MAYOR OF LANSING V MPSC
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 9, 2004
MAYOR OF THE CITY OF LANSING,
CITY OF LANSING, and INGHAM
COUNTY COMMISSIONER LISA DEDDEN,
Appellees/Cross-Appellants,
v
No. 124136
MICHIGAN PUBLIC SERVICE
COMMISSION and WOLVERINE PIPE
LINE COMPANY,
Appellants/Cross-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
In
this
defendant
obtain
case,
Wolverine
the
we
are
Pipe
permission
of
called
Line
the
on
to
Company
city
determine
(Wolverine)
of
Lansing
if
must
before
constructing a gas pipeline longitudinally in the right-ofway adjacent to an interstate highway when part of the
pipeline
would
be
constructed
within
city
limits.
We
affirm the Court of Appeals decision that Wolverine must
obtain local consent but that such consent need not be
obtained
before
the
application
is
submitted
to
the
Michigan Public Service Commission (PSC).
I
Wolverine
constructs,
is
an
operates,
interstate
and
maintains
transporting petroleum products.
twenty-six-mile
liquid
common
carrier
pipelines
that
used
for
It planned to construct a
petroleum
pipeline
along
the
Interstate-96 (I-96) corridor, within the right-of-way of
the interstate highway.
control
and
Although the land is under the
jurisdiction
of
the
state’s
Department
of
Transportation, several miles of the highway are within the
city limits.
In
December
2001,
Wolverine,
before
commencing
any
work on the project, filed an application with the PSC for
approval of its plan.
Ingham
County
intervene
in
The mayor and the city, as well as
Commissioner
the
PSC
Lisa
Dedden,
proceeding.1
The
were
allowed
application
treated as a contested case and a hearing was held.
to
was
The
city moved to dismiss the application, arguing that the PSC
had no jurisdiction because Wolverine’s application lacked
the requisite consent from the city.
1
The PSC denied the
Because of the similarity of interests, these three
parties will be referred to as “the city.”
2
motion and authorized the project, finding that the city’s
consent
was
not
required
to
accompany
the
application.
With regard to the reasonableness of the project, the PSC
determined that there were no equal protection violations
in the route selection and found the project necessary and
safe.
The city appealed to the Court of Appeals.
The Court
reviewed the plain language of MCL 247.183 and determined
that
the
statute
did
require
local
consent
before
construction began, but not before the applicant sought PSC
approval.
sides
257 Mich App 1, 16; 666 NW2d 298 (2003).
sought
leave
to
appeal.
Wolverine
and
the
Both
PSC
asserted that no local approval is required, and the city
argued
stage.
that
approval
This
applications.
Court
is
required
granted
during
leave
to
the
application
appeal
on
both
469 Mich 898 (2003).
II
We
review
construction.
de
novo
a
question
of
statutory
In construing a statute, we are required to
give effect to the Legislature’s intent.
That intent is
clear if the statutory language is unambiguous, and the
statute
must
then
be
enforced
as
written.
Weakland
v
Toledo Engineering Co, 467 Mich 344, 347; 656 NW2d 175
(2003).
We use the same rules of construction both for
3
statutes
and
for
administrative
regulations.
Soap
&
Detergent Ass’n v Natural Resources Comm, 415 Mich 728,
756-757; 330 NW2d 346 (1982).
III
The statute that controls this case is MCL 247.183,
which reads:
(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
4
a 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
of way 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.
Wolverine does not here dispute that it is both a
“public utility,” as that phrase is used in subsection 1 of
the statute, as well as a subsection 2 “utility as defined
in 23 C.F.R 645.105[.]”2
Definitionally, both subsections
are applicable to Wolverine unless something in the statute
excludes Wolverine from the reach of one subsection or the
other.
Wolverine argues that such exclusionary language is
found in subsection 1, which, paraphrased, states that any
covered utility, including those subject to subsection 2,
2
This includes
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, which
directly or indirectly serves the public.
The
term utility shall also mean the utility company
inclusive of any wholly owned or controlled
subsidiary. [23 CFR 645.105.]
5
may use a public road longitudinally within the limited
access
highway
right-of-way
if
it
has
local
permission
before work commences.
The company’s construction of this
passage
quoted
is
that
the
phrase
serves
to
remove
subsection 2 utilities from subsection 1 rules and thus
such utilities must only comply with the requirements of
subsection
2.
In
support
of
this,
Wolverine
primarily
contends that this reading is the only proper construction
because otherwise the language “subject to subsection (2)”
would be left without meaning.
are
to
be
avoided,
and
Because such constructions
because
Wolverine
believes
its
reading gives the phrase meaning, it urges us to adopt that
reading.3
We decline to do so, as did the Court of Appeals
before us, because we think the reading urged by the city
also
gives
meaning
to
and
more
accurately
reflects
the
statute.
3
Wolverine also suggests several ways in which the
statute could have been worded to clearly indicate an
intent to impose both subsections on longitudinal projects.
Wolverine posits that because the statute is not worded in
one of the ways it suggests, it follows that the
Legislature intended to impose only the requirements of
subsection 2 on longitudinal projects.
This argument is
unconvincing because, while the Legislature doubtlessly
could have made its intentions clearer in this statute, the
fact that it has not done so by adopting any of Wolverine’s
suggested approaches does not relieve this Court of giving
meaning to what actually was written.
6
We note that Random House Webster’s College Dictionary
(2001 ed), defines “subject” when used as an adjective in
six ways.
The most applicable is the fourth definition,
“dependent upon something (usu. fol. by to): His consent is
subject to your approval.”
This definition, in essence,
gives to the word “subject” the meaning, “dependent upon.”
When
used
as
it
is
here
and
in
other
places
in
the
Legislature’s work, it is clear that the subsections work
together,4
see,
e.g.,
That
both
subsections
is,
MCL
15.443,
are
18.1237,
applicable
and
168.677.
because
the
relevant words in subsection 1, the “subject to” words, do
not mean that the requirements of subsection 1 do not apply
to those utilities that are covered also by subsection 2.
