Michigan Supreme Court Lansing, Michigan

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman 

# Opinion

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**  **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**  **Michigan Public Service application**  **Commission (PSC).**

**I is submitted to**  **the**

**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** 

**1 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 req uire local consent before**  **construction began, but not before the applicant sought PSC approval. 257 Mich App 1, 16; 666 NW2d 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 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 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.**

**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., MCL 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** 

**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 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 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 . . . .” MCL**  **247.183. We note also that the PSC’s applicable rule, 1999 AC, R 460.17601(2)(d),**  **indicates that applications for new construction of utility facilities “shall set forth, or by attached exhibits show,**  **. . . [t]he municipality from which the appropriate franchise or consent has been obtained, 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 upon utilities such as Wolverine Pipe Line**  **Company. 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 language of MCL 247.183, the dissent prefers to divine what it**  **characterizes as the Legislature’s “true intent.”** Post **at 1.**  **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. Among other salutary consequences, this approach to 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 and either substitute**  **presumptive “rule[s] of policy,” see** Klapp 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 wanting. 6**  Klapp, supra **at 474. Where the majority applies these conventional rules and concludes**  **that the language of MCL 247.183 can be 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 for discerning ambiguity. The dissent would**  **hasten findings of “ambiguity” by courts by predicating these findings on the basis of whether “reasonable minds**  **can differ regarding” the meaning of a statute.** Post **at 3. Especially in the context of the types of cases 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. The law is not ambiguous whenever a**  **dissenting (and 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 it to mean another, neither may have**  **concluded that the law is “ambiguous,” and their disagreement by itself does not transform that which is**  **unambiguous into that which is ambiguous. Rather, a provision of the law is ambiguous only if it**  **“irreconcilably conflict[s]” with another provision,** id **. at 467, or when it is**  equally **susceptible to more than a single meaning. 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 imperfect, interpretation of the law—the**  **dissent would create a judicial regime in 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 Moreover, the dissent**  **implies that the decision of the 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. We believe this is a misreading of** Yellow Transportation. **The United States Supreme Court established no rule in**  Yellow Transportation **for determining or resolving statutory ambiguity. 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 construction techniques are not of this genre. 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 must follow that construction even if alternative constructions are also reasonable. We deal**  **with no such situation in this case, and thus** Yellow

16Transportation **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. Rather, we assert that “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,” p 8, and further assert that the “including, subject to subsection (2)” language in subsection 1 makes**  **“the implication . . . even stronger that the two subsections are to be read in combination.” Pp 7-8. It is**  **the dissent that misapprehends the relationship 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. The**  **interpretative process does not, as the dissent does,**

17**remove words and provisions from their context, infuse these words and provisions with**  **meanings that are independent of such context, and then reimport these**  **context-free meanings back into the law. 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 provisions are**  **made “subject to subsection (2).” 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 esse**  **ntially ignoring the term**

18**“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 the correct application of the statute**  **uncertain.”** Post **at 4. It is hard to know what this means. 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. This**  **majority’s view of the law is that,** whenever **a public utility constructs a pipeline or other utility 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

19Biomass Ind, Inc **), 468 Mich 109, 115 n 5; 659 NW2d 597 (2003), this Court emphasized that not all legislative**  **history is of equal value, which “results in varying degrees of quality and utility of legislative history.”**  **There, we stated that examples of “the highest quality of legislative history that relates to an action of the**  **Legislature from which a court may draw 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 we have found are of “considerably diminished quality,” and thus “are entitled to little**  **judicial consideration in resolving ambiguous statutory provisions . . . .”**  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 constructing utility projects in longitudinal highway rights-of-way? How does this**  **demonstrate anything more than that the Legislature 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 find support for our view, rather than the dissent’s. Regardless of the vote count, the change that**  **was enacted turned “** except **longitudinally within limited access highway rights-of-way” to “**  including **, subject to subsection (2), longitudinally within limited access**  **highway rights-of-way.” We find this legislative action to be a strong indication 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 . . . .”**  Post **at 16-17. Perhaps, the dissent's assertion is correct, but it is**  **hardly self-evident. There is nothing that 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? What is the evidence in support of the existence of such a “clerical error”? Is the dissent**  **justifying its conclusion that MCL 267.183 is “ambiguous” on the basis of a “clerical er**  **ror”? Or is the dissent, instead, asserting that the 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 public utilities to local consent**  **requirements.”** Post **at 17. 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. However, local consent is not**  **required at the time of 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**_______________________________ v**  **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,** 

