DAVIS, J.

In this case we determine whether defendant Merit Energy Company's plan to discharge contaminated water from an environmental cleanup site in the Manistee River watershed into a previously unpolluted site in the AuSable River watershed is an allowable use of water. We also determine in this case whether the Michigan Department of Environmental Quality (DEQ) (which is now the Department of Natural Resources and Environment) can be sustained as a defendant in an action brought under the Michigan environmental protection act (MEPA), MCL 324.1701 et seq., when the DEQ is alleged to have authorized activity that will harm the environment.

We hold that Merit's discharge plan is not an allowable use of water because it is manifestly unreasonable, and we further hold that the DEQ can be sustained as a defendant in a MEPA action when the DEQ has issued a permit for activity that it is alleged will cause environmental harm. Accordingly, we reverse the Court of Appeals' judgment in part and remand the case for reinstatement of the trial court's decision holding the DEQ accountable for violating MEPA.

I. FACTS AND PROCEDURAL HISTORY

This case arises out of Merit's proposed plan to discharge treated, but still partially contaminated, water from the Manistee River watershed into the AuSable River water system in an effort to clean a plume of contaminated groundwater.

In 2004, Merit acquired the Hayes 22 Central Production Facility (CPF) located in Otsego County, Michigan. As a condition to purchasing the CPF, Merit entered into a settlement agreement with the DEQ to remediate the plume of contaminated groundwater that had originated from the CPF.

The exact size of the plume, which at the time was continuing to expand, is unknown. The plume contains benzene, toluene, ethylbenzene, and xylenes and chlorides contained in brine, among other contaminants. The plume is known to have contaminated several residential drinking wells and may have contaminated other residential wells as it continued to expand.

Merit evaluated a number of options for remediation and ultimately chose air stripping—a process that forces a stream of air through water, causing hydrocarbons to evaporate.1 Merit submitted a corrective action plan to the DEQ to remediate 1.15 million gallons of plume water a day through the use of air stripping.

The plan was to send the 1.15 million gallons a day through a 1.3-mile pipeline from the air-stripping site to be discharged into Kolke Creek. Kolke Creek forms the headwater system for the AuSable River watershed. Kolke Creek feeds into Bradford Creek, Lynn Lake, and the AuSable River.2

The DEQ approved Merit's corrective action plan and issued a general permit and certificate of coverage allowing discharge of treated water from the air stripper into the wetland area flowing into Kolke Creek. The DEQ also granted Merit an easement through state-owned land to allow Merit to construct the pipeline from the air stripper to the discharge point.

Plaintiffs filed a complaint against Merit and the DEQ in the Otsego County Circuit Court. Plaintiffs alleged violations of surface-water law, riparian law, and MEPA. Plaintiffs sought an injunction against the discharge plan.

After a bench trial on plaintiffs' complaint, the trial court issued an opinion and injunction preventing Merit from discharging the air-stripped water into Kolke Creek. The court made detailed findings of fact and concluded that the proposed discharge plan would severely harm the AuSable River water system because of the increased flow of water and the increased level of substances not previously found in Kolke Creek.3 It applied the "reasonable use balancing test" from Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc., 269 Mich.App. 25, 709 N.W.2d 174 (2005).

In applying the reasonable-use balancing test from Nestlé, the trial court concluded that Merit's proposed amount of discharge constituted an unreasonable use. The court ruled that the proposed discharge, and the DEQ's authorization of the discharge, violated MEPA. However, in its injunction preventing the discharge, the court left open the possibility that Merit could discharge treated water into Kolke Creek at a lower rate that might be considered reasonable under the reasonable-use balancing test.4

All parties appealed in the Court of Appeals. In a unanimous opinion, the Court of Appeals affirmed the trial court's decision regarding the reasonableness of Merit's proposed discharge plan. Anglers of the AuSable, Inc. v. Dep't of Environmental Quality, 283 Mich.App. 115, 770 N.W.2d 359 (2009). The Court applied the reasonable-use balancing test and noted that the trial court had left open the possibility that Merit could discharge treated water at a lower, more reasonable rate. Id. at 136-137, 770 N.W.2d 359. The Court of Appeals also unanimously dismissed the DEQ as a defendant, applying this Court's precedent from Preserve the Dunes, Inc. v. Dep't of Environmental Quality, 471 Mich. 508, 684 N.W.2d 847 (2004).

Plaintiffs sought leave to appeal in this Court. We granted leave to appeal, asking the parties to discuss, among other issues, whether Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc., 479 Mich. 280, 737 N.W.2d 447 (2007), and Preserve the Dunes were correctly decided.5

II. STANDARD OF REVIEW

We review a trial court's factual findings for clear error and its legal conclusions de novo. Hendee v. Putnam Twp., 486 Mich. 556, 566, 786 N.W.2d 521 (2010). Whether this Court's decision in a previous case should be overruled is a question of law that this Court reviews de novo. Bush v. Shabahang, 484 Mich. 156, 164, 772 N.W.2d 272 (2009).

III. ANALYSIS

A. PRESERVE THE DUNES v. DEP'T OF ENVIRONMENTAL QUALITY

In our order granting leave to appeal, we asked the parties to address whether this Court's opinion in Preserve the Dunes was correctly decided. After further review of the Preserve the Dunes decision, we conclude that it was decided incorrectly and, accordingly, we overrule it.

Preserve the Dunes involved a group of citizens suing the DEQ for authorizing a permit for a sand dune mining operation6 in violation of the sand dune mining act (SDMA). MCL 324.63701 et seq. The dune that was to be mined had previously been designated as a protected dune that could not be mined unless one of two exceptions contained in the SDMA applied. The two exceptions were not applicable in that case; therefore, the DEQ's permit allowing the mining operation on the protected dune violated the law.

The concerned citizens in that case filed a lawsuit against the DEQ under MEPA to protect "the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction." MCL 324.1701(1). The majority in Preserve the Dunes held that reviewing the DEQ's permit decisions was outside the judicial authority under MEPA. Preserve the Dunes, 471 Mich. at 519, 684 N.W.2d 847. The majority noted that MEPA provides for a private cause of action regarding damage to the environment. Id. at 516, 684 N.W.2d 847. The majority stated that the DEQ's permit application review was based on technical aspects of the application process, and not damage to the environment itself. Id. at 519, 684 N.W.2d 847. The Court concluded that even if violation of the technical aspects of the application process resulted in environmental damage, that level of causation was not grounds for a private cause of action. The Court stated that the permit process was "unrelated" to any subsequent environmental harm caused by the permitted action. Id.

The Preserve the Dunes dissent correctly concluded that the majority's holding "that permit eligibility is unrelated to whether the conduct permitted will harm the environment is untenable."7 Without a permit from the DEQ, a party such as the mining operator in Preserve the Dunes or Merit in the instant case lacks the authority to commence the conduct that will harm the environment. The permit from the DEQ serves as the trigger for the environmental harm to occur. The permit process is entirely related to the environmental harm that flows from an improvidently granted, or unlawful, permit.

Before a majority of this Court decided Preserve the Dunes, this Court had previously decided other cases in which a permit application had been the subject of a MEPA action. Until Preserve the Dunes, this Court had never ruled that a permit decision was insulated from a MEPA action.8 The majority's decision in Preserve the Dunes frustrated the legislative intent behind MEPA, and it represented a departure from this Court's precedent. As the Preserve the Dunes dissent noted:

Because the Preserve the Dunes opinion violated the legislative intent behind MEPA, and because the opinion conflicted with this Court's caselaw that came before it, we hold that Preserve the Dunes was incorrectly decided to the extent that it insulated the DEQ's permit application process from review under MEPA.

