MAYOR OF LANSING V MPSC
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STATE OF MICHIGAN
COURT OF APPEALS
MAYOR OF THE CITY OF LANSING, CITY OF
LANSING, and INGHAM COUNTY
COMMISSIONER LISA DEDDEN,
FOR PUBLICATION
June 5, 2003
9:00 a.m.
Appellants,
v
No. 243182
PSC
LC No. 00-013225
PUBLIC SERVICE COMMISSION and
WOLVERINE PIPE LINE COMPANY,
Appellees.
Updated Copy
July 18, 2003
Before: Talbot, P.J., and Sawyer and O'Connell, JJ.
TALBOT, P.J.
Appellants Mayor of the city of Lansing,1 the city of Lansing, and Ingham County
Commissioner Lisa Dedden appeal as of right from an order of the Public Service Commission
(PSC) authorizing Wolverine Pipe Line Company's application to construct and operate a twentysix-mile liquid-petroleum pipeline in the right-of-way of Interstate Highway 96 (I-96) in the city
of Lansing and Ingham County.
This case presents an issue of first impression: Whether MCL 247.183, as amended in
1994, requires a petroleum-pipeline company to seek the consent of the affected local
governments for the construction of a pipeline project and, if so, whether such consent should be
obtained before seeking the PSC's approval for the project. We hold that the statute, as amended,
requires the consent of the affected local governments. However, such consent need not be
obtained before seeking the PSC's approval. Therefore, we affirm the PSC's order.
I. Facts and Procedural History
Wolverine's application with the PSC in the instant case stems from an earlier
application, PSC Case No. U-12334, in which Wolverine requested permission to construct and
1
At the time of the proceedings before the Public Service Commission, the mayor of the city of
Lansing was David C. Hollister.
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operate a liquid-petroleum pipeline. In U-12334, the PSC found that a need for the proposed
pipeline existed and it granted the application, except for a portion of the pipeline that was routed
between I-96 and LaPaugh Station in Clinton County. Wolverine withdrew that portion of the
route design from the PSC's consideration before the PSC issued its order in that case.
Wolverine subsequently filed the instant application, PSC Case No. U-13225, requesting
approval for an alternative pipeline route to replace the portion of the route that it previously
withdrew from the PSC's consideration. Unlike the former route, the majority of the proposed
twenty-six-mile route will be contained within the I-96 right-of-way. About twenty-two miles of
the right-of-way is controlled by the Michigan Department of Transportation, while the
remaining portion is owned privately, necessitating Wolverine to obtain easements. This route
runs partially through the city of Lansing and Ingham County.
The mayor of the city of Lansing, the city of Lansing, and Commissioner Dedden2
intervened in this case. The PSC staff appeared generally pursuant to 1999 AC, R 460.17307.
At the conclusion of Wolverine's proofs at the evidentiary hearing before the PSC referee, the
city of Lansing moved to dismiss the case for lack of subject-matter jurisdiction. The referee
took the motion under advisement and the parties subsequently agreed to raise the jurisdiction
question in their briefs before the PSC. In its brief before the PSC, the city moved to dismiss
Wolverine's application for lack of subject-matter jurisdiction on the ground that Wolverine filed
the application without obtaining the city's consent to construct the pipeline. The city claimed
that its consent was required by Const 1963, art 7, § 29, MCL 247.183(1) and 247.184, and PSC
rule, 1999 AC, R 460.17601(2)(d). In response, Wolverine argued that the PSC need not
determine whether Wolverine was required to seek the city's consent. Rather, Wolverine claimed
that the PSC should only determine whether Rule 460.17601(2)(d) required Wolverine to submit
the city's consent with its application. Similarly, the PSC staff argued that the language of the
rule did not expressly provide that Wolverine was required to submit with its application proof of
the consent of any local government.