Further, because the Legislature expressly (and uniquely)
used the word “including” before the “subject to” phrase,
the implication is even stronger that the two subsections
4
Moreover, even if one were inclined to utilize one of
the other five definitions in the dictionary (“under the
domination, control, or influence of something [often fol.
by to]”; “being under the dominion, rule, or authority of
a sovereign, state, etc. [often fol. by to]”; “open or
exposed [usu. fol. by to]: subject to ridicule”; “being
under the necessity of undergoing something [usu. fol. by
to]: All beings are subject to death”; or “liable, prone
[usu. fol. by to]: subject to headaches”), these also lead
to the same conclusion that “dependent upon” yields: that
interaction, rather than disconnection, of the subsections
is called for.
7
are to be read in combination.
Thus, subsection 1 means
the project cannot go forward without local approval and,
not at all incompatibly, subsection 2 means it cannot go
forward unless it meets certain construction standards.
We
are
aware,
and,
indeed,
Wolverine
forcefully
argues, that this reading of the statute may facilitate
frivolous and potentially crippling resistance from local
governments along the route of a utility project.
Such an
argument, however, misunderstands the role of the courts.
Our task, under the Constitution, is the important, but yet
limited,
duty
to
read
into
and
interpret
Legislature has actually made the law.
what
the
We have observed
many times in the past that our Legislature is free to make
policy choices that, especially in controversial matters,
some observers will inevitably think unwise.
This dispute
over the wisdom of a law, however, cannot give warrant to a
court to overrule the people’s Legislature.
See Oakland Co
Rd Comm’rs v Michigan Property & Cas Guaranty Ass’n, 456
Mich
590,
612-613;
575
NW2d
751
(1998).
We
therefore
affirm the Court of Appeals decision that subsection 1 as
well as subsection 2 control and Wolverine is required by
MCL 247.183 to get local consent before constructing its
pipeline longitudinally in the right-of-way of I-96.
8
IV
Because we find that Wolverine is required to obtain
local consent for its project, we must also address the
question of when that consent must be obtained.
The Court
of Appeals found that local consent only has to be secured
before work is commenced.
Thus, at the time the permit
from the PSC was sought, proof of local consent did not
need to accompany the application.
We agree with this
holding.
We
begin
our
analysis
with
the
statute
that
unambiguously requires local consent “before any of this
work is commenced . . . .”
the
PSC’s
applicable
rule,
MCL 247.183.
1999
AC,
We note also that
R
460.17601(2)(d),
indicates that applications for new construction of utility
facilities “shall set forth, or by attached exhibits show,
.
.
.
franchise
[t]he
or
municipality
consent
has
from
been
which
the
obtained,
appropriate
if
required,
together with a true copy of the franchise or consent.”5
5
1999 AC, R 460.17601 reads in its entirety:
(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
(continued…)
9
(…continued)
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:
(a) The name and address of the applicant.
(b) The city, village, or township affected.
(c) The nature of the utility service to be
furnished.
(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.
(e) A full description of the proposed new
construction or extension, including the manner
in which it will be constructed.
(continued…)
10
The PSC rule only requires utilities to provide proof
of local consent if such is required to be obtained at the
time the application is made, and the statute here does not
require it.
Thus, we agree with the PSC and the Court of
Appeals that proof of local consent need not be filed with
the application for this project.
Although local consent
was not filed with the application, the statute and the
rules have been complied with and the PSC proceeded well
within its authority.
V
Concerning
the
dissent,
we
offer
the
following
observations:
(1) The justices in this majority do not necessarily
disagree with the dissent that MCL 247.183, as we construe
it here, may be “cumbersome.”
Post at 17.
Nor, by this
opinion, does any justice in this majority suggest that,
had they been in the Legislature, they would have cast a
(…continued)
(f) The names of all utilities rendering the
same type of service with which the proposed new
construction or extension is likely to compete.
(3) A utility that is classified as a
respondent pursuant to the provisions of R
460.17101 may participate as a party to the
application proceeding without filing a petition
to intervene.
It may file an answer or other
response to the application.
11
vote in support of MCL 247.183 as it is interpreted here.
Nor are the justices in this majority oblivious to the
practical difficulties that our interpretation of the law
may
impose
Company.
upon
utilities
such
as
Wolverine
Pipe
Line
Rather, what we decide today is merely that the
language of MCL 247.183 compels a particular result, and
the justices of this majority do not believe themselves
empowered to reach a different result by substituting their
own policy preferences for those of the Legislature.
(2)
Rather
than
interpreting
the
dissent
prefers
247.183,
the
to
language
MCL
what
divine
of
it
characterizes as the Legislature’s “true intent.”
1.
Post at
This “true intent” is not one to be gleaned from the
words actually enacted into law by the Legislature, but
through reliance on various random facts and circumstances
that the dissent selectively picks out from the universe of
potentially
available
facts
and
circumstances.
In
contrast, rather than engaging in legislative mind-reading
to discern the “true intent” of the law, we believe that
the best measure of the Legislature’s intent is simply the
words that it has chosen to enact into law.
salutary
consequences,
this
approach
to
Among other
reading
the
law
allows a court to assess not merely the intentions of one
12
or
two
highlighted
members
of
the
Legislature,
but
the
intentions of the entire Legislature.
(3) The dissent avoids the difficult task of having to
read the actual language of the law and determine its best
interpretation by peremptorily concluding that MCL 247.183
is “ambiguous.”
Post at 2.
A finding of ambiguity, of
course, enables an appellate judge to bypass traditional
approaches
to
interpretation
presumptive
“rule[s]
of
and
policy,”
either
see
Klapp
substitute
v
United
Insurance, 468 Mich 459, 474; 663 NW2d 447 (2003), quoting
5 Corbin, Contracts (rev ed, 1998), § 24.27, p 306, or else
to engage in a largely subjective and perambulatory reading
of “legislative history.”