There are further compelling justifications for overruling Preserve the Dunes. The first is that MEPA is a statute that was enacted as part of the environmental protection mandate to the Legislature contained in Article 4, § 52 of Michigan's Constitution. In Ray v. Mason Co. Drain Comm'r, 393 Mich. 294, 304-306, 224 N.W.2d 883 (1975), this Court stated:

The majority's decision in Preserve the Dunes not only violated the Legislature's intent to protect the environment encapsulated in MEPA, it subverted the people's will as expressed in Michigan's constitutional requirement that the Legislature "shall" protect the environment.

Another compelling reason for overruling Preserve the Dunes is that it appears from the instant case that the DEQ has done more than simply issue a permit that would result in the harm of natural resources. It has also granted an easement over state land to facilitate the harmful actions. Under Preserve the Dunes, the DEQ cannot be required to account for its actions. By overruling Preserve the Dunes, this Court can restore the accountability that was intended under MEPA.

Because the Preserve the Dunes decision to insulate DEQ permit decisions from MEPA violated the Legislative intent behind MEPA, conflicted with previous caselaw regarding MEPA, and subverted the will of the people contained in article 4 of Michigan's constitution, we overrule it.9

B. NESTLÉ AND STANDING

In the order granting leave to appeal, we also asked the parties to brief whether Nestlé was correctly decided.10 However, Nestlé has already been overruled in part.

One of the issues in Nestlé was whether the plaintiffs had standing to appear in court to protect property from being affected by the defendant's pumping of groundwater that it intended to bottle and sell. At the time, a majority of this Court held that the plaintiffs only had standing with respect to property that they owned or used, no more. Nestlé, 479 Mich. at 285, 737 N.W.2d 447. The majority relied on the theory of standing adopted in Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 629 N.W.2d 900 (2001). Nestlé, 479 Mich. at 294-295, 737 N.W.2d 447. But this Court has recently explained that statutes granting standing should be applied as written, thus overruling the standing doctrine adopted in Lee and followed in Nestlé. Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed., 487 Mich. 349, 371 & n. 18, 792 N.W.2d 686 (2010) (LSEA). Accordingly, MEPA, which specifies that "any person may maintain an action ... against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction," should be applied as it is written. MCL 324.1701(1) (emphasis added).

We therefore need not address the standing issue from Nestlé. Plaintiffs in this case have interests that differ from the citizenry at large.11 LSEA, 487 Mich. at 359, 792 N.W.2d 686. And, even if they did not, it is clear that under MEPA "any person" has standing to maintain an action protecting Michigan's natural resources; indeed, the Attorney General admitted at oral argument that that was the state's position as well. Because plaintiffs most certainly qualify under the statute's designation of "any person," plaintiffs would have standing regardless of this Court's decision in Nestlé.

C. REASONABLENESS OF THE PROPOSED KOLKE CREEK DISCHARGE

Nonetheless, this Court's decision to overrule Nestlé in LSEA did not affect the reasonable-use balancing test. In its Nestlé opinion, this Court explicitly declined to "pass on the merits" of, among other things, the "reasonable use balancing test" that had been applied by the Court of Appeals.12 Thus, this Court has not passed judgment on the merits of that test.

The parties have agreed that the reasonableness of the water's use is the determining factor in deciding water-use cases,13 and they have also all noted that the facts in this case are distinguishable from those in Nestlé. In Nestlé, the diverted water was potable water being pumped out of the ground, packaged, and sold in many locations in and out of Michigan. In the instant case, contaminated water is being pumped from the ground in one watershed, treated and stripped of hydrocarbons but not fully decontaminated, and then pumped as surface water into a separate, previously uncontaminated watershed.

Plaintiffs focus much of their attention on the seminal Michigan water-law case of Dumont v. Kellogg, 29 Mich. 420 (1874), and its progeny14 for the proposition that water cannot be diverted for an unreasonable use that would damage a riparian owner's use of the waterway. While it is true that Michigan courts have held that water should generally not be diverted from a watershed, we find that argument unpersuasive here. We distinguish Dumont and its progeny on the facts of this case.

Plaintiffs are seeking to protect the AuSable River watershed. Water is not being diverted from the AuSable River watershed in this case. The water that is being diverted is coming from the Manistee River watershed, and the reasonableness of merely diverting water out of the Manistee River watershed is not at issue. Thus, the cases that plaintiffs cite are not helpful on these facts.

It is clear from this Court's water-law precedent cited in both sides' briefs that an unreasonable use of water has never been deemed an allowable use and is not now an allowable use.15 Defendants have presented no authority for the proposition that the diversion of contaminated water from one source to an uncontaminated watershed should be considered reasonable. It would be incongruous to hold that it is reasonable to decontaminate water by contaminating different water.16

Furthermore, it would be unconscionable and destructive for this Court to determine that it is reasonable to spread dangerous contamination throughout Michigan as we have described. The necessarily resulting harm would be spread not only to immediate downstream users but, in the end, to anyone in Michigan who relies, directly or indirectly, on our state's water remaining clean.

Accordingly, we affirm the lower courts' rulings preventing Merit's proposed discharge from the CPF into Kolke Creek.17

IV. CONCLUSION

We hold that Merit's discharge plan is not an allowable use of water because it is manifestly unreasonable. We hold that the DEQ can be sustained as a defendant in a MEPA action for its permitting decisions. We uphold the lower courts' determination that the proposed discharge plan is unreasonable, and we remand the case for reinstatement of the trial court's decision holding the DEQ accountable for violating MEPA.

Affirmed in part, reversed in part, and remanded.

DIANE M. HATHAWAY, J., concurs.

MARILYN J. KELLY, C.J. (concurring).

I concur in parts I, II, III(A), III(B), and IV of the lead opinion. I concur in the result only with respect to part III(C) of the lead opinion. I write separately to articulate my preferred approach to stare decisis.

Even when a decision is wrongly decided, we must apply the doctrine of stare decisis when deciding whether to overrule it. Our analysis should always begin with a presumption that upholding precedent is the preferred course of action.1 That presumption should prevail unless effectively rebutted by the conclusion that a compelling justification exists to overturn it.2 By contrast, when analyzing precedent that itself represents a departure from established caselaw, we should apply a decreased presumption in favor of upholding precedent.3

In determining whether a compelling justification exists to overturn precedent, the Court may consider numerous evaluative criteria, none of which, standing alone, is dispositive. These criteria include, but are not limited to, whether (1) the precedent has proved to be intolerable because it defies practical workability, (2) reliance on the precedent is such that overruling it would cause a special hardship and inequity, (3) related principles of law have so far developed since the precedent was pronounced that no more than a remnant of it has survived, (4) facts and circumstances have so changed, or have come to be seen so differently, that the precedent no longer has significant application or justification, (5) other jurisdictions have decided similar issues in a different manner, (6) upholding the precedent is likely to result in serious detriment prejudicial to public interests, and (7) the prior decision was an abrupt and largely unexplained departure from then-existing precedent.4

Not all of these factors will be applicable in a given case. Nor is there a magic number of factors that must favor overruling a case in order to establish the requisite compelling justification. Rather, the conclusion about overturning the precedent should be reached on a case-by-case basis.

I believe that Preserve the Dunes, Inc. v. Dep't of Environmental Quality5 was wrongly decided with respect to whether the Department of Environmental Quality (DEQ) may be liable for an alleged violation of the Michigan environmental protection act (MEPA) by issuing a permit.6 However, this fact alone does not constitute the requisite compelling justification to overrule the decision. Instead, we must examine additional factors.

