Jeremy Greenhouse

The Minnesota-based law firm of LEVENTHAL pllc specializes, if you will, in general civil litigation. Put a different way, we don’t specialize very much.

If we did, “lake law” might be a tempting body of water law because our state has 10,000 or more of them. And the connection between many Minnesotans and their lakes is an intense bond which, from time to time, can cause intense conflict and bitterly fought civil litigation.

But, when it comes to environmental law, Minnesota Litigator and LEVENTHAL pllc have a healthy phobia of getting in over our heads. We are therefore delighted to be able to pass on the analysis of Minnesota environmental lawyer, Jeremy Greenhouse, on an important environmental case of local but broad public interest: White Bear Lake Restoration Association v. Minnesota Department of Natural Resources (“DNR”):

Thanks for the opportunity to comment on this important environmental law decision. Full disclosure: I represented the Minnesota Chamber of Commerce in this case, co-drafting the Chamber’s amicus brief in support of the DNR, but my comments here are my own and do not necessarily represent the Chambers’ position on the issues at hand. 

The decision addressed head-on two issues that have been regularly discussed in my practice as an environmental attorney: (1) the interplay between sections 116B.03 and 116B.10 of the Minnesota Environmental Rights Act (MERA), and (2) whether the public trust doctrine reaches natural resources beyond navigable waters and the underlying soil.

The first issue, MERA, was a pure question of statutory interpretation. Section 116B.03, subd. 1 establishes a cause of action that any person residing in the state can bring against “any person” for the protection of natural resources; to a successful plaintiff, the court can grant direct equitable relief necessary to protect the natural resources. Minn. Stat. § 116B.07.  Section 116B.10, on the other hand, establishes a cause of action against a state agency that has issued an environmental quality permit where the plaintiff claims the permit is inadequate to protect natural resources. However, under section 116B.10, subd. 3, the only available relief for a successful plaintiff (apart from emergency temporary injunctive relief) is for the court to remit the matter to the agency to for further administrative proceedings. Understandably, a plaintiff challenging an agency permit would prefer to have access to the broader court-ordered relief under section 116B.03, rather than having the matter sent back to the agency that issued the challenged permit under 116B.10.

The district court in the White Bear Lake case held that the plaintiffs could sue the DNR over the inadequacy of its water appropriation permits under section 116B.03 and were not required to proceed under section 116B.10. Accordingly, the court could and did grant direct relief, right down to dictating the times of year that residents in the Northeast Metro area could operate lawn sprinklers. On appeal, the DNR argued, convincingly, in my opinion, that the court’s interpretation of MERA effectively rendered section 116B.10 of no effect, contravening principles of statutory interpretation. The court of appeals agreed, and I think footnote 9 of the opinion nicely highlights the sorts of practical problems that would face permit holders if permits could be challenged under section 116B.03:

We observe in passing that, if section 116B.03 relief is available in this circumstance, then the multitude of certiorari appeals concerning mining permits, pipeline-construction permits, and the like will never be final so long as there is a person or entity with a district court filing fee who can state a colorable claim to a district court that the agency permit allows the pollution, impairment, or destruction of natural resources. If respondents’ construction of section 116B.03 is accepted, district courts will, in the future, be reviewing agency-issued environmental quality standards, licenses, permits, and the like and will be authorized to issue remedies outside of the ordinary administrative process established by the legislature. We cannot see in section 116B.03 such a disruptive and far-ranging authorization of the exercise of court jurisdiction.

With regard to the pubic trust doctrine, this ancient cause of action, which in many ways was rendered obsolete upon the early-1970s dawn of modern environmental law and environmental rights statutes such as MERA, has been making a solid comeback.  The core doctrine is undisputed, holding that the state, in its sovereign capacity, holds absolute title to all navigable waters and the soil under them for common use. Where the public trust doctrine has been making a comeback is with plaintiffs trying to expand the doctrine’s scope to other natural resources. Most recently groups such as Our Children’s Trust have brought actions in state and federal courts across the country arguing that the public trust doctrine applies to the atmosphere and can be used as a basis to force government action on climate change. Such a case was brought in Minnesota in 2012, and the Minnesota Court of Appeals took a conservative position, holding that the doctrine had never been expanded to resources other than navigable water in Minnesota and that the court of appeals was not in the business of creating “an entirely new common law cause of action.”  Minnesota in Aronow v. State, 2012 Minn. Dist. LEXIS 171 (Minn. Ct. App. 2012).

This is essentially the position the court took in White Bear Lake in refusing to extend the public trust doctrine to cover groundwater, writing:  

As an error-correcting court, it is beyond our authority to change the law. That power, if it is to be exercised by the judicial branch, is properly vested in the Minnesota Supreme Court

Considering the court of appeals’ repeated punt to the supreme court, the importance of the environmental law issues at hand, and the bristling dissent by Judge Bratvold, I would not be surprised if this case was appealed to and taken up by the Minnesota Supreme Court.

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