The PSC determined that no law or rule required Wolverine to submit with its application
proof of the consent of the affected local governments. The PSC also determined that Wolverine
had demonstrated a need for the pipeline and that the pipeline was reasonably designed and
routed. Accordingly, it approved the application with certain safety conditions that had been
proposed by the city. The mayor of the city of Lansing, the city, and Dedden appealed as of right
from the PSC order. This Court denied the city's motion for a stay and a subsequent motion for
reconsideration. This Court denied Wolverine's motion to affirm, but granted its motion to
expedite this appeal.
II. Standard of Review
2
Ingham County is not part of the instant case and County Commissioner Lisa Dedden does not
represent the county. The PSC allowed Dedden to intervene in this case only to represent the
concerns of the residents of District 10 of Ingham County. Further, Dedden did not raise or argue
below the first two issues raised in this appeal.
-2-
This Court's review of PSC orders is relatively narrow in scope. In re MCI Telecom Corp
Complaint, 240 Mich App 292, 303; 612 NW2d 826 (2000). The standard of judicial review of a
decision of the PSC is whether that decision is lawful and supported by competent, material, and
substantial evidence on the whole record. Const 1963, art 6, § 28. A party challenging an order
of the PSC bears the burden of proving by clear and satisfactory evidence that the order is
unlawful or unreasonable. MCL 462.26(8); MCL 484.2203(8). "A decision of the PSC is
unlawful when it involves an erroneous interpretation or application of law, and unreasonable
when it is unsupported by the evidence." In re Sprint Communications Co, LP, Complaint, 234
Mich App 22, 34; 592 NW2d 825 (1999). This case also requires this Court to construe the
relevant statutory provisions. Issues of statutory construction present questions of law and are
reviewed de novo. Florida Leasco, LLC v Dep't of Treasury, 250 Mich App 506, 507; 655
NW2d 302 (2002).
III. Analysis
A. The Requirement for Local Consent
The city first argues that the PSC improperly interpreted Rule 460.17601 of the PSC's
Rules of Practice and Procedure when it determined that the rule did not require Wolverine to
submit with its application the city's consent for the project. PSC Rule 460.17601, governing
new constructions of public utilities, provides, in pertinent part:
(1) An entity listed in this subrule shall file an application with the
commission for the necessary authority to do the following:
(a) A gas or electric utility within the meaning of the provisions of Act No.
69 of the Public Acts of 1929, as amended, being § 460.501 et seq. of the
Michigan Compiled Laws, that wants to construct a plant, equipment, property, or
facility for furnishing public utility service for which a certificate of public
convenience and necessity is required by statute.
(b) A natural gas pipeline company within the meaning of the provisions
of Act No. 9 of the Public Acts of 1929, as amended, being § 483.101 et seq. of
the Michigan Compiled Laws, that wants to construct a plant, equipment,
property, or facility for furnishing public utility service for which a certificate of
public convenience and necessity is required by statute.
(c) A corporation, association, or person conducting oil pipeline operations
within the meaning of the provisions of Act No. 16 of the Public Acts of 1929,
being § 483.1 et seq. of the Michigan Compiled Laws, that wants to construct
facilities to transport crude oil or petroleum or any crude oil or petroleum products
as a common carrier for which approval is required by statute.
(2) The application required in subrule (1) of this rule shall set forth, or by
attached exhibits show, all of the following information:
* * *
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(d) The municipality from which the appropriate franchise or consent has
been obtained, if required, together with a true copy of the franchise or consent.
In this case, Wolverine's application with the PSC was filed under Rule 460.17601(1)(c).
The city argues that the language of subrule 601(1)(c) requires an applicant such as Wolverine to
obtain prior consent from the local governments affected by a project. We disagree. Subrule
601(1)(c) clearly and unambiguously provides that a pipeline corporation such as Wolverine is
required by statute to obtain the PSC's approval for any new construction project. The subrule
directs the reader to Act No. 16 of MLC 483.1 et seq., as the governing body of law. 1929 PA
16, MCL 483.1 et seq., regulates the buying, selling, and transporting of crude oil and petroleum
products through pipelines. It also regulates the use of public highways for that purpose. The
city has not pointed to any portion in the statute, and we have not found any, that requires a
person acting under 1929 PA 16 to submit with its application the consent of the affected local
governments.