First, I consider whether Preserve the Dunes has proved intolerable because it defies practical workability. I believe that it does. The Preserve the Dunes majority held that the DEQ's issuance of a permit is "unrelated to" alleged environmental harm and thus insulated from scrutiny under MEPA.7 This conclusion was directly contrary to a simple reading of MEPA. MCL 324.1701(1) provides, in pertinent part:

Under the act, a plaintiff makes a prima facie case by showing "that the conduct of the defendant ... is likely to ... destroy... natural resources or the public trust in these resources."8

The Preserve the Dunes majority's conclusion that eligibility for a permit is unrelated to whether the conduct permitted will harm the environment is untenable. Issuance of a permit to an ineligible party to engage in an activity that will harm the environment will certainly allow "conduct... likely to pollute, impair, or destroy ... natural resources or the public trust in these resources" under MCL 324.1703(1). Indeed, before Preserve the Dunes, this Court observed that a violation of a permitting procedure can support a prima facie claim under MEPA.9 Thus, by gutting the environmental protections afforded to Michigan citizens by MEPA, Preserve the Dunes mocked our Legislature's intent to prevent environmental harm. Accordingly, Preserve the Dunes was inherently unworkable under the statutory provisions provided by the Legislature.

Second, I consider whether reliance interests weigh in favor of overruling Preserve the Dunes. I conclude that they do. Preserve the Dunes is of relatively recent vintage, having been decided a mere six years ago. Hence, any reliance on its holding has been of limited duration. Moreover, Preserve the Dunes represented a sea change in one area of the law and toppled settled interpretations of MEPA that had existed for nearly 30 years.10 In doing so, Preserve the Dunes disrupted the reliance interests of Michigan citizens who relied on MEPA's provisions to bring suit for alleged environmental pollution, impairment, or destruction.

I recognize that there exists a competing reliance interest in the continuing validity of Preserve the Dunes: that of the DEQ in defending its permitting decisions. Yet Preserve the Dunes' annihilation of the crux of a MEPA complainant's claim—the desire to quell environmental degradation—effectively removed altogether the ability to challenge permitting decisions as allowed by MEPA. I conclude that, while the DEQ's reliance on this interpretation is understandable, it is not sufficient to preclude overruling Preserve the Dunes given the extent of prejudice to those availing themselves of MEPA's straightforward language.

Third, I consider whether related principles of law have developed since Preserve the Dunes was decided. This factor is inapplicable to my stare decisis analysis in this case, as no intervening change in the law further supports or undermines the continuing legitimacy of Preserve the Dunes.

Fourth, I examine whether facts and circumstances have so changed, or have come to be seen so differently, that Preserve the Dunes has been robbed of significant justification. Like the previous factor, I discern no factual or circumstantial changes that counsel for or against overruling Preserve the Dunes. Therefore, this factor is also inapplicable to my analysis.

Fifth, I consider whether other jurisdictions have decided similar issues in a different manner. This factor is likewise inapplicable to my stare decisis analysis. MEPA is unique to our state. Although other states' environmental legislation may share the fundamental underpinnings of MEPA, judicial interpretations thereof have evolved independently of those of other states with similar environmental schemes. Thus, other jurisdictions' interpretations of similar statutes are unhelpful to our analysis in this case.

Sixth, I examine whether upholding Preserve the Dunes is likely to result in serious detriment prejudicial to public interests. This factor weighs heavily in favor of overruling Preserve the Dunes. In one swoop of a pen, the Preserve the Dunes majority obliterated environmental protection statutes enacted by the Legislature. As persuasively noted by Justice DAVIS, MEPA was enacted in response to our state's constitutional commitment to the conservation and development of the natural resources. Our constitution provides:

Furthermore, as we stated in Ray:

Thus, whereas MEPA represents the culmination of the Legislature's deliberative process, Preserve the Dunes undermined the Legislature's decision to allow challenges to both real and potential harms to the environment. The impact of Preserve the Dunes was undoubtedly felt not only by the environment, but by the public. The citizens of Michigan were stripped of their ability to enforce environmental protection mechanisms granted by the Legislature.

Finally, I consider whether Preserve the Dunes represented an abrupt and largely unexplained departure from precedent. I conclude that this factor also weighs heavily in favor of overruling Preserve the Dunes. As previously noted, Preserve the Dunes implicitly overruled numerous previous decisions of this Court interpreting MEPA.13 Those decisions stood as principled interpretations of MEPA until Preserve the Dunes unexpectedly swept them aside decades later. Therefore, Preserve the Dunes represented an abrupt and unexplained departure from precedent.

In summary, Preserve the Dunes (1) is unworkable because it usurped the Legislature's grant of a cause of action regarding environmental harm, (2) caused serious detriment prejudicial to public interests, and (3) represented an abrupt and largely unexplained departure from precedent. Accordingly, I conclude that a compelling justification exists for overruling it.

MICHAEL F. CAVANAGH, J., concurs.

YOUNG, J. (dissenting).

I respectfully, but vigorously, dissent from the extraordinarily lawless and profoundly dangerous lead opinion and from the results reached by a majority of this Court.

This case represents one of the most shocking examples of the assertion of power that is not grounded in the constitution or any statute. This case is simply an empty vehicle to reach desired policy results.1 This is so because this case was moot in June 2010 when the majority inexplicably denied defendants' meritorious motion to dismiss for mootness;2 this case was moot in November 2010 when this Court heard oral arguments on the case, despite its obvious mootness; and this case remains moot today, despite the majority's raw exercise of power in deciding a nonjusticiable case. The lead opinion does not even attempt to respond to this dissent because there are no satisfactory responses. Because I continue to believe that this Court should not decide moot cases, I would dismiss this appeal.

Unwilling to forgo the opportunity to resolve a nonexistent conflict to attack precedent with which they disagree, the lead and concurring opinions overturn this Court's decision in Preserve the Dunes v. Dep't of Environmental Quality3 that the Department of Environmental Quality (DEQ)4 may not be sued under the Michigan environmental protection act (MEPA)5 for issuing a permit. Indeed, the lead and concurring opinions now conclude that the DEQ may be sued even if the permit it issued was already successfully challenged under the appropriate administrative procedures. Furthermore, the lead opinion fashions a new common law rule governing water rights out of whole cloth and without citing any authority for its new categorical rule. Instead, the lead opinion's categorical rule usurps the ability of the DEQ's environmental experts to determine what action appropriately protects the natural resources held in public trust, and it usurps the ability of lower courts to judge the validity of those expert analyses by interposing a categorical rule prohibiting "contamination," regardless of actual harm to the relevant watercourse. Because Michigan law has not heretofore provided for such a categorical rule, I must vigorously dissent from this palpably erroneous decision. Again, the lead opinion reaches its decision on the substantive merits of this case without responding to any of the critiques I make of its argument.

