In a letter to Ann Arbor’s mayor and city council, Noah Hall, executive director of the The Great Lakes Environmental Law Center in Detroit, has raised the specter of an environmental lawsuit filed against the city of Ann Arbor. At issue is whether the city’s planned underground parking garage on Fifth Avenue violates the Michigan Environmental Policy Act (MEPA). The bond issuance for the project, for an amount not to exceed $55 million, was approved by city council at its Feb. 17, 2009 meeting. As of Friday, May 15, 2009, bonds have still not yet been issued, according to Tom Crawford, the city’s chief financial officer. [text of Hall's letter]
Joining Hall as signatories to the letter are Henry L. Henderson (Natural Resources Defense Council), Stuart Batterman (environmental health sciences at the University of Michigan), David Yves Albouy (economics at the University of Michigan), Doug Cowherd (Sierra Club-Huron Valley Group), Tom Whitaker (Germantown Neighborhood Association), as well as two other Ann Arbor residents.
In an emailed response to The Chronicle reacting to a previous draft of Hall’s letter circulated two months ago (which covered substantially the same issues), Leigh Greden (Ward 3) stated: “A lawsuit alleging that the parking garage violates MEPA would be frivolous,” contending that the standard suggested by Hall would make any construction project non-compliant with the MEPA.
Still, based on background sources for The Chronicle, the project has been slowed somewhat by the extra unknown of a lawsuit. We’ll track this dispute as it evolves, and will hopefully be able to gain some insight into any planned next steps from councilmembers at their Sunday night caucus.
Meanwhile, what exactly is the MEPA standard to which Hall appeals in his letter to the Ann Arbor city council? Two key aspects to consider in evaluating a MEPA claim are (i) standing, and (ii) cause. The first relates to those who are allowed to bring a suit in a MEPA case.
In relevant part, the section from Michigan Compiled Law 324.1701 reads [emphasis added for readability]:
(1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief 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.
But in a July 25, 2007 Michigan Supreme Court decision, the court set a possible precedent for narrowing the set of possible plaintiffs in such cases, by applying traditional requirements for legal standing. That is, there must be an injury to the plaintiff, and that plaintiff’s injury must be different than the injury to the public at large. The 2007 case involved a water bottling plant operated by Nestlé Waters North America that threatened to lower the levels of two nearby lakes, a stream and three wetlands.
In that decision, the court ruled that the group filing the lawsuit could sue based on damages related to one of the lakes and the stream, because some members of the group owned property located directly on the lake and the stream. But because none of the group owned property on the second lake or any of the three wetlands, nor did they enjoy the direct benefit of those properties, the court said the group could not sue based on damage to those bodies of water, because the group lacked the legal standing to do so.
… the record below does not indicate that plaintiffs used or had access to these areas or that they enjoyed a recreational, aesthetic, or economic interest in them. Plaintiffs failed to establish that they have a substantial interest in these areas, detrimentally affected by Nestlé’s conduct, that is distinct from the interest of the general public. The absence of a concrete, particularized injury in fact is fatal to plaintiffs’ standing to bring a MEPA claim.
So while the MEPA itself appears to grant legal standing to anyone at all to bring a lawsuit based on “pollution, impairment, or destruction” of the environment, the precedent set by the 2007 case allows for some restriction on the range of people who can bring a lawsuit under the MEPA.
And that restriction depends on the relationship of the potential plaintiffs to the resource that is alleged to be in danger of “pollution, impairment, or destruction.” That relationship needs to be relatively direct: The court rejected an “interconnectedness” argument based on the entire planet’s hydrology, on pain of giving “anyone but a Martian” the standing to contest water withdrawals like Nestlé’s. It’s not enough, the court said in a previous case (Lujan v Defenders of Wildlife), to use a resource in an area roughly “in the vicinity” of the jeopardized resource.
One resource identified in Hall’s letter as jeopardized by the planned Fifth Avenue underground parking structure is air – partly in the form of increased CO2 emissions from automobile emissions caused by motorists driving to and from the structure. So with respect to the issue of legal standing, one question on which a court might deliberate would be: Is there a party to the lawsuit who has a recreational, aesthetic, or economic interest in the air that is likely to be directly affected by the garage? A second question on which the court could deliberate with respect to legal standing would be whether the question of CO2 air pollution is sufficiently similar to water hydrology to reject any claim to standing based on the global warming phenomena.
With respect to the first question, the locations of the letter’s signatories’ homes could be germane: The geographic area of the Germantown Neighborhood Association abuts the same block on which the underground parking garage is to be built; Albouy, the UM economics professor, lives on the 300 block of South Division, directly adjacent to the proposed structure.
