Mayor of City of Lansing v. MICHIGAN PSC

• Decision Date: 09 June 2004
• Docket Number: Docket No. 124136, Calendar No. 10.
• Citation: 470 Mich. 154,680 N.W.2d 840
• Parties: MAYOR OF the CITY OF LANSING, City of Lansing, and Ingham County Commissioner Lisa Dedden, Appellees/Cross-Appellants, v. MICHIGAN PUBLIC SERVICE COMMISSION and Wolverine Pipe Line Company, Appellants/Cross-Appellees.
• Court: Michigan Supreme Court

680 N.W.2d 840

470 Mich. 154

MAYOR OF the CITY OF LANSING, City of Lansing, and Ingham County Commissioner Lisa Dedden, Appellees/Cross-Appellants, v. MICHIGAN PUBLIC SERVICE COMMISSION and Wolverine Pipe Line Company, Appellants/Cross-Appellees.

Docket No. 124136, Calendar No. 10.

Supreme Court of Michigan.

Argued November 12, 2003.

Decided June 9, 2004.

Plunkett & Cooney, P.C. (by Mary Massaron Ross) Detroit, MI, and Office of Lansing City Attorney (by James D. Smiertka, John M. Roberts Jr., Margaret E. Vroman, and Brian W. Bevez) Lansing, MI, for the Mayor of the city of Lansing and the city of Lansing.

Dykema Gossett, PLLC (by Albert Ernst and Christine Mason Soneral) Lansing, MI, (Paul O'Konski, of counsel) Houston, TX, for the Wolverine Pipe Line Company.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David A. Voges, Michael A. Nickerson, and William W. Derengoski, Assistant Attorneys General, Lansing, MI, for the Public Service Commission.

Miller, Canfield, Paddock and Stone, P.L.C. (by Dean M. Altobelli), Lansing, MI, for the Michigan Municipal League, amicus curiae.

TAYLOR, J.

In this case, we are called on to determine if defendant Wolverine Pipe Line Company (Wolverine) must obtain the permission of the city of Lansing before constructing a gas pipeline longitudinally in the right-of-way 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 is an interstate common carrier that constructs, operates, and maintains pipelines used for transporting petroleum products. It planned to construct a twenty-six-mile liquid petroleum pipeline along the Interstate-96 (I-96) corridor, within the right;of-way of the interstate highway. Although the land is under the control and 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. The mayor and the city, as well as Ingham County Commissioner Lisa Dedden, were allowed to intervene in the PSC proceeding.¹ The application was treated as a contested case and a hearing was held. 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. The PSC denied the 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 M.C.L. § 247.183 and determined that the statute did require local consent before construction began, but not before the applicant sought PSC approval. 257 Mich.App. 1, 16, 666 N.W.2d 298 (2003). Both sides sought leave to appeal. Wolverine and the PSC asserted that no local approval is required, and the city argued that approval is required during the application stage. This Court granted leave to appeal on both applications. 469 Mich. 898 (2003).

II

We review de novo a question of statutory construction. 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 N.W.2d 175 (2003). We use the same rules of construction both for statutes and for administrative regulations. Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 756-757, 330 N.W.2d 346 (1982).

III

The statute that controls this case is M.C.L. § 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 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, 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 is that the quoted 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. Because such constructions are to be avoided, and 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.

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., M.C.L. §§ 15.443, 18.1237, and 168.677. That is, both subsections are applicable 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 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 what the Legislature has actually made the law. 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 N.W.2d 751 (1998). We therefore affirm the Court of Appeals decision that subsection 1 as well as subsection 2 control and Wolverine is required by M.C.L. § 247.183 to get local consent before constructing its pipeline longitudinally in the right-of-way of I-96.

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....