COA Opinion: The relief granted to MDEQ against Worth Township for private septic system leaks was authorized by NREPA and not a Headlee violation
On remand, the Court of Appeals in Department of Environmental Quality v Township of Worth considered whether remedial measures, fines, and attorney fees imposed against Worth Township for allowing private septic systems to leak into Lake Huron were authorized under Michigan’s Natural Resources and Environmental Protection Act (“NREPA”) or violated the Headlee Amendment to the Michigan Constitution. The Court of Appeals held that NREPA did authorize the ordered remedies and that the remedial measures did not violate the Headlee Amendment.
When several private septic systems in Worth Township began to fail and to release waste into Lake Huron, the Department of Environmental Quality (“DEQ”) filed suit under NREPA to force the township to construct a public sanitary-sewerage system. The trial court established a schedule for implementing corrective action, imposed a $60,000 fine on the township, and awarded attorney fees. The Court of Appeals reversed on the basis that the Township could not be held responsible, but the Supreme Court disagreed and remanded for a ruling on whether the ordered remedies violated the Headlee Amendment and were authorized under NREPA.
Michigan law authorizes a trial court faced with a violation of NREPA to “restrain the violation and to require compliance.” The trial court was restraining the township’s violations and requiring compliance by imposing remedial measures, fines and attorney fees. NREPA authorized those remedies. The Headlee Amendment prohibits the state from statutorily shifting the burden of performing and funding essential services from the state level to local governments. While NREPA does mandate local governments take action to prevent discharge of raw sewage, this responsibility was never borne by the states and therefore the act does not shift any financial burden away from the state.