Hall’s letter indicates that CO2 emissions from automobiles are not the only source of environmental damage he might argue, should the case be litigated:
… the construction of a new parking structure of the size proposed will require a massive quantity of materials, including concrete and steel. The manufacture and synthesis of these construction materials require vast amounts of resources and energy, with associated pollution, impairment, and destruction of the natural environment.
The Case for Environmental Damage
Based on the space allocated to the topic in Hall’s letter, he’d likely place more emphasis on the the case for environmental damage from automobile CO2 emissions, than on destruction of resources associated with construction of the facility.
The line of reasoning for environmental damage based on CO2 emissions goes roughly like this: more vehicle miles traveled means more CO2 emissions, and more CO2 emissions translates into more global warming.
Once built, the underground parking structure – with 677 spaces in Phase I – will lead to increased vehicle miles traveled (VMT) on the streets surrounding the structure that provide entrance and exit to the structure. The expected increase in VMT at those locations is reflected in two kinds of city documents: (i) in the site plan analysis done for the underground parking garage project by the city, which notes the expected increase in traffic surrounding the structure, and (ii) the financial plan analyzing the feasibility for issuing bonds to fund the structure, which assumes an overall increase in the number of vehicles using the Ann Arbor parking system downtown.
Part of the context of the VMT discussion is that an increase in VMT is counter to the city of Ann Arbor’s stated environmental goals. It’s also one of the areas of weakness identified in the city’s State of the Environment report. The number of per capita VMT has been trending upward from 2000 to 2005.
Does increased VMT lead to increased C02 emissions? For now, at least, Hall said in an interview with The Chronicle, increased VMT correlates with increased CO2 emissions. Until there’s a predominance of electric vehicles on the road, with batteries charged with solar arrays or windmills, more VMT means more CO2, he said.
What’s the significance of CO2, given that various natural processes emit CO2? At least the legal significance of CO2 could be affected by the April 17, 2009 proposed endangerment finding by the U.S. Environmental Protection Agency that greenhouse gases (of which CO2 is one) contribute to air pollution that may endanger public health or welfare. The EPA finding is “proposed” because it must now go through a public commentary phase.
It’s that proposed finding, together with a scientific consensus on global warming, that convinces Hall that the case he might bring would be easier to argue now than it would have been a year ago. Even considering that, Hall allows that it’s not an open-and-shut case. Otherwise put, it’s not about “routine enforcement,” but rather a new kind of case that could establish new precedents.
Defense and Settlement
Hall contends that either in advance of the parking garage construction – or as a defendant in an environmental lawsuit – the city of Ann Arbor needs “to engage in a thorough and objective evaluation of alternative ways to meet the defined need (for example, providing downtown Ann Arbor with transportation to support vibrant commerce).”
What is the defined need in this case? At the Feb. 17, 2009 city council meeting, the public commentary as well as council deliberations focused on symptoms that indicated a lack of sufficient parking. Those symptoms ranged from the anecdotal (complaints by potential patrons of downtown merchants about a lack of parking), to a parade example of a business that was reported to have relocated away from downtown Ann Arbor due to a lack of parking (Xoran Technologies), to some numbers on structure usage (84% capacity during peak periods) and excessive waiting times (greater than 30 days) to obtain a monthly permit.
The anecdotes will likely be familiar to readers of The Chronicle.
The example of Xoran Technologies was introduced at council’s Feb. 17 meeting during public commentary by Newcombe Clark, who works with Bluestone Realty Advisors, and who reported trying to negotiate a deal to provide 20 dedicated parking spaces for the growing company. Xoran, which makes advanced medical imaging equipment, will move from their current location at Miller and First in in the summer of 2009 to Pittsfield Township. At their current location, The Chronicle counted 53 spaces designated by signage for Xoran employees.
During council deliberations, Leigh Greden (Ward 3), who was involved in the attempt to negotiate the 20 additional spaces through the Downtown Development Authority, seemed to portray the Xoran decision as turning only on the 20 parking spaces. Based on a cursory inquiry by The Chronicle, it’s not clear who on Xoran’s part might have introduced a requirement or desire for the specific number of 20 additional parking spaces as a condition for staying downtown.
According to Jackie Vesitvich, head of communications for Xoran, with whom The Chronicle spoke by phone a few days after council’s Feb. 17 meeting, the company needed additional space in general. The company had been very interested in staying in the downtown Ann Arbor area, she said, because they loved being there – but the decision to move to their new Pittsfield location was based on the need for additional space, and specifically a particular configuration of office and warehouse space to accommodate their operation to FDA requirements. An extra 20 parking spaces, she allowed, would have been nice.