The parties also dispute the meaning of the words "if required" in subrule 601(2)(d). The
city contends that it means "if required by law," while the PSC staff and Wolverine contend that
it means "if required by any of the provisions of subrule (1)." Because the PSC, as a creature of
the Legislature, is without authority to establish rules that violate statutory rules and regulations,
MCL 483.8, we conclude that the requirement provision in subrule 601(2)(d) would refer back to
the statutory provisions listed in subrule 601(1). As previously discussed, MCL 483.1 et seq.,
does not require the prior consent of the affected local governments. Given the above, we
conclude that the PSC properly interpreted this rule.
The city also asserts that Const 1963, art 7, § 29 and subsection 13(1) of the state
highway code, MCL 247.183(1), require a city's consent before a pipeline company acting under
subrule 601(1)(c) may submit its application to the PSC. In pertinent part, Const 1963, art 7, §
29 provides:
No . . . corporation, public or private, operating a public utility shall have
the right to the use of the highways . . . or other public places of any county,
township, city or village for . . . pipes . . . or other utility facilities, without the
consent of the duly constituted authority of the county, township, city or village . .
. . Except as otherwise provided in this constitution the right of all counties,
townships, cities and villages to the reasonable control of their highways, streets,
alleys and public places is hereby reserved to such local units of government.
While Const 1963, art 7, § 29 confers upon cities reasonable control over state highways
located within their boundaries, Compton Sand & Gravel Co v Dryden Twp, 125 Mich App 383,
394; 336 NW2d 810 (1983), there is nothing in the language of the above constitutional
provision that mandates the consent of the city before an application is submitted to the PSC.3
Therefore, we look to the statutory provision at issue.4
3
Because the parties have not argued the issue below or properly briefed it on appeal, and in
light of our resolution of the statutory provision at issue, we do not address the question whether
(continued…)
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The city contends that MCL 247.183(1) mandates the prior consent of the city. The PSC
staff and Wolverine, on the other hand, claim that the language of the statute, as amended, clearly
excepted Wolverine's project from the statute's control.
The relevant part of chapter 247 of the state highway code, MCL 247.171 et seq., was
enacted as part of 1925 PA 368. Section 13 of the statute, MCL 247.183, was amended several
times. Before 1989, it consisted of a single paragraph that contained two sentences. In pertinent
part, the statute authorized public utility companies "to enter upon, construct and maintain"
pipelines under any public road, provided that
[e]very such telegraph, telephone, power, and other public utility company, cable
television company and municipality, before any of the work of such construction
and erection shall be commenced, shall first obtain the consent of the duly
constituted authorities of the city, village, or township through or along which
said lines and poles are to be constructed and erected. [Former MCL 247.183,
amended by 1972 PA 268.]
In 1989, the Legislature amended section 13 by adding a second subsection and by
changing phrases within the first subsection. The first subsection of the 1989 amendment read in
pertinent part:
Telegraph, telephone, power, and other public utility companies, and cable
television companies and municipalities are authorized to enter upon, construct
and maintain telegraph, telephone, or power lines, pipe lines, wires, cables, poles,
conduits, sewers and like structures upon, over, across, or under any public road,
bridge, street, or public place, except longitudinally within limited access highway
rights of way, and across or under any of the waters in this state, with all necessary
erections and fixtures for that purpose. A telegraph, telephone, power, and other
public utility company, cable television company, and municipality, before any of
this work is commenced, shall first obtain the consent of the governing body of
the city, village, or township through or along which these lines and poles are to
be constructed and maintained. [Former MCL 247.183(1), amended by 1989 PA
215 (emphasis added).]
Thus, the Legislature inserted the phrase "except longitudinally within limited access
highway rights of way" in the first sentence. It is clear that, in the 1989 amendment, projects that
were longitudinal within limited access highway rights-of-way were exempted from the
(…continued)
Const 1963, art 7, § 29 mandates the "consent" of the affected local government when a highway
not owned by the affected local government is involved.