However, as Klapp, relying on
the treatises of both Corbin and Williston, concluded, a
finding of ambiguity is to be reached only after “all other
conventional means of [ ] interpretation” have been applied
and
found
majority
that
the
wanting.6
applies
Klapp,
these
language
of
supra
conventional
MCL
247.183
at
474.
rules
can
and
be
Where
the
concludes
reasonably
understood, the dissent, without demonstrating the flaws of
6
While Klapp concerned contract interpretation and the
instant case statutory interpretation, the rule stated in
Klapp, supra at 474—that ambiguity is a finding of last
resort—applies with equal force whether the court is
interpreting a statutory text or a contractual one.
13
the majority’s analysis except to assert that its opinion
is not in accord with the “true intent” of the Legislature,
opines that an “ambiguity” exists.
An analysis, such as
that of the dissent, that is in conflict with the actual
language of the law and predicated on some supposed “true
intent”
is
necessarily
a
result-oriented
analysis.
In
other words, it is not a legal analysis at all.
(4) In peremptorily reaching its conclusion that MCL
247.183 is “ambiguous,” the dissent entirely misstates the
standard
hasten
for
discerning
findings
of
ambiguity.
“ambiguity”
by
The
courts
dissent
by
would
predicating
these findings on the basis of whether “reasonable minds
can differ regarding” the meaning of a statute.
Post at 3.
Especially
cases
in
the
context
of
the
types
of
and
controversies considered by this Court—those in which the
parties have been the most determined and persistent, the
most
persuaded
by
the
merits
of
their
own
respective
arguments—it is extraordinarily difficult to conclude that
reasonable
minds
cannot
differ
on
the
correct
outcome.
That is not, and has never been, the standard either for
resolving cases or for ascertaining the existence of an
ambiguity in the law.
dissenting
(and
The law is not ambiguous whenever a
presumably
reasonable)
justice
would
interpret such law in a manner contrary to a majority.
14
Where a majority finds the law to mean one thing and a
dissenter
finds
concluded
it
that
to
the
mean
law
another,
is
neither
“ambiguous,”
may
and
have
their
disagreement by itself does not transform that which is
unambiguous
provision
into
of
that
the
which
law
is
is
ambiguous.
ambiguous
Rather,
only
if
a
it
“irreconcilably conflict[s]” with another provision, id. at
467,
or
when
it
single meaning.
is
equally
susceptible
to
more
than
a
In lieu of the traditional approach to
discerning “ambiguity”—one in which only a few provisions
are truly ambiguous and in which a diligent application of
the rules of interpretation will normally yield a “better,”
albeit
perhaps
dissent
would
imperfect,
create
a
interpretation
judicial
regime
of
in
the
law—the
which
courts
would be quick to declare ambiguity and quick therefore to
resolve cases and controversies on the basis of something
other than the words of the law.7
implies
that
the
decision
of
the
Moreover, the dissent
United
States
Supreme
Court in Yellow Transportation, Inc, v Michigan, 537 US 36;
7
The
dissent
also
confusingly
conflates
unambiguousness and clarity. Post at 5. Instead, a great
many unambiguous provisions of the law are far from clear.
The interpretative process is often quite difficult,
struggling to remove a great deal of textual underbrush. A
provision of law that is unambiguous may well be one that
merely has a better meaning, as opposed to a clear meaning.
15
123 S Ct 371; 154 L Ed 2d 377 (2002), should be read to
compel the adoption of his view of how we determine if a
statute is ambiguous.
Yellow
We believe this is a misreading of
Transportation.
established
no
The
in
rule
United
Yellow
States
Supreme
Court
Transportation
determining or resolving statutory ambiguity.
for
Moreover,
even if the Court had fixed upon a method it chooses to use
to determine if a statute is ambiguous, it could not be
understood to have superceded the rules that state courts
may use in a like undertaking.
The United States courts,
of whatever sort, when they rule, are of course always
respectfully
reviewed
by
state
court
judges
but
such
holdings are only binding in a narrow range of cases such
as, classically, in the construction and meaning of the
United
States
Constitution.
Statutory
techniques are not of this genre.
construction
With that distraction
clarified, Yellow Transportation should be understood as a
narrow holding that stands for the simple proposition that
if a federal administrative agency has given a defensible
construction to a federal statute that it applied, that all
state
courts
alternative
with
no
must
follow
constructions
such
situation
that
are
in
also
this
16
construction
even
reasonable.
We
case,
and
thus
if
deal
Yellow
Transportation
is
inapposite
in
all
particulars
to
this
matter.
(5)
The
dissent
wrongly
asserts
that
“the
majority
fails to construe subsection 1 in light of subsection 2
. . . .”
Post at 6-7.
1
the
means
Rather, we assert that “subsection
project
cannot
go
forward
without
local
approval and, not at all incompatibly, subsection 2 means
it cannot go forward unless it meets certain construction
standards,” p 8, and further assert that the “including,
subject to subsection (2)” language in subsection 1 makes
“the
implication
.
.
.
even
stronger
subsections are to be read in combination.”
the
dissent
that
misapprehends
the
that
the
Pp 7-8.
relationship
two
It is
between
subsections 1 and 2 by attempting to read these provisions
in isolation and concluding that when read in this manner
they
compel
different
results
and
thus
are
“ambiguous.”
However, the subsections of MCL 247.183, as with all other
provisions of law, are not to be read discretely, but as
part of a whole.
The dissent errs in first reading these
subsections “alone” and then asserting that it is reading
these subsections “together” when it merely combines its
“alone” interpretations.
Post at 6.
Rather, to read the
law as a whole, it must, in fact, be read as a whole.
interpretative
process
does
not,
17
as
the
dissent
The
does,
remove
words
and
these
words
and
independent
of
provisions
from
provisions
such
context,
their
with
and
context,
meanings
then
context-free meanings back into the law.
infuse
that
reimport
are
these
The law is not
properly read as a whole when its words and provisions are
isolated and given meanings that are independent of the
rest of its provisions.