In an email sent to The Chronicle in response to an inquiry about the 20 spaces, Clark clarified that there were numerous “deal points” in addition to parking that led Xoran to decide to move to Pittsfield Township. However, he wrote, “All that is certain is that they had a strong desire to stay downtown and a very specific and small lack of parking was the stated reason at the time to look outside of the downtown.”
Asked at the podium during the Feb. 17 meeting what the usage numbers were for the parking system, Roger Hewitt, chair of the Downtown Development Authority’s operations committee, indicated that during peak periods the usage was at 84% of capacity, and that at 85% of capacity, there was already perception that a structure was full. [The DDA administers the city's parking structures and surface lots through Republic Parking. The organization's chair, Jennifer S. Hall, is married to Noah Hall.]
In light of the discussions and deliberations at council’s meeting, then, the need to add parking capacity by approving an underground structure was based on symptoms of a lack of parking capacity.
The parking study for Ann Arbor prepared for the city in 2007 by Nelson\Nygaard, a consulting firm, alludes to some of these symptoms in its final recommendations. With respect to permits, the study says:
6. Maintain sufficient parking supply to allow purchase of monthly parking access instrument on demand, or following a waiting period of no more than 30 days.
And with respect to the need to woo particular companies (like Xoran), the study says:
Coordinate on Economic Development Strategies: The recent Google deal (400 free parking permits offered to lure an influential employer to Downtown) points to the reality that parking access can play a major role in economic development. The City, the Chamber of Commerce, and the DDA should therefore meet early in the process of such deals to determine the potential volume of permits being discussed, the potential value returned to the City for providing this incentive, and to begin developing an approach that follows the established Downtown Parking Policy.
In a phone conversation on May 14, 2009, The Chronicle spoke with David Fields, principal with Nelson\Nygaard, about a basic approach to determining when to add capacity to a parking system. Although Fields worked on the Ann Arbor study, we were asking him to comment in complete generality, not to weigh in on the question of whether to build the underground parking garage at Fifth Avenue. And in that spirit, he suggested that every community will determine for itself how much parking it wants.
One possible step, he allowed, was to decide how much access to an area the community wanted to provide – that is, how many people did a community want to transport into and out of an area. From there, the community could decide what portion of that access was feasibly provided by various means: single occupancy vehicles, bus, rail, bicycle, etc.
In his letter, Hall argues essentially that the feasibility of providing access to downtown Ann Arbor through various other means besides the proposed underground parking garage needs to be analyzed by the city in order to defend against the prima facia case that the underground parking structure will damage the environment. That is, in response to the lawsuit that he might bring, Hall cites one allowable defense specified in the MEPA, which reads in relevant part:
The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction.
When The Chronicle interviewed Hall, he suggested that a 2000 2008 case involving the Sierra Club and the city of Stockton, Calif. might provide a model for a settlement of the Ann Arbor case. There, the city of Stockton took two steps. They (i) set forth a whole range of plans to reduce CO2 emissions and vehicle miles traveled, and (ii) made a specific investment in bus rapid transit. Hall is not wed to the idea of bus rapid transit in particular, but says that it’s important to make some commitment to an initiative that the federal government is interested in helping to fund.
Hall notes there’s no federal stimulus money being offered for parking structures – because, he says, they’re totally out of line with what the Obama administration wants to do. The only part of the underground parking garage bond issuance that’s receiving matching funds from non-local sources, Hall points out, are the streetscape improvements (to enhance pedestrian experience) along Fifth and Division streets. For that project, the Michigan Department of Transportation has awarded a $1 million grant.
During the last couple of months, Mayor John Hieftje has often made a somewhat similar point about federal versus local funding in connection with the East Stadium bridges. The city of Ann Arbor would not want to issue bonds, or use the local street repair millage to repair the bridges, he has pointed out, because the state and federal government place a high enough value on such projects to offer funding for them.
Hall has lent to The Chronicle nearly 1,000 printed pages of material related to the underground parking structure obtained under the Freedom of Information Act from the city of Ann Arbor. Some of that material includes email exchanges among city councilmembers made during their council deliberations. Hall’s letter mentions that material as possible Open Meetings Act violations. Having read through it, the content seems to fall into two categories: (i) adolescent humor, and (ii) apparent “backchannel” discussion of issues before the council, which raises more serious concerns.
We have arranged to have the material digitally scanned as images, and converted to text. To the extent that’s a successful arrangement, we’ll make the material available here on The Chronicle, and follow up as appropriate.