4
The city cursorily mentions MCL 247.184, which mandates the consent of county and state
authorities. Because the city does not discuss this statute in its brief on appeal, we do not address
it.
-5-
provisions of the first subsection of the statute and did not require the consent of the affected
village, city, or township.
The newly written second subsection of the 1989 amendment granted certain utilities the
authority to enter upon, construct, and maintain utility lines longitudinally within limited access
highway rights-of-way, as follows:
The state transportation department may permit a utility as defined in 23
C.F.R. 645.105(m) to enter upon, construct, and maintain utility lines and
structures, longitudinally within limited access highway rights of way in
accordance with standards approved by the state transportation commission. Such
lines and structures shall be underground or otherwise constructed so as not to be
visible. The standards shall conform to governing federal laws and regulations
and may provide for the imposition of a reasonable charge for longitudinal use of
limited access highway rights of way. The imposition of such reasonable charges
constitutes a governmental function, offsetting a portion of the capital and
maintenance expense of the limited access highway, and is not a proprietary
function. All revenue received under this subsection shall be used for capital and
maintenance expenses incurred for limited access highways. [Former MCL
247.183(2), amended by 1989 PA 215.]
However, the 1989 amendment was short-lived. In 1994, the Legislature amended MCL
247.183 to read as follows (the language inserted in the 1994 amendment, 1994 PA 306, is
italicized):
(1) Telegraph, telephone, power, and other public utility companies, cable
television companies, and municipalities may enter upon, construct, and maintain
telegraph, telephone, or power lines, pipe lines, wires, cables, poles, conduits,
sewers or similar structures upon, over, across, or under any public road, bridge,
street, or public place, including, subject to subsection (2), longitudinally within
limited access highway rights-of-way, and across or under any of the waters in this
state, with all necessary erections and fixtures for that purpose. A telegraph,
telephone, power, and other public utility company, cable television company, and
municipality, before any of this work is commenced, shall first obtain the consent
of the governing body of the city, village, or township through or along which
these lines and poles are to be constructed and maintained.
(2) A utility as defined in 23 C.F.R. 645.105(m) may enter upon, construct,
and maintain utility lines and structures longitudinally within limited access
highway rights-of-way in accordance with standards approved by the state
transportation commission that conform to governing federal laws and
regulations. The standards shall require that the lines and structures be
underground and be placed in a manner that will not increase highway
maintenance costs for the state transportation department. The standards may
provide for the imposition of a reasonable charge for longitudinal use of limited
access highway rights-of-way. The imposition of a reasonable charge is a
-6-
governmental function, offsetting a portion of the capital and maintenance
expense of the limited access highway, and is not a proprietary function. The
charge shall be calculated to reflect a 1-time installation permit fee that shall not
exceed $1,000.00 per mile of longitudinal use of limited access highway rights-ofway with a minimum fee of $5,000.00 per permit. All revenue received under this
subsection shall be used for capital and maintenance expenses incurred for limited
access highways. [MCL 247.183(1), (2).]
In the first subsection, the Legislature deleted the phrase "except longitudinally within
limited access highway rights of way" and replaced it with the phrase "including, subject to
subsection (2), longitudinally within limited access highway rights-of-way . . . ." In the second
subsection, the Legislature inserted language that permitted utilities, as defined in 23 CFR
645.105(m) (hereafter a § 105[m] utility), to lease at reasonable costs the rights-of-way of
limited-access highways for the construction and maintenance of utility lines.