This is especially true when, as
here, one of these provisions
expressly cross-references
the other.
(6) Therefore, even if the existence of a reasonable
disagreement were the standard for identifying ambiguity—
which it is not—the dissent’s interpretation of MCL 247.183
is simply not a reasonable one when subsections 1 and 2 are
read together, as opposed to being read discretely.
It
cannot correctly be said that these subsections “apply to
different entities,” post at 7, when subsection 1 expressly
observes
that
its
subsection (2).”
provisions
are
made
“subject
to
Contrary to the mandate of this Court,
the dissent fails to “give effect to every word, phrase,
and clause in a statute and avoid an interpretation that
would render any part of the statute surplusage,” State
Farm & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644
NW2d
715
(2002),
by
essentially
18
ignoring
the
term
“including
subject
to
subsection
(2)”
in
its
interpretation.
(7) The dissent further asserts that MCL 267.183 is
ambiguous because “application of the statute to the facts
has
rendered
uncertain.”
means.
the
correct
Post at 4.
application
of
the
statute
It is hard to know what this
While any interpretation of the law is in some
sense “fact specific,” the dissent fails to identify why
the interpretation of this statute, any more than any other
statute, is rendered ambiguous by the instant facts.
majority’s
utility
view
of
constructs
the
a
law
is
that,
pipeline
or
whenever
other
a
utility
This
public
project
longitudinally within limited access highway rights-of-way,
MCL 247.183 requires that the utility must both obtain the
consent
of
the
local
governing
body
(subsection
1)
and
construct the pipeline in accordance with state and federal
standards (subsection 2).
Is it the dissent’s view that
its interpretation pertains in some instances but not in
others?
If not, what is the relevance of the dissent’s
observation that its interpretation is “fact specific”?
(8)
Moreover,
even
if
MCL
247.183
were
truly
ambiguous, the dissent’s analysis of what it views as the
relevant
legislative
history
is
altogether
unpersuasive.
In In re Certified Question (Kenneth Henes v Continental
19
Biomass Ind, Inc), 468 Mich 109, 115 n 5; 659 NW2d 597
(2003),
this
history
is
degrees
of
Court
of
emphasized
equal
quality
that
value,
and
not
which
utility
all
legislative
“results
of
in
legislative
varying
history.”
There, we stated that examples of “the highest quality of
legislative
history
Legislature
from
that
relates
which
a
to
court
an
may
action
draw
of
the
reasonable
inferences about the Legislature’s intent with respect to
an
ambiguous
statutory
provision”
are
“actions
of
the
Legislature intended to repudiate the judicial construction
of a statute” or “actions of the Legislature in considering
various alternatives in language in statutory provisions
before settling on the language actually enacted.”
Id.
It
is noteworthy that the dissent fails to rely on legislative
history
of
either
type.
Instead,
the
dissent
largely
relies on the least persuasive form of legislative history—
staff
analyses—which
diminished
judicial
we
quality,”
and
consideration
provisions . . . .”
have
in
found
thus
“are
resolving
are
of
“considerably
entitled
ambiguous
to
little
statutory
Id.8
8
“The problem with relying on bill analyses is that
they do not necessarily represent the views of even a
single legislator. Rather, they are prepared by House and
Senate staff.
Indeed, the analyses themselves note that
they do not constitute an official statement of legislative
(continued…)
20
(9)
Even
examining
this
legislative
history
on
the
dissent's own terms, we are perplexed about how it supports
the dissent’s position.
For example, the dissent cites the
fact that “SB 1008 was passed without a single ‘nay’ vote
in either the House or Senate . . . .”
Post at 15.
How
does this fact, this bit of legislative history, support
the
dissent’s
understanding
of
the
law,
i.e.,
that
the
Legislature did not intend that utilities must obtain local
consent
before
longitudinal
demonstrate
constructing
highway
anything
utility
projects
in
rights-of-way?
How
does
more
the
Legislature
than
that
this
unanimously approved the statute being considered today?9
Similarly, we believe that the dissent misapprehends
the “changes” in which “the Department of Transportation
(…continued)
intent.” Frank W Lynch & Co v Flex Technologies, Inc, 463
Mich 578, 588 n 7; 624 NW2d 180 (2001).
9
Our confusion over the dissent’s analysis of
legislative history is heightened by its assertion that
“the 1994 statutory amendment transformed Michigan from a
state that generally did not allow entities to use limited
access highway rights-of-way to a state that generally does
allow the use of limited access highway rights-of-way, even
though that use is subject to the requirements contained in
subsection 2.”
Post at 9.
This seems to us not only
incorrect, but also contrary to the dissent’s own prior
analysis, post at 8, in which it notes that pre-1994
subsection 2 did allow use of rights-of-way by federally
defined utilities.
21
and the major state utilities concurred” when SB 1008 was
passed.
Post
at
16.
The
dissent
suggests
that
the
“changes” concerned the overall effect the bill would have
on utility projects constructed in limited access highway
rights-of-way.
However, when read in context, it appears
that the “changes” concerned only the “minor amendments”
made by the House of Representatives to SB 1008 concerning
the fee structure for such projects.
Id.
In fact, when we look at the most valuable type of
legislative history available to us, that is, the actual
change in statutory language made by the Legislature in
1994,
we
dissent’s.
find
support
for
highway
subsection
a
rather
than
the
(2),
strong
longitudinally within limited
rights-of-way”
to
longitudinally
highway rights-of-way.”
be
view,
Regardless of the vote count, the change that
was enacted turned “except
access
our
indication
“including,
within
subject
limited
to
access
We find this legislative action to
that
the
“true
intent”
of
the
drafters was to include such projects in both subsections,
rather than exclude them from subsection 1.