I. FACTS AND PROCEDURAL HISTORY

Defendant Merit Energy Company owns land in the Manistee River watershed that contains a plume of contaminated groundwater. When Merit purchased the land, the contaminated plume already existed and threatened private wells for drinking water. Merit's purchase of the land was contingent on an agreement with the DEQ requiring Merit to remediate the plume. Accordingly, Merit devised a corrective action plan to treat the contaminated water and to discharge the treated water into Kolke Creek, part of the AuSable River watershed. To effect this plan, Merit obtained an easement from the Michigan Department of Natural Resources (DNR)6 to "place, construct, operate, repair and maintain [a] Pipeline" beginning on Merit's property and ending at Kolke Creek. Merit also sought DEQ approval of its plan. The DEQ issued a certificate of coverage (COC), which affirmed that the proposed discharge was consistent with a general permit that allowed "discharges of wastewater contaminated by gasoline and/or related petroleum products. ..." Therefore, Merit received the requisite certification that it could discharge under "a valid national or state permit. ..."7

Plaintiffs include riparian owners along Kolke Creek. They challenged the COC in a contested case hearing pursuant to the Administrative Procedures Act.8 After the administrative referee affirmed the DEQ's decision, plaintiffs appealed by right to the Otsego Circuit Court. In addition to appealing the contested case decision, plaintiffs brought original claims against defendants for alleged MEPA violations and alleged violations of plaintiffs' common law riparian rights. The circuit court separated plaintiffs' appeal of the contested case decision from their original claims and remanded the contested case decision for review by the director of the DEQ. The director affirmed the administrative decision to issue Merit a COC. On appeal, the circuit court vacated the COC because the discharge allowed under the COC contained contaminants beyond those allowed under the general permit the COC purported to enforce. The circuit court's decision invalidating the COC remains in force.9

The circuit court conducted a 13-day bench trial to consider plaintiffs' common law and MEPA claims. The court held that the DNR's proposed easement did not provide Merit with the necessary riparian rights to discharge anything into Kolke Creek.10 The circuit court also concluded that the proposed discharge would violate plaintiffs' riparian rights. In reaching this decision, the court applied the "reasonable use balancing test" that the Court of Appeals articulated in Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc.11 Because "[t]he proposed use is for the benefit of distant non-riparian parcels at the expense of local riparian rights" and because "[t]he delicate ecosystem of Kolke Creek is not a suitable location for the discharge of treated water in the quantities proposed," the court concluded that the proposed discharge would constitute an unreasonable use of Kolke Creek. Accordingly, it enjoined defendants from discharging the treated water into Kolke Creek in the volume proposed, 1.15 million gallons a day. The court also determined that plaintiffs had presented a prima facie MEPA violation with respect to both Merit and the DEQ.

Defendants appealed in the Court of Appeals, and plaintiffs filed a cross-appeal in that court. The DEQ challenged the circuit court's ruling that it could be sued on the theory that its COC violated MEPA. Merit challenged the circuit court's conclusions regarding the scope of the DNR's easement, the application of the "reasonable use balancing test" in determining that the proposed discharge was unreasonable, and the application of MEPA and the common law to the proposed discharge.12 On cross-appeal, plaintiffs argued that the circuit court should not have applied the Nestlé "reasonable use balancing test" because, as part of the common law pertaining to groundwater, it was inapplicable to their surface water riparian rights.

A unanimous Court of Appeals panel reversed in part the circuit court's ruling.13 Citing this Court's opinion in Preserve the Dunes,14 the Court of Appeals concluded that the DEQ's administrative decision to issue permits to Merit did not violate MEPA. The Court of Appeals also reversed the circuit court's ruling on the scope of the DNR's easement to Merit and concluded that the DNR conveyed the right to discharge water, which the panel characterized as "inherently riparian and therefore connected to, rather than apart from, the land."15 However, the Court of Appeals affirmed the circuit court's application of the "reasonable use balancing test,"16 thereby leaving in place the injunction against Merit's proposed discharge.

Plaintiffs sought leave to appeal in this Court, claiming that this Court should, among other requested relief, overturn the "reasonable use balancing test" and this Court's decisions in Preserve the Dunes and Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc.17 Defendant Merit did not cross-appeal. This Court granted plaintiffs' application for leave to appeal on January 29, 2010, and specifically asked the parties to brief, among other issues, "whether Michigan Citizens v. Nestlé Waters ... and Preserve the Dunes v. DEQ ... were correctly decided."18

In the intervening period, however, Merit quitclaimed its interest in the easement back to the newly combined Department of Natural Resources and Environment and provided thorough documentation to this Court to prove that it had done so. Accordingly, Merit moved to dismiss, claiming that plaintiffs' appeal was moot because Merit had abandoned its plan to discharge water into Kolke Creek, as evidenced by its relinquishment of the DNR easement. Because Merit no longer had physical access to Kolke Creek, it argued that it could not violate MEPA or plaintiffs' common law riparian rights in the way plaintiffs alleged. Further, Merit offered proof that it had filed for a new groundwater discharge permit to achieve its treatment goals by an alternative plan that would avoid discharging treated water into Kolke Creek. Nevertheless, a majority of this Court denied Merit's motion to dismiss for mootness on June 18, 2010.19

II. STANDARD OF REVIEW

This case implicates issues of constitutional law, statutory interpretation, and the common law. Each of these issues is a question of law, which this Court reviews de novo.20

III. JUSTICIABILITY

A. BACKGROUND

This Court has the constitutional authority to exercise only the judicial power, not "powers properly belonging to another branch. ..."21 The people of Michigan have ratified this "cardinal principle"22 of republican government into each of their successive constitutions since the first, the Michigan Constitution of 1835.23 Moreover, this principle is "`in harmony with American political theory. ...'"24 Indeed, the drafters of the United States Constitution made it clear that each branch of government could not exercise the powers of the other two branches.25 James Madison considered the principle of separation of powers essential to the operation of the federal government:

Madison went on to explain that, despite the strong disagreements between federalists and antifederalists over the proper scope of the federal government, all agreed that the tripartite form of government was sacrosanct:

In the nearly two and a quarter centuries since the United States Constitution's ratification, the separation of powers doctrine has become "[p]erhaps the most fundamental doctrine in American political and constitutional thought. ..."28

Although the Michigan Constitution does not expressly define "the judicial power," as early as 1859, this Court limited the judicial power to "the power to hear and determine controversies between adverse parties, and questions in litigation."29 Justice THOMAS COOLEY wrote:

Justice CHAMPLIN applied this principle in Risser v. Hoyt, explaining:

Thus, there is more than a century and a half of authority from this Court that limits the constitutional power of the judiciary to deciding live cases and controversies between interested parties. Moreover, the current constitutionally defined exceptions to this rule32 help to prove the rule itself:

More recently, this Court has articulated the following core definition of the judicial power:

This case involves an issue central to this Court's constitutional exercise of the judicial power: mootness.35

B. ANALYSIS

The long-established mootness doctrine prevents courts from hearing abstract questions of law in cases that no longer contain live controversies. This Court has recently reaffirmed that moot questions generally cannot be adjudicated.36 People v. Richmond is merely the most recent affirmation of this well-established principle and is entirely consistent with over a century of precedent of this Court.

Street R. Co. of East Saginaw v. Wildman, an 1885 case of this Court, is an especially apt application of the mootness doctrine.37 In Street R. Co., the plaintiff railroad sought to enjoin the defendant from moving a building along its railroad tracks "to the great interruption of its business and profits, the serious inconvenience of the public, and the hindrance and delay of the United States mails which it carried. ..."38 Shortly after the trial court dismissed the plaintiff's claim, but before the plaintiff appealed in this Court, the defendant moved the building, thereby negating any ability for a court to prevent the claimed harm through the injunctive relief sought. On appeal, this Court determined that "[i]f the complainant was ever entitled to the [equitable] relief prayed for, we cannot now make any decree to aid it" because "[w]e can hardly prevent [the defendant] from doing what has already been done."39

In a subsequent case, Anway v. Grand Rapids R. Co., this Court further articulated the scope of the judicial power as it related to moot questions:

The Court concluded with a nonexhaustive list of cases in which the Michigan Supreme Court had previously "declined to consider abstract questions of law and which [it] declined to decide where our conclusions could not be made effective by final judgment, decree, and process. ..."41

The facts of this case make clear that Merit no longer has the physical means of discharging treated water into Kolke Creek, and the circuit court vacated the certificate of coverage issued by the DEQ. Thus, the very harms that plaintiffs sought to enjoin no longer exist. Merit has no legal means to injure plaintiffs.42 The plain fact that the lead opinion ignores is that this Court simply cannot remedy harms that cannot now possibly occur.43 Stunningly, all of this is a matter of indifference to those who subscribe to the lead opinion's result. Apparently, the conclusive facts of the case are of no moment or hindrance when the goal is to use this case as a vehicle to reach policy objectives that the lead opinion wishes to address.