Wolverine contends that it is a § 105(m) utility.5 Wolverine reasons that, because it is not
any of the entities listed in subsection 13(1), it is governed only by subsection 13(2). Both
Wolverine and the PSC staff assert that the words "subject to subsection (2)" in the first
subsection would exempt a pipeline company from the requirements of the first subsection. We
disagree. Neither party addresses the relevance of the word "including" in the first subsection or
the language of the second subsection. When construing statutes, the primary task of this Court
is to discern and give effect to the intent of the Legislature. Huggett v Dep't of Natural
Resources, 464 Mich 711, 717; 629 NW2d 915 (2001). "If the statutory language is clear and
unambiguous, then we conclude that the Legislature intended the meaning it clearly and
unambiguously expressed, and the statute is enforced as written." Id. Unless defined in the
statute, "every word or phrase of a statute should be accorded its plain and ordinary meaning,
taking into account the context in which the words are used." Yudashkin v Holden, 247 Mich
App 642, 650; 637 NW2d 257 (2001) (quotation omitted).
The first sentence in subsection 13(1) provides that the described persons may enter upon,
construct and maintain pipelines, "including, subject to subsection (2), longitudinally within
limited access highway rights-of-way . . . ." According to Random House Webster's College
Dictionary (1997), the word "include" means "to contain or encompass as part of a whole."
Punctuation is an important factor in determining legislative intent, and the rules of grammar are
presumed to have been known to the Legislature. Kizer v Livingston Co Bd of Comm'rs, 38 Mich
App 239, 251; 195 NW2d 884 (1972). We conclude that, by inserting the word "including," and
5
23 CFR 645.105(m) defines "utility" as
a privately, publicly, or cooperatively owned line, facility or system for producing,
transmitting, or distributing communications, cable television, power, electricity, light,
heat, gas, oil, crude products, water, steam, waste, storm water not connected with
highway drainage, or any other similar commodity, including any fire or police signal
system or street lighting system, which directly or indirectly serves the public. The term
utility shall also mean the utility company inclusive of any wholly owned or controlled
subsidiary.
-7-
by using the separating commas before and after the phrase "subject to subsection (2)," the
Legislature subjected such projects to the requirements of both the first and second subsections
of § 13. Therefore, a project that is "longitudinally within limited access highway rights-of-way"
is one of the defined projects listed in the first sentence of the statute. The sentence also provides
that such a project is also subject to subsection 13(2), which defines the type of facilities that may
enter into such a project. In this case, it is undisputed that Wolverine is a § 105(m) utility. Thus,
Wolverine and its project are subject to the first sentence of the first subsection and Wolverine
may enter upon, construct, and maintain the pipeline project at issue.
The second sentence in the first subsection provides that the described persons must first
obtain the consent of the affected local governments before the work is commenced. It is unclear
whether a § 105(m) utility is subject to the requirement of the second sentence. The second
sentence makes no reference to a § 105(m) utility nor does it mention a project that involves the
rights-of-ways of limited-access highways. However, the first sentences in both subsections are
repetitive in the phrase "may enter upon, construct, and maintain" and the phrase "longitudinally
within limited access highway rights-of-way." We presume that every word in a statute has some
meaning, and this Court should avoid any construction that would render any part of a statute
surplusage or nugatory. Karpinski v St John Hosp-Macomb Ctr Corp, 238 Mich App 539, 543;
606 NW2d 45 (1999). To conclude that the Legislature did not intend to subject a § 105(m)
utility to the first subsection in its entirety would render the above phrases redundant. Therefore,
we conclude that the Legislature intended to subject a project involving the rights-of-way of
limited-access highways to the first subsection in its entirety.
The next question concerns when the consent of a local unit of government is required.
The second sentence in the first subsection provides that consent should be obtained before "any
of this work" commences. The Legislature is presumed to have intended the meaning it plainly
expressed. Indenbaum v Michigan Bd of Medicine (After Remand), 213 Mich App 263, 270; 539
NW2d 574 (1995). There is nothing in the language of the sentence that requires the consent to
be obtained before seeking the approval of the PSC.
The PSC staff argues that the language in the second subsection excludes the project from
the requirements of the first subsection. We disagree. The language of the second subsection
focuses on the technical specifications of underground pipelines and the fees charged for the use
of a highway's right-of-way. There is nothing in the language of the second subsection that
would exclude a pipeline company from the requirements of the first subsection.