Finally, while we agree with the dissent that the 1994
amendments were intended to “eliminate the ability of the
state to deny access to these locations for construction of
utility services,” the dissent relies on this statement to
22
support
its
proposition
that
“[i]f
the
[1994]
amendment
were meant to remove the state’s power to deny access to
these locations, it certainly could not have meant to grant
this power to local entities . . . .”
Perhaps,
hardly
the
dissent's
self-evident.
assertion
is
There
nothing
is
Post at 16-17.
correct,
but
that
it
is
logically
impels the conclusion that authority is to be denied the
locality
if
it
is
to
be
denied
the
state.
While
the
dissent, and perhaps some justices in this majority, might
question the wisdom of a policy that treats the state and
localities differently in terms of the approval required
for
utility
pipeline
construction,
it
is
hardly
inconceivable that a Legislature committed to local control
or to the principle of subsidiarity might adopt exactly
such a policy.10
10
Although not directly applicable to this case
because I-96 is a federal highway and, thus, not a highway
“of” the city, perhaps the Legislature intended to require
local
approval
because
such
approval
had
been
a
longstanding part of Const 1963, art 7, § 29, which
provides in relevant part:
No person, partnership, association or corporation,
public or private, operating as a public utility shall have
the right to the use of the highways, streets, alleys or
other public places of any county, township, city or
village for wires, poles, pipes, tracks, conduits or other
public utility facilities, without the consent of the duly
constituted authority of the county, township, city or
village . . . .
23
(10) The dissent states that “[w]hile the statute does
not clearly indicate whether the Legislature intended to
require
federally
defined
utilities
to
obtain
local
consent, it appears that this lack of clarity is the result
of a clerical error and the intent was not to reverse the
1989 elimination of local control.” Post at 14 (emphasis
added).
What precisely is this supposed “clerical error”?
What is the dissent’s basis for assuming such a “clerical
error” occurred?
existence
of
What is the evidence in support of the
such
a
“clerical
error”?
Is
the
dissent
justifying its conclusion that MCL 267.183 is “ambiguous”
on the basis of a “clerical error”?
instead,
asserting
that
the
Or is the dissent,
legislative
history
of
MCL
267.183 not only can be considered, but that this history
can supersede its very language?
(11) In the end, the essence of the dissent’s analysis
is its (perhaps understandable) frustrated assertion that
“I cannot believe that the Legislature intended to subject
federally
defined
requirements.”
public
Post at 17.
utilities
to
local
consent
This constitutes less a legal
conclusion than a statement of discontent with the fact
that the Legislature either had a different perspective on
pipeline approval than the dissent or it failed effectively
to communicate what the dissent alone knows to be its “true
24
intent.”
In either case, there is no warrant for this
Court replacing the words of the Legislature with those of
its own.
VI
We conclude that the plain language of MCL 247.183
requires Wolverine to obtain local consent before beginning
construction of its project.
required
at
the
time
of
However, local consent is not
application
to
the
PSC.
We
therefore affirm the decision of the Court of Appeals in
all respects.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
25
S T A T E
O F
M I C H I G A N
SUPREME COURT
MAYOR OF THE CITY OF LANSING,
CITY OF LANSING, and INGHAM
COUNTY COMMISSIONER LISA DEDDEN,
Appellees/Cross-Appellants,
v
No. 124136
MICHIGAN PUBLIC SERVICE
COMMISSION and WOLVERINE PIPE
LINE COMPANY,
Appellants/Cross-Appellees.
_______________________________
WEAVER, J. (concurring).
I concur with the majority in all but part V of its
opinion.
Elizabeth A. Weaver
S T A T E
O F
M I C H I G A N
SUPREME COURT
MAYOR OF THE CITY OF LANSING,
CITY OF LANSING, and INGHAM
COUNTY COMMISSIONER LISA DEDDEN,
Appellees/Cross-Appellants,
v
No. 124136
MICHIGAN PUBLIC SERVICE
COMMISSION and WOLVERINE PIPE
LINE COMPANY,
Appellants/Cross-Appellees.
_______________________________
CAVANAGH, J. (dissenting).
Today,
the
majority
finds
no
ambiguity
in
the
statutory provision at issue and, in so doing, ignores the
true intent of the Legislature.
intent
of
the
Legislature
respectfully dissent.
Because I believe the true
must
be
given
effect,
I
The majority, apparently frustrated
with my refusal to follow its lead and use a dictionary
while turning a blind eye to reality, has issued a lengthy
response to this dissent.
While the majority asserts that
I substitute my own policy preferences for those of the
Legislature, I think it is necessary to note the following
in
regard
to
the
majority’s
approach:
“A
method
of
statutory interpretation that is deliberately uninformed,
and
hence
unconstrained,
increases
the
risk
that
the
judge’s own policy preferences will affect the decisional
process.”
Bedroc Limited, LLC v United States, 541 US ___,
___; 124 S Ct 1587, 1598; 158 L Ed 2d 338 (2004) (Stevens,
J., dissenting).
This
determine
case
requires
whether
us
to
defendant
examine
Wolverine
MCL
Pipe
247.183
Line
to
Company
(Wolverine) must obtain permission from plaintiff city of
Lansing to construct a gas pipeline longitudinally in the
right-of-way
limits.
of
an
interstate
highway
within
the
city
The majority finds no ambiguity in the statute
and, thus, holds that Wolverine must obtain local consent
before constructing the pipeline.
believe
that
the
statute
is
I, on the other hand,
ambiguous
and
turn
to
the
legislative history accompanying the statute to discern the
Legislature’s true intent.
A review of the legislative
history
Legislature’s
indicates
that
the
intent
was
to
create a streamlined permit system that would not require
consent from each municipality a pipeline crosses.
On the
bases
of
of
the
history
of
the
statute
itself
and
the
legislative history recorded when the statute was enacted,
I would hold that Wolverine is not obligated to obtain
local consent.