As established by Street R. Co. and subsequent caselaw regarding mootness, it obviously follows for all but a majority of this Court that, without the threatened construction and use of the pipeline and without any DEQ permit authorizing the discharge, there remains no threatened injury to plaintiffs' riparian rights, and certainly none that this Court can remedy. Similarly, there remains no threatened MEPA violation, either by Merit or by the DEQ.

In short, plaintiffs' common law riparian rights and their rights under MEPA are secure. Indeed, plaintiffs do not now contend that they have an immediate injury at stake; they nevertheless want this Court to rule on the substantive legal issues—for the benefit of future cases. This is the definition of mootness. Again, the Street R. Co. decision provides guidance:

In their brief opposing Merit's motion to dismiss, plaintiffs claimed that this case fits into an exception to the mootness doctrine, that "the issue is one of public significance that is likely to recur, yet evade judicial review."45 Not so.

The issues presented here are not the sorts of issues whose transitory nature— often because the issues involved are time-sensitive—makes it likely that future litigation would "evade judicial review."46 To the contrary, any riparian owner aggrieved by the actions or imminently threatened actions of another can seek injunctive or other relief.

The lead opinion claims that "the trial court has left open the door for Merit to discharge treated water into Kolke Creek at a lower than originally proposed rate."47 This claim appears plausible when looking solely at the circuit court's June 26, 2007, amended opinion. But that opinion was superseded by subsequent events. In particular, the circuit court's January 31, 2008, opinion ruled that the DEQ had erroneously issued a permit to Merit. Both the Court of Appeals and, eventually, this Court denied defendants' applications for leave to appeal, leaving intact the circuit court's opinion. Accordingly, even if the circuit court's June 26, 2007, decision "left open the door for Merit to discharge treated water into Kolke Creek," its January 31, 2008, decision closed that door, and this Court's denial of leave bolted the door shut. Further, without either physical access to Kolke Creek or a valid permit, Merit has no lawful authority to discharge any amount of anything into Kolke Creek.

In short, there is not a clearer instance of mootness than this case: the action originally challenged by plaintiffs can no longer be physically or legally accomplished by any of the defendants. Nevertheless, a majority of this Court has seen fit to decide the substantive issues of this case. The decision of four members of this Court to proceed on the substantive merits is profoundly flawed and inconsistent with longstanding principles of constitutional law. Worse still, the lead opinion is itself profoundly flawed and inconsistent with longstanding principles of the common law and of statutory interpretation. Therefore, I am compelled to respond seriatim to the lead opinion's substantive claims.

IV. PLAINTIFFS' COMMON LAW RIPARIAN CLAIMS

I vigorously dissent from the lead opinion's creation of a new common law rule that certain discharges of contaminants are per se unreasonable infringements on riparian owners' rights. Unfortunately, I fear that the haste to render a decision in this case before the end of calendar year 2010, while perhaps grounded in a good intention to protect this state's environmental resources, could result in great mischief to the law. Indeed, "[g]ood intentions, unsupported by well informed policy choices, often result in bad law."48 In its haste to fashion its rule, the lead opinion elided several necessary inquiries.49 More troubling, the lead opinion created out of whole cloth a palpably erroneous common law standard that is not grounded in this state's water law.

A. REASONABLENESS OF EASEMENT AND PROPOSED DISCHARGE

Although plaintiffs have won at all levels below on the issue whether the proposed discharge would have violated their riparian rights, they challenge the underlying law that the lower courts applied to the analysis.50 The lower courts applied the "reasonable use balancing test" as outlined in the Court of Appeals' Nestlé opinion. Plaintiffs claim that this was erroneous, first, because the Nestlé panel ignored or changed Michigan water law and, second, because the instant panel improperly extended Nestlé's groundwater decision to competing riparian surface water claims.

The Nestlé "reasonable use balancing test" applies a multifactor balancing test to determine whether the alleged violation of a plaintiff's water rights (in Nestlé, groundwater rights, and in the instant case, surface riparian rights) amounts to an unreasonable infringement of those rights. The Nestlé panel defined the "reasonable use balancing test" as follows:

The lead opinion refuses to determine whether the Nestlé panel's "reasonable use balancing test" might be appropriate in some instances, but it conclusively determines this test to be inappropriate in the instant case because the proposed discharge was "manifestly unreasonable."52 Although the lead opinion cautions that it is not concluding that "diverting water from one watershed to another is ipso facto unreasonable,"53 it does provide a categorical rule regarding contaminants when it observes that "[i]t would be incongruous to hold that it is reasonable to decontaminate water by contaminating different water."54 The categorical rule that the lead opinion fashions in its haste to render a decision in this case is inconsistent with longstanding principles of Michigan water law.

This Court's decision in Attorney General ex rel. Wyoming Twp. v. Grand Rapids55 provides a prime example of the lead opinion's determination—willful or not—to ignore longstanding principles of Michigan water law. Wyoming Twp. is particularly significant because it employed a reasonable use balancing test under circumstances similar to the facts here. In Wyoming Twp., the plaintiff riparian owners sought to enjoin the defendant city—also a riparian owner—from discharging its citizens' sewage into the Grand River. It is clear from the facts of the case that many of the citizens whose land was therefore benefitted lived on nonriparian parcels. Further, as will often be the case when a governmental entity disposes of sewage, it is possible—and potentially likely—that citizens of the defendant lived on land outside the watershed. But such facts were irrelevant; the Court's decision rested entirely on a reasonable use test to balance the rights of the competing riparian owners to use the waterway as they saw fit.

Writing for the majority, Justice STONE applied a balancing test to determine the extent to which the plaintiffs' riparian rights suffered as a result of the defendant's discharge. The Court explained that "city has the right to make a reasonable use of the waters of the river as a riparian owner."56 Accordingly, it articulated a rule that "where an unreasonable pollution of the water, amounting to a nuisance, or impairing the rights of the lower riparian proprietor, is created or maintained, an injunction will issue to restrain its continuance."57

The central issue was the plaintiffs' ability to exercise their riparian rights, not simply the defendant's pollution of the Grand River. The Court explained: "Sewage cannot be thrown into the stream in such a way as to render the water foul and unfit for use."58 It emphasized that discharges of pollutants themselves were not per se impermissible; only the harmful effect of a particular discharge rendered it impermissible:

Accordingly, the Court enjoined the defendant from discharging sewage "until the same shall have first been, by the use of a septic tank or tanks, so deodorized and purified as not to contain the foul, offensive, or noxious matter (which it now contains) capable of injuring the complainants or their property, or causing a nuisance thereto. ..."60

The Court explicitly tied the reasonableness of a riparian discharge to the existence of a private nuisance. The two concepts are related because the existence of a private nuisance is itself dependent on whether the defendant's actions "`constitute unreasonable interference with the use and enjoyment of the land.'"61 Overall, the Court's decision in Wyoming Twp. shows not only that the Nestlé panel's "reasonable use balancing test" is firmly rooted in the Michigan common law, but also that such a test was applied historically even when a riparian owner used a waterway to benefit nonriparian lands. By contrast, the lead opinion's claim that any pollutant from a different watershed discharged into Kolke Creek is unreasonable per se is a sharp divergence from established Michigan water law.

