By Ben Solis
Gognwer News Service
The Michigan Supreme Court recently vacated a Court of Appeals order invalidating state rules setting limits on PFAS, with orders from the high court to reconsider key factors in the lawsuit.
The move was essentially a win for the Department of Environment, Great Lakes and Energy, which appealed the ruling that brought 3M Company v. EGLE (MSC Docket No. 166189) before the high court. But the majority, consisting of Justice Richard Bernstein, Justice Megan Cavanagh, Justice Elizabeth Welch, and Justice Kyra Harris Bolden, did not dispose of the case, remanding it back to the appellate panel to parse key questions.
Chief Justice Elizabeth Clement and Justice Brian Zahra said they would have denied leave to appeal. Justice Kimberly Thomas did not participate in the case because it was considered by the court before she was elected to the bench.
The lawsuit came to the high court following a divided Court of Appeals holding that said the department failed to issue a proper regulatory impact statement as the Administrative Procedures Act requires and as a result the rules setting limits on PFAS were invalid (See Gongwer Michigan Report, August 23, 2023).
Although EGLE issued a regulatory impact statement with the rules, it did not address costs related to groundwater cleanup, which the rules would affect.
Justices of the high court heard oral arguments in the matter in November 2024 (See Gongwer Michigan Report, November 13, 2024).
EGLE argued it was not required to estimate the costs to businesses that would occur because it lacked the necessary information to make an estimate. It also argued that the agency only needed an impact statement as it related to the proposed rule, which dealt with drinking water, and not on the groundwater cleanup that could be required because of the new rule.
The majority on the Court of Appeals disagreed, and oral arguments were heard before the high court in November 2024.
The order issued last week remanded the case to the Court of Appeals to consider whether 3M’s challenge to the rules became moot when the EGLE promulgated an updated rule set; whether any exception to the mootness doctrine is applicable; whether 3M failed to exhaust its administrative remedies by not requesting a declaratory ruling from the agency as to the validity of the challenged rule before commencing the lawsuit; and if the administrative remedies were not properly exhausted, what effect, if any, that had on the justiciability of this lawsuit, including 3M’s standing and the court’s subject-matter jurisdiction over the claims presented.
Gognwer News Service
The Michigan Supreme Court recently vacated a Court of Appeals order invalidating state rules setting limits on PFAS, with orders from the high court to reconsider key factors in the lawsuit.
The move was essentially a win for the Department of Environment, Great Lakes and Energy, which appealed the ruling that brought 3M Company v. EGLE (MSC Docket No. 166189) before the high court. But the majority, consisting of Justice Richard Bernstein, Justice Megan Cavanagh, Justice Elizabeth Welch, and Justice Kyra Harris Bolden, did not dispose of the case, remanding it back to the appellate panel to parse key questions.
Chief Justice Elizabeth Clement and Justice Brian Zahra said they would have denied leave to appeal. Justice Kimberly Thomas did not participate in the case because it was considered by the court before she was elected to the bench.
The lawsuit came to the high court following a divided Court of Appeals holding that said the department failed to issue a proper regulatory impact statement as the Administrative Procedures Act requires and as a result the rules setting limits on PFAS were invalid (See Gongwer Michigan Report, August 23, 2023).
Although EGLE issued a regulatory impact statement with the rules, it did not address costs related to groundwater cleanup, which the rules would affect.
Justices of the high court heard oral arguments in the matter in November 2024 (See Gongwer Michigan Report, November 13, 2024).
EGLE argued it was not required to estimate the costs to businesses that would occur because it lacked the necessary information to make an estimate. It also argued that the agency only needed an impact statement as it related to the proposed rule, which dealt with drinking water, and not on the groundwater cleanup that could be required because of the new rule.
The majority on the Court of Appeals disagreed, and oral arguments were heard before the high court in November 2024.
The order issued last week remanded the case to the Court of Appeals to consider whether 3M’s challenge to the rules became moot when the EGLE promulgated an updated rule set; whether any exception to the mootness doctrine is applicable; whether 3M failed to exhaust its administrative remedies by not requesting a declaratory ruling from the agency as to the validity of the challenged rule before commencing the lawsuit; and if the administrative remedies were not properly exhausted, what effect, if any, that had on the justiciability of this lawsuit, including 3M’s standing and the court’s subject-matter jurisdiction over the claims presented.
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