Another lesson of ITT Industries is that the factors that contribute to a divisibility defense can be used to persuade a court to reduce a defendant’s share through equitable allocation.

Jeff Haynes, chair of Beier Howlett’s environmental practice group, tried the case with assistance from Beier Howlett attorney Keith Jablonski and the environmental practice group’s paralegal, Doreen Defauw.

 

Michigan Supreme Court Strikes Down “Very Serious Consequences” Zoning Test

July 15, 2010 / in Environmental Law Written by Jeff Haynes

On July 15, the Michigan Supreme Court discarded an 80-year-old test that granted special rights to owners of property containing extractable resources, such as sand and gravel, to challenge local zoning ordinances.

The test, known as the “no very serious consequences” rule, allowed property owners to show that a zoning ordinance is unreasonable if extracting the natural resources would not cause very serious consequences, contrary to the usual rule that zoning ordinances are valid if reasonable.  In Kyser v. Kasson Twp., the Supreme Court rejected the test, which now puts all property owners on an equal footing when challenging zoning ordinances.

Plaintiff Kyser owns a parcel containing sand and gravel that is outside but adjacent to the township’s gravel mining district.  The trial court found that rezoning her parcel within the gravel district would cause no very serious consequences to traffic safety, traffic noise, property values, residential development and additional rezoning applications.The Supreme Court determined that zoning, as a local legislative function, plans and controls a community’s future development.  Zoning ordinances are presumed to be reasonable.  Discussing the history of the “no very serious consequences” rule, the Court found that the rule contradicted the constitutional requirement that challengers prove that a zoning ordinance be unreasonable in order to be invalid.  The Court held that extracting natural resources from land is not a preferred use to other types of use and there is no presumption that the public interest is served by allowing extraction of sand and gravel.

Finally, the Court found that the legislature is constitutionally required to protect and manage Michigan’s natural resources and that the legislature has enabled local governments to regulate extraction of natural resources.The effect of Kyser is to strengthen the powers of local government in zoning decisions.  The implication is that sand and gravel and other extractive businesses will have much more difficulty in rezoning property for extractive uses.  They will have to focus on the reasonableness of a zoning ordinance as a whole, rather than only the impact of the use of their parcels.

For more information, contact the Beier Howlett Environmental Law Practice Group at (248) 645-9400 or email Jeff Haynes at jhaynes@bhlaw.us.com