Indeed, historical water law in Michigan consistently supports the lower courts' application of the "reasonable use balancing test" instead of the lead opinion's new categorical common law rule. Michigan riparian law dates to Justice COOLEY'S 1874 decision in Dumont v. Kellogg.62 In Dumont, the defendant "constructed a dam across a natural water course, and by means thereof wrongfully detained the water in the stream to the prejudice and injury of the plaintiff, who was proprietor of a mill previously erected on the stream below."63 The claim of error involved the trial court's instruction of the law to the jury, and so the Court articulated the proper law involving competing riparian claims. Justice COOLEY determined that equality of riparian ownership requires some sort of balancing of riparian interests:

This Court also articulated important principles involving riparian rights in People v. Hulbert.65 The central issue in Hulbert was whether, by swimming in the lake on which he owned property, the defendant criminally polluted the lake, which also served as a water supply to the city of Battle Creek. The prosecution presented expert witnesses who testified "that germs might have been thrown off the body of the respondent while swimming, which would produce disease, and that some of those germs might reach the intake pipe, and through it the consumers of the water, and be a source of ill health," even though "[i]t is not shown any such germs ever did reach the intake pipe, or that any illness in Battle Creek could be traced to the use of the water taken from this lake."66

Writing for the majority, Justice MOORE concluded that Michigan and foreign caselaw made it clear "that the lower proprietor [i.e., the city] has no superior right to the upper one, and may not say to him that, because the lower proprietor wants to use the water for drinking purposes only, the upper proprietor may not use the water for any other purpose."67 Rather,

The Court also implicitly required a fact-intensive balancing of the rights and effects of the riparian users:

As this explication of Michigan water law shows, the lead opinion's creation of a categorical common law rule out of whole cloth is hasty and inconsistent with established water law. Believing that it is "unconscionable and destructive for this Court to determine that it is reasonable to spread dangerous contamination throughout Michigan,"70 the lead opinion nevertheless would adopt a categorical rule without requiring a finding that the contamination is, in fact, "dangerous" to the watershed at issue! This is so because the circuit court only made an initial finding of fact that the volume of the proposed discharge (1.15 million gallons a day) could cause unreasonable harm to plaintiffs. It did not find that the treated water was harmful to Kolke Creek regardless of volume; to the contrary, the circuit court specifically ruled that "the parties' proximity to and use of the watercourse, as well as the volume, source, and nature of the proposed discharge, were considered while determining whether the proposed discharge would be reasonable." Furthermore, its decision expressly contemplated that defendants might offer a planned discharge of contaminant that would be reasonable. Instead of reviewing the factual determinations of the circuit court, the lead opinion makes a ruling as a matter of law that any amount of discharge is per se unreasonable. There is simply no basis in law or fact for its ruling.

Incredibly, the lead opinion reaches its preferred result by creating a new categorical rule both without citing a single case in support and with apparent unawareness that caselaw has already established how courts should weigh water use on the basis of whether it benefits riparian or nonriparian land, if the specific facts of a case warrant a distinction.71 Citing longstanding precedent of this Court, the Court of Appeals panel in Nestlé expressly held that "water uses that benefit the riparian land ... are given preference over water uses that ... benefit land unconnected with the location [of the water withdrawal]."72 A court should "ensure that the needs of local water users are met first. ..."73 Indeed, as the lower courts obviously concluded here, the factors listed in Nestlé directly address, on the basis of historical tests for reasonableness, each of plaintiffs' concerns about Merit's proposed water use. For example, Nestlé also asserted that "natural purposes," including "uses necessary to the existence of the user and his or her family," take precedence over artificial uses.74 As is particularly relevant to plaintiff Anglers of the AuSable, Inc., a court must also consider the proposed use's "effect on fishing, navigation, and conservation."75 Finally, the circuit court's ruling clearly took into account the Nestlé panel's holdings that "[i]f the amount or method of water use is excessive or unnecessary and harms another's use, it will be unreasonable," and "if the harm caused by a water use can be readily modified to mitigate or eliminate the harm, the failure to take such steps may make the particular use unreasonable."76

The lead opinion's conclusion that Merit's proposed use is manifestly unreasonable simply because it involves two watersheds is unnecessary and displays a patent disregard for the rule of law and for this Court as an institution. Its unreasoned conclusion also threatens vast negative consequences for the residents and businesses of this state.

B. POTENTIAL CONSEQUENCES OF THE LEAD OPINION'S RULE

With little explanation that cites no proposition of law, save the unremarkable and uncontested principle that an unreasonable use of a watershed is prohibited, the lead opinion upends water law and declares a categorical per se rule precluding any amount of contaminant into Kolke Creek. The lead opinion attempts to bouleverse the existing law of this state, the negative impacts of which attempt cannot fully be foreseen. It fails to account even for several obvious hypothetical situations in which its unbending rule inappropriately precludes reasonable discharges that do not harm riparian owners' rights.

For example, suppose the presence of a contaminant in a small watershed causes significant harm to the environment and to the people living within that watershed. Suppose further that environmental engineers determine that diverting that contaminant to a large watershed (or several other watersheds) via riparian owners' access easements would not harm the water contained in the larger watershed because the contaminant is safe when diluted in a large body of water. In this situation, the diversion would not harm the riparian rights of the larger watershed's users, but it would significantly improve the environmental conditions of the smaller watershed. Nevertheless, the lead opinion's categorical rule would seem to provide riparian owners at the point of discharge a cause of action to enjoin the discharge, despite no finding of harm to the larger watershed.

The lead opinion also seems to call into question whether and to what extent municipalities can discharge their residents' sewage. Suppose that a municipality's residents receive their water from one watershed and that the municipality discharges its residents' sewage into a different watershed. May riparian owners at the point of discharge successfully enjoin the municipality from discharging its residents' sewage upon a simple showing that the discharge was created from water taken from a different watershed? Although the Wyoming Twp. decision would allow this discharge (assuming a finder of fact were to make appropriate findings of reasonableness), the rationale of the lead opinion would forbid it.

Consider an even simpler scenario: may a farmer no longer import water during dry seasons to irrigate his crops if any amount of the water, once sprayed onto his land, will drain into a river? According to the rationale of the lead opinion, arguably he may not. It appears that it will not matter whether the farmer uses potentially damaging fertilizers or harmless organic ones—either would "contaminate" the water as it runs off the plants and soil—given that actual injury to the watershed from his irrigation is irrelevant under the lead opinion's categorical rule. Indeed, because the lead opinion never even defines "contamination," farmers are left to wonder: Is irrigation precluded if the off-watershed irrigation water is contaminated with mere soil? With plant matter? Further, because the lead opinion's rule makes it no longer appropriate to balance the benefits and detriments of the particular use in relation to other uses of the watershed, the categorical prohibition would not be superseded even if the farm were a significant source of food or economic support for the farmer's community.77 Thus, the lead opinion's rule has the potential to cripple agriculture in this state—an industry that has an economic impact of more than $70 billion annually in this state's economy.78

These are only a few hypothetical situations that the lead opinion's categorical rule would seem to forbid. Yet as these examples make clear, application of the lead opinion's rule—which requires water use to be enjoined on the basis of a vague notion of "contamination" instead of on the basis of relative harm—would stifle activity that simply does not harm existing watersheds and that is clearly beneficial to the community at large.