2
I
agree
with
the
majority
that
this
case
involves
principles of statutory construction and that in construing
a
statute,
we
are
required
Legislature’s intent.
to
give
effect
to
the
I also agree that legislative intent
must be gleaned from the statutory text if the language is
unambiguous.
judicial
However,
construction
meaning.
In
re
MCI,
when
a
statute
is
necessary
to
460
Mich
is
411;
396,
ambiguous,
determine
596
its
NW2d
164
minds
can
(1999).
A
statute
is
ambiguous
when
differ regarding its meaning.
reasonable
Id.
My dissent in Yellow
Freight System, Inc v Michigan, 464 Mich 21, 38; 627 NW2d
236 (2001) (Cavanagh, J., dissenting), rev'd 537 US 36; 123
S Ct 37; 151 L Ed 2d 377 (2002), vacated and remanded 468
Mich 862; 659 NW2d 229 (2003), on remand 257 Mich App 602;
669 NW2d 553 (2003), outlined the generally accepted method
for making an ambiguity determination.
[W]hen there can be reasonable disagreement over
a statute’s meaning, see People v Adair, 452 Mich
473, 479; 550 NW2d 505 (1996), or, as others have
put it, when a statute is capable of being
understood by reasonably well-informed persons in
two or more different senses, that statute is
ambiguous.
See 2A Singer, Statutes & Statutory
Construction (6th ed), § 45.02, pp 11-12.
While
disagreed
the
with
majority
my
in
Yellow
determination
3
that
Freight
the
expressly
statute
was
ambiguous,1 the United States Supreme Court reversed the
decision of the majority and held that the statute was
ambiguous.
Yellow Transportation, Inc v Michigan, 537 US
36, 46; 123 S Ct 371; 154 L Ed 2d 377 (2002).
My
dissent
in
Yellow
Freight
collected
cases
where
this Court has found statutes ambiguous.
[T]his Court has concluded that statutes have
been ambiguous when one word in the statute has
an unclear meaning, see Perez v Keeler Brass Co,
461 Mich 602, 610; 608 NW2d 45 (2000), when a
statute’s interaction with another statute has
rendered its meaning unclear, see People v Denio,
454 Mich 691, 699; 564 NW2d 13 (1997), or when
application of the statute to facts has rendered
the correct application of the statute uncertain,
see Elias Bros v Treasury Dep’t, 452 Mich 144,
150; 549 NW2d 837 (1996). [464 Mich 38.]
In this case, application of the statute to the facts
has
rendered
the
correct
application
of
the
statute
uncertain.
1
In fact, the majority made the
Yellow Freight that they assert here:
same
argument
The
dissent
contends
that
the
statute
is
ambiguous, asserting that this is demonstrated by
“the several interpretations of its wording
advanced by the parties.”
If the parties’
conflicting interpretations were the measure of a
statute’s ambiguity, then almost every statute
litigated would be deemed ambiguous.
A statute
is not ambiguous because it requires careful
attention and analysis. [Yellow Freight, supra at
30 n 12.]
4
in
MCL 247.183, in pertinent part, reads:
(1) . . . public utility companies . . . may
enter upon, construct, and maintain . . . pipe
lines . . . 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
of
this
state,
with
all
necessary
erections and fixtures for that purpose. A . . .
public utility company . . . , before any of this
work is commenced, shall first obtain the consent
of the governing body of the city . . . 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[]
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 majority’s statutory analysis begins and ends with
the dictionary definition of “subject to.”
concludes
that
requirements
“subject
of
to”
subsection
does
1
do
“not
not
The majority
mean
apply
that
to
utilities that are covered also by subsection 2.”
8.
the
those
Ante at
While the majority uses a double negative to hedge, I
think the more direct statement to be gleaned from the
inclusion
of
“subject
to”
in
subsection
1
and
its
conspicuous absence from subsection 2 is that subsection 2
utilities
subsection
may
1.
not
be
“subject
Because
to”
subsection
5
the
2
requirements
utilities
are
of
a
specific
group
of
federally
defined
utilities
that
are
subject to regulations beyond those imposed on the broad
general utilities in subsection 1, I think it is fair to
say that the Legislature may have intended to create a
regulatory scheme specific to the more-regulated entities.
Thus,
subsection
local
it
is
that
1,
unclear
public
consent,
subsection 2.
applies
whether
utility
to
a
the
requirement
companies
utility,
must
as
in
obtain
defined
in
When reading subsection 1 alone it appears
that all public utilities must obtain local consent before
constructing pipelines in any public place.
subsection
defined
2
alone,
utilities
however,
may
it
construct
appears
When reading
that
pipelines
federally
longitudinally
within limited access highway rights-of-way as long as they
comply with the applicable state standards.
sections
are
read
together,
it
is
When the two
unclear
whether
subsection 2 utilities must comply with the local consent
requirement in subsection 1.
“It
is
a
well-established
rule
of
statutory
construction that provisions of a statute must be construed
in light of the other provisions of the statute to carry
out the apparent purpose of the Legislature.”
Total
Petroleum,
(1993).
Inc,
442
Mich
201,
209;
Farrington v
501
NW2d
76
Here, the majority fails to construe subsection 1
6
in light of subsection 2 and, thus, concludes that the
statute is not ambiguous.
I cannot agree that the meaning of MCL 247.183 is
clear and unambiguous.
A statute is ambiguous if there can
be reasonable disagreement over the statute’s meaning.
re MCI, supra at 411.
The meaning of this statute is
subject to reasonable disagreement.
argument
that
In
subsection
2
There is a reasonable
imposes
requirements,
in
addition to those imposed by subsection 1, on utilities
that meet the definition of utility in 23 CFR 645.105, and
that are looking to construct lines longitudinally within
limited access highway rights-of-way.
Under this reading
of the statute, subsection 2 utilities would be required to
obtain local consent.