**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. Because I believe the true**  **intent of the Legislature must be given effect, I respectfully dissent. 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 case requires us to examine MCL 247.183 to**  **determine whether defendant Wolverine Pipe Line Company (Wolverine) must obtain permission from plaintiff city of**  **Lansing to construct a gas pipeline longitudinally in the right-of-way of an interstate highway within the city**  **limits. The majority finds no ambiguity in the statute and, thus, holds that Wolverine must obtain local consent**  **before constructing the pipeline. I, on the other hand, believe that the statute is ambiguous and turn to the**  **legislative history accompanying the statute to discern the Legislature’s true intent. A review of the legislative**  **history indicates that the Legislature’s intent was to create a streamlined permit system that would not require**  **consent from each municipality a pipeline crosses. On the bases of the history of the statute itself and of 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 to give effect to the**  **Legislature’s intent. I also agree that legislative intent must be gleaned from the statutory text if the language is**  **unambiguous. However, when a statute is ambiguous, judicial construction is necessary to determine its**  **meaning.** In re MCI **, 460 Mich 396, 411; 596 NW2d 164 (1999).**  **A statute is ambiguous when reasonable minds can differ regarding its meaning.**  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 the majority in**  Yellow Freight **expressly disagreed with my determination that the statute was** 

**3 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 same argument in**  Yellow Freight **that they assert here:**

**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 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.” The majority concludes that “subject to” does “not mean that the**  **requirements of subsection 1 do not apply to those utilities that are covered also by subsection 2.”**  Ante **at 8.**  **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 may not be “subject to” the requirements of subsection 1. Because subsection 2 utilities are a** 

**5 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, it is unclear whether the requirement in subsection 1, that public utility companies must obtain**  **local consent, applies to a utility, as defined in subsection 2. When reading subsection 1 alone it appears**  **that all public utilities must obtain local consent before constructing pipelines in any public place. When reading**  **subsection 2 alone, however, it appears that federally defined utilities may construct pipelines longitudinally**  **within limited access highway rights-of-way as long as they comply with the applicable state standards. When the two**  **sections are read together, it is 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.”** Farrington v Total Petroleum, Inc **, 442 Mich 201, 209; 501 NW2d 76 (1993). 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.**  In re MCI, supra **at 411. The meaning of this statute is subject to reasonable disagreement. There is a reasonable**  **argument that subsection 2 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.**  In re MCI **,** supra **at 411. As previously stated, it is a maxim of statutory construction that**  **“provisions of a statute must be construed in light of the other provisions of the statute . . . .”**  Farrington **,** supra

**7 at 209. In construing subsection 1 in light of subsection**  **2, I find that the Legislature intended to create a special process for federally defined utilities that wish to**  **construct pipelines longitudinally within limited 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 consent before constructing pipelines**  **longitudinally in limited access highway rights-of-way. When the statute governing construction and maintenance of**  **pipelines was originally enacted in 1925, it did not address longitudinal rights-of-way.**  **2 Until 1988,**  **longitudinal use of interstate highway 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. 1989 PA 215. The phrase “except longitudinally within limited access rights of way” was**  **added to subsection 1, and the Legislature also added subsection 2 to the statute.**  **3 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. While general use was prohibited by**  **subsection 1, subsection 2 allowed federally 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 to construct in limited access highway rights-of-way. To this end, the fees that could be**  **charged for longitudinal use of limited access highway rights-of-way were adjusted and the nature of the permit**  **system was altered by changing the phraseology of subsection 1. 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 with the**  **phrase “including, subject to subsection (2).” 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 the 1994 amendments, subsection 1 permitted pipeline construction in public areas, but prohibited**  **construction within limited access highway rights-of-way. Subsection 1 also required local consent. Subsection 2, on**  **the other hand, allowed the state Department of Transportation to issue permits to federally defined**  **utilities to construct pipelines within limited access highway rights-of-way. After the 1994 amendments,**  **subsection 1 still permits co nstruction 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 1 still requires utilities to obtain local consent. 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 provide some insight into the Legislature’s intent, the legislative analyses and the documents**  **contained in the House and Senate committee files provide even more insight. I recognize that this Court has held**  **that “a legislative analysis is a feeble indicator of legislative intent and is therefore a generally**  **unpersuasive tool of statutory 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 amendments made over a**

**12 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.”**  Miles **,** supra **at 553. This Court concluded that the Legislature’s deletion of the words “or with lead”**  **signified legislative intent to remove the possibility of signature with lead pencils.**  Id **. at 558, 564. Although the Legislature added and then removed a**  **specific term in** Miles **, that was not the case here.** In this case **, the Legislature did not eliminate 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. While the statute does not clearly indicate whether the Legislature intended to**  **require federally defined utilities to obtain 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 utilities to use limited access highway rights-of-way. This was accomplished by adjusting the fees**  **for longitudinal use of limited access highway rights-of**   ** way and ensuring that the state standards prevent an** **increase in highway maintenance costs. See 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 tha t 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 use of limited access highway**  **rights-of-way. 1994 Journal of the Senate 1558, 1578; 1994 Journal of the House 1639, 1978-1979.**  **In addition to the jo urnals, 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 explained the bill on the Senate Floor before a vote. He explained that**  **the House of Representatives made two amendments to the bill concerning the fee structure for constructing in**  **limited access highway rights-of-way. 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 highway**  **rights-of-way, I must respectfully dissent. Michael F. Cavanagh**  **Marilyn Kelly**

**17**