The lead opinion also fails to address arguments of defendants and their amici curiae—which raise additional critical concerns about the soundness and workability of the new rule—that on-watershed and off-watershed uses may be impossible to differentiate under some facts. The lead opinion's categorical rule suggests that a watershed's boundaries are sacrosanct, yet it has provided no authority for this principle. It does not even note Merit's related observation that its land—like countless other parcels in Michigan—sits nearly on the border of the surface water divide between the AuSable and Manistee watersheds, exemplifying Merit's argument that, as a matter of geographical fact, determining which watershed a parcel sits in is not always a black and white inquiry. Yet under the lead opinion's categorical rule, courts would have to make this determination, even when scientists and geographers cannot.

Finally, and most telling, as explained earlier, plaintiffs successfully enjoined Merit from discharging 1.15 million gallons a day into Kolke Creek in the instant original action, and they successfully vacated the DEQ's COC on appeal of the contested case decision. Those proceedings were designed to take into account the very analyses that the lead opinion elides: namely, whether the particular proposed discharge would unreasonably interfere with plaintiffs' riparian rights and whether it would violate Michigan's environmental laws. This case's procedural history illustrates that the careful balance Michigan's riparian law has struck for more than a century serves citizens of this state, including riparian owners such as plaintiffs, well: not one drop of treated water has ever been allowed to enter the bodies of water plaintiffs sought to protect; the permit that would have allowed a discharge was vacated; and plaintiffs were awarded fees and costs pertaining to their claims against Merit. This litigation demonstrates that there is no need to disturb Michigan's balanced and effective riparian law. Ultimately, the broad strokes that the lead opinion uses in its haste to render its preferred policy decision in this case would severely damage this state's common law and its economy.

V. PLAINTIFFS' MEPA CLAIMS

Plaintiffs claim that both Merit and the DEQ violated MEPA.79 MCL 324.1701(1) provides, in whole:

MCL 324.1703(1) requires the plaintiff to make "a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources. ..."

Plaintiffs claim that the DEQ's issuance of the COC "is likely to pollute, impair, or destroy" Kolke Creek and the AuSable River watershed in violation of MCL 324.1703(1).80 The lower courts applied this Court's precedent in Preserve the Dunes to rule that the mere issuance of a permit is not itself "conduct" that "is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources" in violation of MCL 324.1703(1).

A. PRESERVE THE DUNES WAS CORRECTLY DECIDED

In Preserve the Dunes, the plaintiff sought to enjoin a sand dune mining operation for which the DEQ had granted a permit. Although the plaintiff did not challenge the mining operation's eligibility for the permit during the appropriate time for review, it sought to undertake a collateral attack on the permit's issuance, claiming that the DEQ's mere issuance of the permit violated MEPA.

Writing for the majority, Justice CORRIGAN explained that, even if the DEQ had erred by issuing the permit, "[a]n improper administrative decision, standing alone, does not harm the environment. Only wrongful conduct offends MEPA."81 Accordingly, the Court rejected the plaintiff's collateral attack on the issuance of the mining permit. Of course, the Court's holding that "[o]nly wrongful conduct offends MEPA" did nothing to prevent an action against the mining operation for harming the environment. Indeed, if nothing else, the opinion underscored that the appropriate avenue to enforce MEPA is to seek relief from the entities whose actual conduct violates or would imminently violate MEPA.

The lead opinion claims that Preserve the Dunes "frustrated the legislative intent behind MEPA, and ... represented a departure from this Court's precedent."82 To the contrary, Preserve the Dunes applied the language that the Legislature used in MEPA, and its holding was consistent with the holdings contained in this Court's earlier precedent.

When interpreting a statute, courts must "ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute."83 This requires courts to consider "the plain meaning of the critical word or phrase as well as `its placement and purpose in the statutory scheme.'"84 In enacting MEPA, the Legislature specified that it was regulating "conduct of the defendant [that] has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources. ..."85

The word "conduct" is not defined in MEPA, nor is it defined in the Natural Resources and Environmental Protection Act,86 within which all environmental regulations, including MEPA, fall. "[W]e give undefined statutory terms their plain and ordinary meanings."87 Accordingly, it is appropriate to use a dictionary to determine the appropriate meaning of the word "conduct" in MCL 324.1703(1).88 Merriam-Webster's Collegiate Dictionary defines "conduct," in relevant part, as "the act, manner, or process of carrying on[.]"89 This definition makes it clear that conduct requires some sort of action.

It is apparent from the placement of the term "conduct" within MCL 324.1703(1) that not only must a defendant engage in "conduct" to violate MEPA, but the defendant's conduct must itself "pollute[], impair[], or destroy[] or [be] likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources. ..." It is simply not the case that the issuance of a permit, by itself, pollutes, impairs, or destroys or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources.90 While a permit might precede conduct that pollutes, impairs, or destroys this state's environmental resources, it does not do so without subsequent action by an individual or entity. The lead and concurring opinions thus have not shown how the mere issuance of a permit violates MEPA.

The lead opinion also claims that Preserve the Dunes "insulate[s] DEQ permit decisions from MEPA."91 As already demonstrated, this case is a perfect illustration that this is simply untrue. Judicial review of agency decisions is available through an appeal to circuit court pursuant to the Administrative Procedures Act (APA) after a contested case hearing.92 In other words, a person seeking judicial review of an administrative agency's issuance of a permit may assert that the agency failed to apply MEPA. As discussed, that is precisely what happened in this case. In plaintiffs' appeal of the contested case decision, the circuit court concluded that the DEQ's "approval of Merit's COC is illegal ... because the proposed discharge and the proposed volume of discharge is likely to violate MEPA."

Accordingly, contrary to the lead opinion's unsupported assertion, the permitting process is far from "insulated." In this very case, MEPA was vindicated through an appropriate and entirely adequate procedural vehicle: the APA appeal. There was no need for plaintiffs to file a separate complaint under MCL 324.1701, alleging again that the MDEQ's issuance of the (already-invalidated) COC violated MEPA. As the procedural history of this case illustrates, and as Preserve the Dunes recognized, a MEPA case challenging the issuance of a permit constitutes an improper "collateral attack" that is nowhere contemplated by the statute.93

B. PRESERVE THE DUNES WAS CONSISTENT WITH THIS COURT'S PRECEDENT

The lead and concurring opinions also have not shown how Preserve the Dunes departed from this Court's precedent. The lead and concurring opinions both refer to several cases that they urge support their claim, but they fail to examine those cases in sufficient detail to show how they are inconsistent with Preserve the Dunes. In fact, the cases cited provide little support for the claim that Preserve the Dunes was incorrectly decided.

First, the lead and concurring opinions refer to Eyde v. Michigan.94 However, the plaintiffs in Eyde claimed that "the construction of a sewer [was] violative of" MEPA's predecessor statute.95 Thus, Eyde unquestionably involved conduct, namely, the construction of a sewer. Moreover, the Court expressly indicated that its holding was "restricted to the unique facts of this case."96 As a result, the lead and concurring opinions' reliance on this case is specious.

Second, the lead and concurring opinions refer to Ray v. Mason Co. Drain Comm'r.97 Ray involved "the kind of findings of fact required of the trial judge ... in deciding an action brought under" MEPA's predecessor statute.98 Ray neither involved nor discussed whether the mere issuance of a permit can itself violate MEPA. Accordingly, it is simply irrelevant to the position that the lead and concurring opinions seek to advance.