The city next argues that the doctrine of judicial economy would require the prior consent
of the affected governments. The city explains that the PSC grant of approval for the project
would allow Wolverine to begin its construction without the consent of the affected local
governments. According to the city, this would necessitate litigation in the circuit court to bar
such action until the consent is obtained. We disagree. As the Supreme Court has explained,
"our function is not to redetermine the Legislature's choice or to independently assess what
would be most fair or just or best public policy." Rather, our function "is to discern the intent of
the Legislature from the language of the statute it enacts." Hanson v Mecosta Co Rd Comm'rs,
465 Mich 492, 504; 638 NW2d 396 (2002). Here, the language of the statute requires the
consent of the affected governments only before the person enters upon, constructs and maintains
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the project.6 The city points to no statute or case law issued during the more than seventy years
that the statute has existed that requires local consent before an application is submitted to the
PSC. Accordingly, the PSC properly determined that Wolverine need not submit with its
application the consent of the affected local governments.
B. Evidence of Settlement Negotiations
The city next argues that the referee improperly barred evidence of earlier negotiations
between Wolverine and the PSC staff that resulted in their agreement to adopt the instant
pipeline route. The city argues that the settlement negotiations were part of a prior case and that
the PSC improperly affirmed the referee's finding that the evidence constituted a settlement
agreement in the present case and accordingly, was inadmissible pursuant to MRE 408.
A decision of the PSC is unreasonable when it is not supported by the evidence. In re
Sprint Communications Co, LP, Complaint, supra. Where the PSC engages in fact-finding, such
findings must be supported by competent, material, and substantial evidence on the whole record.
City of Marshall v Consumers Power Co (On Remand), 206 Mich App 666, 676-677; 523 NW2d
483 (1994). Here, the PSC explained in its order that the PSC staff rejected as unreasonable the
route initially proposed in Case No. U-12334 because it was designed to be routed in a densely
populated, highly developed area. The referee in that case agreed with the PSC staff. Before the
PSC issued its order in that case, Wolverine withdrew the disputed route from the PSC's
consideration and it negotiated alternative routes with the PSC staff. It is undisputed that the
instant case was filed to submit for the PSC's consideration the alternative route that was
acceptable to both parties. Because the city has not demonstrated that the PSC's decision was
unreasonable, we conclude that the PSC's decision to uphold the referee's finding that the present
case constituted a continuation of Case No. U-12334 is supported by the evidence.
The city also asserts that the evidence was admissible pursuant to MRE 408 for other
reasons: namely, to show that the above discussions violated public-policy considerations and the
equal-protection rights of Lansing's minority population, and to impeach Wolverine's stated
reason for pursuing the instant route. The city misstates the record. It never raised the above
arguments before the referee. Rather, it subsequently raised those claims before the PSC. The
PSC agreed that evidence of the discussions may have been properly admissible to demonstrate
bias or wrongful intent, but it determined that the city failed to state those reasons to the referee.
We conclude that the PSC's determination was proper.
C. The Equal Protection Clauses
The city and Dedden assert that the PSC order violates the equal protection clauses of the
United States and the Michigan constitutions and MCL 483.5 by discriminating against
6
We note that a city has the right "to grant or withhold consent under Const 1963, art 7, § 29,
provided the [city's] decision is not arbitrary and unreasonable." South Haven v South Haven
Charter Twp, 204 Mich App 49, 52; 514 NW2d 176 (1994), citing Union Twp v Mt Pleasant,
381 Mich 82, 90; 158 NW2d 905 (1968).
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minorities. The federal and Michigan constitutions guarantee equal protection of the law. US
Const, Am XIV; Mich Const 1963, art 1, § 2. Michigan's equal-protection provision has been
held to be coextensive with the analogous provision in the federal constitution. Crego v
Coleman, 463 Mich 248, 258; 615 NW2d 218 (2000). The guarantee of equal protection under
the federal and state constitutions mandates that people under similar circumstances be treated
alike; equal protection does not require that persons under different circumstances be treated the
same. Yaldo v North Pointe Ins Co, 217 Mich App 617, 623; 552 NW2d 657 (1996), aff 'd 457
Mich 341; 578 NW2d 274 (1998).