However,
there
is
also
a
reasonable
argument
that
subsections 1 and 2 apply to different entities and that
subsection 2 entities are excepted from the requirements of
subsection 1.
Because there are at least two reasonable
interpretations of MCL 247.183, the statute is ambiguous.
When a statute is ambiguous, judicial construction is
appropriate.
stated,
it
In
is
a
re
MCI,
maxim
supra
of
at
411.
statutory
As
previously
construction
that
“provisions of a statute must be construed in light of the
other provisions of the statute . . . .”
7
Farrington, supra
at 209.
In construing subsection 1 in light of subsection
2, I find that the Legislature intended to create a special
process
for
construct
federally
pipelines
defined
utilities
longitudinally
within
that
wish
limited
to
access
highway rights-of-way.
The statutory and legislative history further supports
the
conclusion
that
the
Legislature
did
not
intend
for
federally defined utilities, such as Wolverine, to have to
obtain
local
longitudinally
consent
in
before
limited
access
constructing
highway
pipelines
rights-of-way.
When the statute governing construction and maintenance of
pipelines
address
was
originally
longitudinal
longitudinal
use
of
enacted
in
1925,
rights-of-way.2
interstate
highway
it
Until
did
not
1988,
rights-of-way
required a permit from the Federal Highway Administration.
2
Section 13 of 1925 PA 368 provided, in pertinent
part:
Telegraph, telephone, power and other public utility
companies and municipalities are authorized to enter upon,
construct, and maintain . . . pipe lines . . . upon, over,
across, or under any public road, bridge, street or public
places and across or under any of the waters in this state,
with all the necessary erections and fixtures therefor:
Provided that every such . . . public utility company . . .
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.
8
In 1988, the federal regulations were amended to allow use
of longitudinal rights-of-way in accordance with federal
regulations if such use was permitted by the state.
See 23
CFR 645.105.
The Michigan statute was amended in 1989 to reflect
this
change.
longitudinally
added
to
1989
within
subsection
PA
215.
limited
1,
and
access
the
subsection 2 to the statute.3
The
phrase
rights
Legislature
of
“except
way”
also
was
added
Essentially, MCL 247.183(1)
provided that certain entities were authorized to construct
pipelines upon, over, across, or under any public place,
3
When subsection 2 was added in 1989, it read:
The state transportation department may permit a
utility as defined in 23 CFR 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 a reasonable
charge
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.
9
except
within
limited
access
highway
rights-of-way.
In
other words, according to subsection 1, Michigan generally
did not allow longitudinal use of limited access highway
rights-of-way.
subsection
While
1,
general
subsection
2
use
was
allowed
prohibited
federally
by
defined
utilities to obtain a permit to use the rights-of-way.
In 1994, the statute was amended again.
1994 PA 306.
The focus of the 1994 amendments was ensuring that it was
feasible
for
utilities
highway rights-of-way.
charged
for
to
construct
in
limited
access
To this end, the fees that could be
longitudinal
use
of
limited
access
highway
rights-of-way were adjusted and the nature of the permit
system
was
subsection 1.
altered
by
changing
the
phraseology
of
In pertinent part, Senate Bill 1008 looked
like this:
Sec. 13. (1) Telegraph, telephone, power, and
other public utility companies,
and
cable
television companies, and municipalities
are
authorized to
MAY enter upon, construct and
maintain telegraph, telephone, or power lines,
pipe lines, wires, cables, poles, conduits,
sewers and like
OR SIMILAR structures upon,
over, across, or under any public road, bridge,
street, or public place,
except
INCLUDING,
SUBJECT TO SUBSECTION (2), longitudinally within
limited access highway rights of way . . . .
Notably,
the
word
“except”
was
replaced
phrase “including, subject to subsection (2).”
with
the
In other
words, the 1994 statutory amendment changed Michigan from a
10
state that generally did not allow entities to use limited
access
highway
rights-of-way,
at
least
not
without
a
permit, to a state that generally does allow use of limited
access
highway
rights-of-way,
even
though
that
use
is
subject to the requirements contained in subsection 2.
Before
pipeline
the
1994
amendments,
construction
in
public
subsection
areas,
1
but
permitted
prohibited
construction within limited access highway rights-of-way.
Subsection 1 also required local consent.
the
other
hand,
Transportation
utilities
highway
to
to
allowed
issue
construct
the
permits
pipelines
rights-of-way.
After
Subsection 2, on
state
to
Department
federally
within
the
defined
limited
1994
of
access
amendments,
subsection 1 still permits construction in public areas,
but it also provides that entities may construct pipelines
longitudinally within limited access highway rights-of-way.
The
second
sentence
of
subsection
utilities to obtain local consent.
1
still
requires
Subsection 2 now states
that a utility may construct within limited access highway
rights-of-way if the utility pays a fee and conforms to
state standards that comport with the federal standards; it
no longer requires a state permit from the Department of
Transportation.
11
While the history of the statute and the amendments
themselves
intent,
provide
the
some
legislative
insight
into
analyses
the
and
Legislature’s
the
documents
contained in the House and Senate committee files provide
even more insight.
that
“a
I recognize that this Court has held
legislative
analysis
is
legislative
intent
and
unpersuasive
tool
statutory
of
is
a
feeble
therefore
indicator
a
of
generally
construction.”
Frank
W
Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624
NW2d
180
(2001).
However,
this
Court
more
recently
recognized
the benefit of using legislative history when a
statute is ambiguous and construction of an
ambiguous provision becomes necessary.
Stajos v
City of Lansing, 221 Mich App 223; 561 NW2d 116
(1997); People v Hall, 391 Mich 175; 215 NW2d 166
(1974); Liquor Control Comm v Fraternal Order of
Eagles, Aerie No 629, 286 Mich 32; 281 NW 427
(1938). . . . Examples of legitimate legislative
history include . . . actions of the Legislature
in considering various alternatives in language
in statutory provisions before settling on the
language actually enacted.