Third, the lead and concurring opinions refer to West Mich. Environmental Action Council v. Natural Resources Comm. (WMEAC).99 The plaintiffs in WMEAC challenged a consent order between the Natural Resources Commission (NRC) and several private entities to allow oil and gas development in a state forest. Pursuant to that consent order, the NRC granted permits for those private entities to drill 10 exploratory wells in the forest. Even before the NRC granted those permits, however, the plaintiffs claimed that the consent order "was likely to lead to the impairment of wildlife in the Forest."100 This Court's ultimate disposition was to order the trial court to enter "a permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August 24, 1977."101 Thus, this Court's injunction was not issued to enjoin the NRC from issuing permits or even to vacate the existing permits but to enjoin the underlying conduct that the permits purported to allow. WMEAC is, therefore, inapplicable to whether Preserve the Dunes was correctly decided.

Finally, the lead and concurring opinions refer to Nemeth v. Abonmarche Dev., Inc.102 Nemeth involved a proposed development in the city of Manistee that the plaintiffs alleged would cause soil and sand erosion. At issue in Nemeth was whether the developers' (undisputed) violations of the soil erosion and sedimentation control act (SESCA)103 also violated MEPA. This Court concluded that substantive SESCA violations can present a prima facie MEPA violation. Thus, Nemeth similarly involved whether conduct underlying a permit—not the actual issuance of a permit—violates MEPA.

Accordingly, and contrary to the lead and concurring opinions' ipse dixit, Preserve the Dunes was not inconsistent with this Court's prior holdings.

C. THE LEAD OPINION'S ADDITIONAL RATIONALES

The lead opinion claims that it provides two additional "compelling justifications for overruling Preserve the Dunes."104 Neither of these justifications withstands scrutiny.

First, the lead opinion claims that Preserve the Dunes violates article 4, § 52 of the Michigan Constitution, which indicates that the "conservation and development of the natural resources of the state ... [are] of paramount public concern" and that "[t]he legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."105

This Court has recognized that the predecessor statute of MEPA was "the first legislation of its kind" and that its passage "attracted worldwide attention."106 Nothing in Preserve the Dunes prevented any plaintiffs who alleged an imminent injury to their property from participating in what former Chief Justice WILLIAMS called "the important task of environmental law enforcement. ..."107 Indeed, plaintiffs here have already succeeded in enforcing MEPA by receiving an injunction preventing Merit from undertaking conduct that the circuit court concluded would violate MEPA. Preserve the Dunes did not stifle enforcement of MEPA. On the contrary, it focused enforcement of MEPA against those individuals and entities who are actually harming, or whose imminent conduct threatens to harm, this state's natural resources.108

The lead opinion also determines that Preserve the Dunes should be overruled because, in the instant case, the DEQ "has done more than simply issue a permit that would result in the harm of natural resources" because it "has also granted an easement over state land to facilitate the harmful actions."109 It is simply incongruous to assert that the holding in Preserve the Dunes — that the mere issuance of a permit does not constitute "conduct"— should be overruled because the lead opinion concludes that the DEQ's actions in the instant case exceeded the mere issuance of a permit! Indeed, nothing in Preserve the Dunes prohibited actions against administrative agencies whose conduct actually pollutes or threatens to pollute the environment. Moreover, the lead opinion is simply incorrect in stating that the DEQ granted Merit an easement to facilitate its allegedly harmful actions. The DNR granted the easement to Merit, not the DEQ. Although today they are within the same entity (the Department of Natural Resources and Environment), they were separate executive agencies at the time the easement was granted. Thus, to the extent that the DNR's act of granting the easement arguably can be said to have been actionable "conduct" violating the relevant environmental statutes, this is not related to DEQ's issuance of the permit. But this circumstance is not a problem for the lead opinion. Simply put, the lead opinion's argument that the issuance of the successfully challenged permit caused an environmental injury is specious.

D. STARE DECISIS PRINCIPLES MILITATE AGAINST OVERRULING PRESERVE THE DUNES

Not only does a majority of this Court erroneously conclude that Preserve the Dunes was incorrectly decided and was inconsistent with this Court's precedent, but the lead and concurring opinions do not seriously consider what effect the principle of stare decisis has on whether to overrule Preserve the Dunes. Stare decisis "`promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'"110

Although the lead and concurring opinions (erroneously) conclude that Preserve the Dunes was wrongly decided, it is well established that "the mere fact that an earlier case was wrongly decided does not mean overruling it is invariably appropriate."111 Instead, this Court must determine the effects of overruling its prior decision, "including most importantly the effect on reliance interests and whether overruling would work an undue hardship because of that reliance."112 The lead opinion simply states, with no explanation, that "the law must be returned to how it was applied before Preserve the Dunes was incorrectly decided."113 The lead opinion's failure to undertake this analysis with any degree of seriousness further illustrates its haste to render a decision.

In fact, the lead opinion fails to make this analysis because such an analysis shows that Preserve the Dunes should be maintained. To overrule Preserve the Dunes, even if it were wrongly decided, "would produce chaos."114 The Preserve the Dunes majority's response to the dissent in that case provides a glimpse into the world the lead opinion seeks to create, one in which no administrative decision achieves finality:

The lead opinion's rationale, such as it is, provides scant assurance that it has considered how disruptive overruling Preserve the Dunes will be to this state.

The concurring opinion attempts to undertake an analysis of stare decisis principles, but it also falls short of proving that Preserve the Dunes should be overruled. In particular, the lead and concurring opinions have not shown how Preserve the Dunes defies "practical workability," another factor militating against its claim that Preserve the Dunes should be overruled.116 To the contrary, even under Preserve the Dunes, the instant plaintiffs successfully enjoined the conduct that the DEQ's permit purported to allow and they successfully challenged the issuance of that permit on appeal from the appropriate administrative procedures. Indeed, if anything, this case shows how Preserve the Dunes appropriately and effectively interpreted Michigan's environmental law, permitting the successful protection of the environment and plaintiffs' riparian rights. This fact alone should have been persuasive to any jurist committed to stare decisis to avoid an unnecessary overruling of existing precedent.

Preserve the Dunes was correct when it was decided, and it remains correct today. The lead and concurring opinions have not provided any serious reason for determining otherwise.

VI. CONCLUSION

This case is moot. Not only has Merit voluntarily abandoned the easement that granted it physical access to Kolke Creek, the circuit court has also vacated the underlying DEQ permit that would have allowed it to make its proposed discharge. Accordingly, any substantive decision that this Court renders only affects the parties in the abstract. This Court has long stated that it is not a constitutional exercise of the judicial power to decide abstract cases. Therefore, I vehemently dissent from this Court's decision to render a substantive ruling in this case.

Furthermore, I strongly dissent from the lead opinion's unnecessarily disruptive disposition of the substantive issues in this case. The lead opinion fashions out of whole cloth a categorical rule that "contaminated" water originating from one watershed can never be discharged into watercourses in another watershed because such a discharge inherently violates the riparian rights of landowners at the point of discharge. This decision has no basis in Michigan's well-established water law, under which the touchstone of "reasonableness" has served the citizens of this state, including these riparian plaintiffs, very well. Finally, the lead and concurring opinions' claim that Preserve the Dunes was wrongly decided is inconsistent with the plain language of MEPA and will wreak havoc on this state's legal system.

In short, the lead opinion's palpably erroneous decision and the concurring justices' acquiescence in the result of that decision are affronts to the rule of law and reflect the majority's unseemly haste to render a decision in this case before the end of calendar year 2010. The decision this Court renders today is a prime example of the naked exercise of power without constitutional warrant. While there may be some who will welcome today's result, they should fear a judiciary that is willing to bend the law to accomplish its will. Those who support it may live to see this decision further undermine the state's fragile economy.

For all the foregoing reasons, I respectfully, but strenuously, dissent.

MAURA D. CORRIGAN and STEPHEN J. MARKMAN, JJ., agree.