In this case, the PSC determined that the population density of the first pipeline route and
the instant route were not similar and that the persons the city and Dedden sought to protect were
not similarly situated to the persons who would have been affected by the initial proposed
pipeline route. On appeal, the city and Dedden do not challenge the above determination as
unlawful or unreasonable. Instead, they rely on statistical data from the United States 2000
Census showing that the minority population along the proposed route was above the national
urban average. We decline to consider this data. The PSC, in its order, struck the data from
evidence because the city and Dedden failed to have them properly admitted into evidence,
although they had the opportunity to do so. Accordingly, the city and Dedden have failed to
show that the PSC's determination with respect to the equal-protection claim was unlawful or
unreasonable.
The city and Dedden also argue that the PSC, by affirming the referee's decision to
exclude evidence of the prior negotiations between Wolverine and the PSC staff, improperly
denied the city and Dedden the opportunity to pursue their claim of environmental racism.7 We
disagree with the city's assertion that the claim of environmental racism was properly raised
below. This claim is raised for the first time on appeal. Accordingly, we decline to address it.
Etefia v Credit Technologies, Inc, 245 Mich App 466, 471-472; 628 NW2d 577 (2001).
D. The Reasonableness of the PSC Order
The city and Dedden argue that the PSC's order violates the public interest and is
unsupported by substantial, material, and competent evidence. This Court gives deference to the
administrative expertise of the PSC, and we will not substitute our judgment for that of the PSC.
Residential Ratepayer Consortium v Public Service Comm, 239 Mich App 1, 3; 607 NW2d 391
(1999). The city and Dedden must show that the PSC's order was arbitrary, capricious, an abuse
of discretion, or not supported by the record. Michigan Intra-State Motor Tariff Bureau v Public
Service Comm, 200 Mich App 381, 387-388; 504 NW2d 677 (1993).
7
The city and Dedden assert that environmental racism is a relatively new area of law and occurs
whenever corporations or governments burden minority communities with environmental
hazards. The issue has not been addressed by Michigan's appellate courts in a published opinion.
The city and Dedden do not point to any published case law from sister jurisdictions that have
addressed the matter.
-10-
The city and Dedden specifically challenge the PSC's findings with respect to several
details of the complex aspects of the proposed pipeline system related to fire safety, motorist risk,
environmental contamination, drinking- and surface-water contamination, the city's master plan,
and third-party damages. They argue that the only competent evidence in this case was the
evidence presented by the city. We disagree. An extensive record has been compiled in this case
covering the details of each of the disputed matters. The record shows the existence of
conflicting testimony and evidence. The mere existence of conflicting expert testimony and
evidence is insufficient to overcome the prima facie presumption that the PSC's order is lawful
and reasonable. MCL 462.26(8). As this Court has explained, it is for the PSC to weigh
conflicting opinion testimony of the qualified and competent experts to determine how the
evidence preponderated. North Michigan Land & Oil Corp v Public Service Comm, 211 Mich
App 424, 439; 536 NW2d 259 (1995), quoting Antrim Resources v Public Service Comm, 179
Mich App 603, 620; 446 NW2d 515 (1989). Expert opinion testimony is "substantial" if offered
by a qualified expert who has a rational basis for his views, regardless of whether other experts
disagree. Id. The testimony of even one expert can be "substantial" evidence in a PSC case.
Michigan Intra-State Motor Tariff Bureau, supra at 388. The disputed factual matters were
properly within the sphere of the administrative expertise of the PSC and we will not substitute
our judgment for that of the PSC on such matters. From our review of the whole record, we
conclude that the PSC's determination that the proposed pipeline is reasonably designed and
routed is supported by competent, material, and substantial evidence.
Affirmed.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Peter D. O'Connell
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