See, e.g., Miles ex
rel Kamferbeek v Fortney, 223 Mich 552, 558; 194
NW 605 (1923). . . .
By comparing alternative
legislative drafts, a court may be able to
discern the intended meaning for the language
actually enacted.
[In re Certified Question
(Kenneth Henes Special Projects Procurement,
Marketing and Consulting Corp v Continental
Biomass Industries, Inc), 468 Mich 109, 115 n 5;
659 NW2d 597 (2003).]
The “various alternatives in language” examined by the
Court
in
Miles
were
statutory
12
amendments
made
over
a
twenty-six year period.
In that case, this Court found it
telling that the Legislature eliminated words in 1917 that
were added in 1909 and remained through the 1915 amendment.
The amendments were to the general election law, which at
the
time
of
the
election
in
question
required
election
inspectors to indorse all ballots “in ink or with indelible
pencil.”
the
Miles, supra at 553.
Legislature’s
deletion
of
This Court concluded that
the
words
“or
with
lead”
signified legislative intent to remove the possibility of
signature with lead pencils.
Although
the
Id. at 558, 564.
Legislature
added
and
then
removed
specific term in Miles, that was not the case here.
this
case,
the
Legislature
did
not
eliminate
a
In
the
possibility of constructing pipelines longitudinally within
limited access highway rights-of-way; rather, it subjected
such construction to the requirements of subsection 2 only.
It is clear from both the text of the statute and the
legislative analysis of the 1989 amendment that the 1989
amendment
was
intended
to
eliminate
local
control.
Subsection 1 of the 1989 amendment prohibited construction
within
limited
access
highway
rights-of-way.
Thus,
the
local consent requirements of subsection 1 clearly did not
apply
to
the
prohibited
actions.
See
also
Senate
Legislative Analysis, HB 4767, October 11, 1989 (“The bill
13
would amend Public Act 365 of 1925 . . . to authorize the
Department of Transportation, rather than local governing
bodies, to permit the longitudinal construction of utility
lines
.
.
.
within
limited
access
highway
rights-of-
way. . . .”)
However, the 1989 amendment of MCL 247.183 is not the
language at issue because the most recent amendment of the
statute was the 1994 amendment.
clearly
indicate
require
federally
whether
the
defined
While the statute does not
Legislature
utilities
to
intended
obtain
to
local
consent, it appears that the lack of clarity is the result
of a clerical error and the intent was not to reverse the
1989
elimination
of
local
control.
The
legislative
analysis accompanying the 1994 amendment suggests that the
purpose of the amendment was simply to ensure that it was
feasible
for
rights-of-way.
utilities
to
use
limited
access
highway
This was accomplished by adjusting the fees
for longitudinal use of limited access highway rights-ofway
and
increase
ensuring
in
that
highway
the
state
maintenance
standards
costs.
prevent
See
an
Senate
Legislative Analysis, SB 1008, August 3, 1994.
The House and Senate journals provide further support
for the notion that the Legislature did not intend the
amendment to impose a requirement that federally defined
14
utilities obtain local consent.
The journals indicate that
SB 1008 was passed without a single “nay” vote in either
the House or Senate and the only amendments of the proposed
bill were to subsection 2, which deals with the fees to be
charged
for
longitudinal
rights-of-way.
use
of
limited
access
highway
1994 Journal of the Senate 1558, 1578; 1994
Journal of the House 1639, 1978-1979.
In addition to the journals, the standing committee
records from the Senate Technology and Energy Committee and
the discussions regarding the bill on the Senate floor also
provide support for the notion that the Legislature did not
intend to subject federally defined utilities to the local
consent requirement.
The Senate Committee on Technology
and Energy held a committee hearing on March 23, 1994.
Included
in
the
committee
records
are
the
Senate
Legislative Analysis, an analysis of the Senate Majority
Policy Office, and written testimony of General Telephone
and
Electronics
and
the
Michigan
Department
of
Transportation.
The analysis from the Senate Majority Policy Office
states, “Senate Bill 1008 would amend current law to permit
a utility to enter and construct utility services along the
longitudinal
axis
of
a
limited
access
highway
using
standards adopted by the State Transportation Commission.
15
The amendatory language would also eliminate the ability of
the
state
to
deny
access
to
these
locations
for
construction of utility services.”
Senate
Bill
1008,
which
resulted
in
the
1994
amendments of the act, was introduced by Senator Hoffman.
SB 1008 was introduced on February 8, 1994, and sent on to
the House of Representatives on April 26, 1994.
On June
12, 1994, the bill returned from the House to the Senate
with
minor
amendments
and
Senator
Hoffman
bill on the Senate Floor before a vote.
explained
the
He explained that
the House of Representatives made two amendments to the
bill
concerning
the
fee
structure
limited access highway rights-of-way.
for
constructing
in
He conveyed that the
Department of Transportation and the major state utilities
concurred in the changes and he urged the Senate members to
concur as well.
Audio Tape: Michigan State Senate Session
(June 21, 1994)(on file at the State of Michigan Archives).4
If
the
amendment
were
meant
to
remove
the
state’s
power to deny access to these locations, it certainly could
4
Without stating what is missing from my alleged
recitation of “various random facts,” the majority asserts
that this dissent is underinclusive.
Ante at 12.
A few
breaths later, however, the majority asserts that I have
included a useless “bit of legislative history.”
Ante at
20. I am at a loss for how to respond to a majority that
wants everything and nothing at the same time.
16
not have been meant to grant this power to local entities,
thus making it more cumbersome and maybe even impossible to
construct
within
limited
access
highway
rights-of-way.
After reviewing the language used in the statute and the
legislative history, I cannot believe that the Legislature
intended to subject federally defined public utilities to
local consent requirements.
Because I believe that the statute is ambiguous and
the
true
legislative
intent
was
not
to
require
local
consent when federally defined utilities wish to construct
pipelines
longitudinally
within
limited
access
rights-of-way, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
17
highway
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